Flying home causes a certain kind of anxiety. The officer behind the glass who is in charge of your life’s next chapter, the long lines, and the fluorescent lights. It lasts a few minutes for most people. Chinese citizen and lawful permanent resident Muk Choi Lau’s 2012 return via New York’s JFK Airport resulted in over ten years of legal disputes and, now, a Supreme Court decision that will have far-reaching implications.
In Blanche v. Lau, the conservative majority of the Supreme Court ruled 6-3 on Tuesday, essentially shifting the balance of power at the border from green card holders to federal immigration officials. In his majority opinion, Justice Clarence Thomas ruled that border guards do not have to provide “clear and convincing evidence” that a lawful permanent resident committed a crime in order to revoke their re-entry status. It suffices to have a reasonable belief supported by something akin to an indictment. That may seem like a specific procedural detail. It isn’t.
The practical impact is substantial. Green card holders who take short trips overseas are typically assumed to have the right to return home under U.S. immigration law. The idea that lawful permanent residency is a legal commitment rather than a temporary arrangement has long been a fundamental component of what it truly entails. The decision on Tuesday erodes that promise in ways that immigrant advocacy organizations have long cautioned about. Remember that an indictment is a charge. Not a conviction. Not a confession of guilt. It is a charge.
This is made concrete by Lau’s circumstances. He was flagged by JFK officials for pending trademark counterfeiting charges in New Jersey while he was returning from China. Instead of being granted official re-admission, he was granted conditional parole. He entered a guilty plea to the charge a year later. The government’s ability to treat him as inadmissible prior to that guilty plea—before any court had found him guilty of anything—was the legal question the court was actually addressing. Yes, the court ruled. Sequencing is more important than it may seem.
In a scathing dissent, Justice Ketanji Brown Jackson, along with Justices Sonia Sotomayor and Elena Kagan, warned that the majority had given the government a “massive blank check.” Her worry wasn’t theoretical. Life becomes noticeably more difficult once a green card holder’s status is suspended at the border, even for a brief period of time. Everything becomes unclear, including work permits, banking access, and the capacity to carry out regular business. Jackson contended that Congress had specifically included safeguards in immigration legislation to avoid situations like this, in which the government takes action first and then develops its case.
The extent to which border agents will use this new power is still unknown. In a time when immigration enforcement has been politically charged, there is a perception in legal circles that the decision may be applied selectively or may become a more common tool. Tuesday’s ruling gives officials a significant new lever to pull, and the current administration has demonstrated little reluctance in pushing the limits of immigration law.
As this develops, the discrepancy between what legal residency is meant to mean and what it now seems to guarantee remains. For a long time, a green card has been regarded as a document that certifies your place in the country. According to this decision, belonging may be suspended at the threshold based on an accusation prior to a courtroom’s decision. That is a significant detail for the estimated 13 million lawful permanent residents of the United States. The ground beneath their feet is changing.
