The Trump administration asked the Supreme Court on Wednesday to make it easier to deport green card holders with criminal records who leave the country and try to reenter.
As legal permanent residents, they generally have a right to return to the U.S., though there are some crimes that give the government the ability to block them.
The government wants to be able to defer that decision about blocking them to a later time, letting them in on a “parole,” which would make it easier to deport them later. But immigration advocates said that would upend green card holders’ rights under the law.
Justice Sonia Sotomayor seemed to agree.
“LPRs have a legal right to be here. They have a legal right to come back into the country,” the Obama appointee said, adding that it should be up to Congress to change the law if it wants to make it tougher for green card holders.
Immigration advocates have called the case a sleeping giant, particularly given President Trump’s aggressive approach to immigration enforcement.
That loomed large over Wednesday’s oral argument. Justice Ketanji Brown Jackson, a Biden appointee, worried that if they empower border officers with more leeway to stick green card holders in a legal limbo, it could get out of control.
“You could imagine a world in which a government that really is not interested in immigration and having immigrants here, living and working, could use this kind of thing to inappropriately parole people rather than admit them so that it depresses immigration,” she said.
Sopan Joshi, assistant solicitor general, said that assumed a conspiracy on the part of the government — one that he said just doesn’t exist.
He pointed out that the ability to stick returning green card holders into the limbo of parole has been policy for years and hasn’t produced the chaos Justice Jackson worried about.
“We don’t do that. It’s not in our interest to do that,” he said.
The case involved Muk Choi Lau, a Chinese citizen who held a U.S. green card. He was charged with counterfeiting in New Jersey, left the country and returned.
Rather than admit him outright, a Homeland Security border officer granted him parole, which is a sort of limbo that allowed him into the country but kept his legal status as if he were still at the border.
The standards for excluding someone at the border are lower than those for deporting someone who was formally admitted.
After some legal back and forth, including a subsequent conviction in the state case, Mr. Lau was ordered deported. He challenged that, saying he never should have been put into parole at the airport but rather should have been readmitted to the U.S.
A federal appeals court sided with him, saying DHS should have made its determination about his admissibility at the airport, and the law didn’t allow it to defer the decision until later.
That resonated with Justice Jackson.
“This person had a green card and they’re supposed to be let in,” she said.
But Justice Samuel A. Alito Jr., a George W. Bush appointee, was miffed at the idea that short of an actual conviction on one of a list of crimes, a green card holder must be let in.
He wondered about a case where a migrant had been flagged by foreign authorities as having just murdered someone in that other country.
“A charge does not show that the person has actually committed the offense,” responded Shay Dvoretzky, the lawyer for Mr. Lau.
Chief Justice John G. Roberts Jr. seemed troubled by that notion.
“It just seems to me to be pretty bizarre to say in that situation they couldn’t even be detained,” the Bush appointee said.
A legal permanent resident who is paroled has his actual green card taken away, and instead is given a new document that makes clear he has the same status — albeit with a time limit on it. Mr. Dvoretzky said that makes it tougher for green card holders to get jobs because employers can be reluctant to hire people in that tentative status.
Several of the justices suggested Mr. Lau and immigrant rights groups backing him would end up even worse off if he wins.
They said if the government loses its parole power in these instances, it could decide to detain every person it has questions about, holding them until a final decision is reached.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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