As the Supreme Court’s term winds down for the summer, the justices issued three immigration-related decisions last week that will likely particularly impact our border region.
Among them is Blanche v. Lau, a case over just how much power border officials have over green card holders.
In the case, an immigrant from China named Muk Choi Lau, a lawful permanent resident in the United States since 2007, traveled to his home country for a visit in 2012 while he had a pending criminal case involving trademark counterfeiting.
When he returned to the United States, the customs officer at the airport took away his green card and instead allowed him to enter the country on parole, which is a temporary, conditional status.
In June 2013, Lau pleaded guilty to a trademark counterfeiting charge, and the federal government opened an immigration court case against him. In the case, the government categorized him as an “applicant for admission” rather than a green card holder who had already been admitted. The legal standards for deporting someone differ based on those categories.
The attorney representing Immigration and Customs Enforcement argued that Lau had committed a “crime involving moral turpitude,” which allows a border official to find that someone is inadmissible to the United States. Because the government had categorized Lau as an applicant for admission, the immigration judge ruled that he was inadmissible and could be deported.
While the Board of Immigration Appeals upheld that decision, Lau appealed to the Second Circuit Court of Appeals, which vacated the decision, saying that the customs officer needed to have “clear and convincing” evidence that Lau had committed the crime, not just a pending charge that had not yet been adjudicated.
The top court disagreed. Last week, the Supreme Court said customs officers do not need to have clear and convincing evidence to find someone has committed a crime involving moral turpitude and keep them out of the country — even if they are lawful, permanent residents.
Justice Ketanji Brown Jackson wrote a 17-page dissent, joined by Justices Sonia Sotomayor and Elena Kagan.
In the dissent, she said that the majority’s decision takes away from immigrants the country’s fundamental principle of innocence until proven guilty.
Frederick Carroll, legal director with the American Civil Liberties Union of San Diego and Imperial Counties, said that the case does not provide clear standards for when border officials can exercise this kind of power, leaving it up to the individual officials’ discretion.
“If they leave the country, the terms lawful and permanent seem to have less meaning if any at all,” Carroll said. “Just the existence of an accusation against them strips away the lawful and permanent of the residency they had already applied for and gotten.”
He said it’s important for green card holders to know about this case’s outcome before deciding whether to travel abroad, especially in our region where many cross the border on a regular basis to visit loved ones. He encouraged people who are traveling to make sure they have back up copies of documents and that someone they trust has access to those documents and their itineraries.
“The status of the law now is that anyone with a pending criminal charge and legal, permanent resident status who leaves the country can expect to be paroled when they get back in, reconsidered for admission and potentially detained,” Carroll said.
The Case Against Asylum Seekers
The justices also decided Mullin v. Al Otro Lado, a case I’ve been covering since it began in 2017 that challenged the federal government’s practice of metering, or turning away asylum seekers who are approaching ports of entry to request protection.
While both the district court judge and appellate court sided with asylum seekers, saying that border officials have an obligation to process them so that they can go through the asylum screening process to see if they qualify as refugees, the Supreme Court sided with the federal government.
Justice Samuel Alito wrote in the majority opinion that the law requiring border officials to inspect people arriving in the United States does not kick in until that person sets foot on U.S. soil, and if something prevents that person from stepping onto U.S. soil, then the law doesn’t apply. Justice Clarence Thomas wrote a 7-page concurring opinion.
Sotomayor wrote a 35-page dissent, joined by Kagan and Jackson, and Jackson added an additional 6-page dissent of her own.
Sotomayor called the majority opinion “illogical,” and said that it prevented the federal government from having to follow an entire legal system set up by Congress.
“The Court today holds that the Executive Branch may circumvent all these mandatory procedures by having U. S. immigration officers stand at the border and physically
block noncitizens from setting a foot onto U. S. soil,” Sotomayor wrote. “They may do so even if the asylum seeker is at the threshold of a port of entry designated to receive all noncitizens who seek entrance into the country. Even if the port of entry has ample capacity to inspect that person, including an available asylum officer trained to process asylum applications. Even if the asylum seeker is certain to be persecuted, or killed, if she is turned away.”
Erika Pinheiro, executive director of Al Otro Lado, said that the justices’ decision violates international law.
“This decision has destroyed the United States’ position as a global leader in promoting the rights of refugees and threatens to serve as a dangerous justification for other countries that unlawfully prevent refugees from crossing borders in search of safety,” Pinheiro said. “In a world of increasing conflict and climate disaster, this hardening of borders to keep out the most vulnerable is sure to result in many more lives lost.”
The Temporary Protected Status Case
In a third case, the justices allowed the Trump administration to end temporary protected status for Haitians and Syrians. In the decision for Mullin v. Doe, Alito again delivered the majority opinion, finding that the law does not allow courts to review executive branch decisions involving temporary protected status unless the case involves questions of constitutionality.
Kagan wrote a 14-page dissent, joined by Sotomayor and Jackson. She said that the law allows for judicial review of whether the federal agency followed its own procedures, and she found that Haitians in particular had a strong claim that the government ended their protection from deportation because of racist beliefs and discrimination.
Guerline Josef, executive director of Haitian Bridge Alliance, told CBS8 that she’s still hopeful that Congress could pass a bill to protect Haitians. In the meantime, she said, her community is bracing for an increase in Immigration and Customs Enforcement arrests.
The Department of Homeland Security celebrated the three case outcomes, saying that the court had restored tools that it could use to stop immigration at the border.
“These three rulings are all victories for the rule of law and common sense,” DHS General Counsel James Percival said in a press release.
But, ACLU attorney Carroll said, the three decisions have complicated life for thousands of immigrants around the country, including many in San Diego, who have followed U.S. laws regarding their presence in the country.
“The message is clear,” Carroll said. “The administration and the court both are hostile to immigrants.”
Thank you for reading. I’m open for tips, suggestions and feedback on Instagram @katemorrisseyjournalist and on Bluesky @bgirledukate.
In Other News
Baja governor’s race: The mayor of Tijuana is taking a leave of absence to seek his party’s nomination for next year’s gubernatorial race, Alexandra Mendoza reported for The San Diego Union-Tribune.
Reflecting pool: MacKenzie Elmer reported for Voice of San Diego that a company that the federal government contracted to clean Washington’s reflecting pool also got a no-bid contract to do experimental treatments on the Tijuana River.
El Chavo Félix: A son-in-law of Sinaloa cartel co-founder Ismael “El Mayo” Zambada pleaded guilty to four charges relating to drug trafficking and money laundering conspiracy, Alex Riggins reported for The San Diego Union-Tribune.
Haitian fútbol: For KPBS, Gustavo Solis spent Haiti’s last World Cup match in Tijuana with a group of Haitians who have long called Mexico home.