On Wednesday, April 22, the Supreme Court will hear its third of four merits cases this Term in which the Solicitor General seeks to reverse lower courts on immigration issues. This case, Blanche v. Lau, should never have been granted and threatens the security of 12.8 million lawful permanent residents if they travel internationally for work, family emergencies, or other reasons. If you have not heard of the case, it is not surprising. Amid the firehose of litigation in all federal courts about the actions of the Trump administration, it is hard to keep up. The Lau case, however, has massive implications and is worthy of attention.
In Lau, the Solicitor General seeks a rule under which border officers could seize the green cards and place in limbo the legal status of any lawful permanent resident (LPR) after travel abroad, and do so for an indefinite time and without any judicial review. The government defends its position by suggesting that what the border officers did in Mr. Lau’s case was permissible because Mr. Lau was arrested for a crime prior to briefly traveling internationally and convicted a year after returning to the United States (with a sentence of probation).
The Solicitor General’s reply brief makes clear that the government’s attorneys did not properly examine the record before seeking certiorari. In a footnote, they concede that, “after a review of the entire record,” they have misstated the facts regarding where Mr. Lau flew into the country. That mistake might not be significant, but a closer look at the record shows that the power the government seeks in this case is disconnected with what happened on the ground.
In the government’s certiorari petition, the Solicitor General asserted that the case is about the power of the border officers to parole “for prosecution.” (Parole is a power used to allow a noncitizen into the country who otherwise could not come in or would be detained.) But that is not what happened.
When Mr. Lau arrived at Newark airport in 2012, the border officer made a plainly erroneous determination that Lau was subject to removal for a “crime involving moral turpitude” (CIMT) even though he had not been convicted nor admitted to any crime. She then told him that he was being referred to a Department of Homeland Security (DHS) office for them to issue a Notice to Appear (NTA), the charging document for immigration removal cases. That determination was erroneous because there is no arguable basis to issue an NTA to an LPR charged with a CIMT unless they have admitted to or been convicted of a relevant crime. The record does not explain what happened next, but somehow the case was transferred to the DHS’s New York office, which waited two years – until a year after Mr. Lau’s criminal case was resolved – to decide on its next steps. It then issued a charging document (oddly erroneously saying that Mr. Lau arrived at JFK). During the intermediate time (and presumably through today) Mr. Lau was without his green card and had nothing but a flimsy handwritten paper document to show that he is an LPR.
In short, there was no “parole for prosecution.” Yet the Solicitor General is asking the Court in this case to hold that DHS has an unlimited and unreviewable power to parole and place in limbo any LPR who travels abroad.
It is also completely clear on the record that DHS’s power to remove Mr. Lau does not depend on the legal issue before the Court, or the broad authority it seeks. DHS charged Mr. Lau with being convicted of a CIMT. For someone like Mr. Lau, who had been granted LPR status fewer than five years before his alleged crime, Congress provided a different route for DHS to seek deportation if his crime can be properly categorized as a CIMT. Therefore, there was no practical reason in his case for DHS to have charged him under the inadmissibility grounds that sometimes apply to LPRs who travel. The Solicitor General protests that the choice of removal grounds would matter in some other cases, but that is a strange basis for Supreme Court intervention.
So, in a case that is not about what happened in this case, and not about whether DHS can ultimately seek Mr. Lau’s removal, the Court is set to consider the Solicitor General’s broad plea for the power to place any LPR in limbo for an indefinite time after they travel, regardless of the reasons for the travel or any review of the basis of a border official’s decision to take away a green card and place the LPR in the uneasy and vulnerable state of parole.
If granted such powers, we can expect DHS to make use of them – if not today, at some time in the future. For the unlucky LPR targeted by a border officer, that means an indefinite time without readily identifiable proof of their status to show employers, departments of motor vehicles, ICE officers on the streets, and others. If the Solicitor General gets his way, all LPRs will have to consider the risk of arbitrary parole and possibly detention in deciding whether they can risk traveling for work, a family obligation, or any other reason. Notably, the Solicitor General’s reply has no answer to the scope of the power the government seeks or the harms it will cause, which are outlined in depth in amicus briefs from law professors and civil rights groups.
On the merits, there are many issues, only one of which has been briefed by the parties. The question for which issue is joined is when DHS must have an evidentiary basis for taking away an LPR’s green card and placing the LPR in a parole status. On that question, Mr. Lau’s attorneys have the better of the argument that the unanimous Second Circuit decision, authored by Judge Richard J. Sullivan, was correct. Judge Sullivan explained that the statute squarely requires that the border officer have sufficient evidence at the border before treating a returning LPR as “seeking” admission, and cannot simply parole an LPR and use later-in-time facts to justify their earlier action. The second question is what burden of proof should apply to decisions of border officers, assuming they are the relevant decisionmaker for deciding if an LPR is seeking admission. The Solicitor General expressly disclaimed interest in that question in the cert papers, saying in the final paragraph of its reply papers that the only question was when the rigorous clear and convincing evidence standard should apply. Now, in its reply on the merits, the Solicitor General argues for a never-before cited and exceptionally weak standard at the border. Given the government’s position in the court below and the certiorari papers, questions about the proper standard at the border should be considered forfeited. The final question is what substantive standard applies to the categories of LPRs who are seen as “seeking admission.” Is it those who are subject to removal under the statute or some broader category of LPRs who are not removable but DHS thinks might become removable? On that question, the Supreme Court previously concluded in Vartelas v. Holder (a 6-3 decision) that the better reading is the one advocated in the law professors’ amicus brief which looks to the substantive grounds for charging an LPR with inadmissibility. The Solicitor General has no good response to that argument. That issue is not briefed by the parties, other than the weak response by the Solicitor General to amici.
Altogether, this case should not be before the Court. The prudent course at this time would be for the case to be dismissed as improvidently granted.
