U.S. Supreme Court to Weigh in on Plight of One LPR with a Criminal Background
Question:
Will the U.S. Supreme Court Chip Away at LPR Protections?
A recent case argued before the U.S. Supreme Court could affect what protections a LPR has when facing pending criminal charges, pursuant to 8 U.S.C. Sec. 1101(a)(13)(C)(v).
This case is a reminder that non-citizens have much more to lose than U.S. citizens if charged with a crime -- even something as minor as misdemeanor retail theft.
Any parent of a non-citizen emerging adult child must school them regarding the adverse consequences of getting into trouble with the law (e.g., legalization of cannabis under state law does not change it's status as a controlled substance and crime under federal law).
The immigration case of legal permanent resident (LPR) Muk Choi Lau (Lau), a Chinese national, which began more than a decade ago, will finally be resolved later this year by the U.S. Supreme Court.
Since President Trump’s return to office in January of 2025, some of his most brazen policies have dealt with his efforts to retrofit (or simply ignore) existing federal immigration laws and regulations to reflect his own biased view of who deserves to come to the U.S., set down roots, and raise a family.
Prior to Trump 2.0, few Green Card holders had reason to feel uneasy about their non-citizen status. In fact, there are some Green Card holders living in the U.S. who have no interest in becoming citizens.
Fifteen months into Trump 2.0, the legal landscape for Green Card holders has darkened. Today, someone possessing a Green Card can no longer assume s/he is immune from possible detention and deportation -- even if they’ve never been in trouble with the law. More recently, even the status of naturalized citizens is being threatened by this administration.
Against this turbulent backdrop, the final chapter in Lau’s immigration case will be written.
Background
In September of 2007, Lau was issued a Green Card. In May of 2012, Lau was charged in a New Jersey court with third-degree trademark counterfeiting, a felony. Not long after being charged, Lau elected to travel outside the U.S. The record does not reflect if Lau consulted an attorney regarding his travel plans before departing.
When Lau returned to the U.S. the following month, an immigration officer, noting the pending criminal complaint, refused to admit Lau into the country based on his LPR status. Instead, Lau was treated as an alien seeking admission to the U.S. for the first time. Lau was “paroled” into the U.S., subject to a deferred inspection. The U.S. Department of Homeland Security (DHS) took no action against Lau until his criminal case was concluded.
In June of 2013, Lau pled guilty to trademark counterfeiting and received a two-year probation sentence. On March 13, 2014, the DHS initiated removal proceedings against Lau, claiming that as an alien he was not eligible to be admitted into the U.S. due to his conviction for a crime involving moral turpitude (CIMT).[1] Lau disputed the DHS’s contention that he be treated as an alien or that his conviction is a CIMT.
In 2018, an immigration judge sided with the DHS, finding that because Lau had already committed the crime of trademark counterfeiting (a CIMT) when he sought reentry (albeit before pleading guilty), the DHS was correct in classifying Lau as an alien and paroling him in pending the outcome of his criminal case. In November of 2021, the immigration judge’s ruling was affirmed by the Board of Immigration Appeals (BIA).
Lau appealed the BIA’s ruling to the Federal Court of Appeals for the Second Circuit. In a decision issued in March of 2025, the Second Circuit sided with Lau, holding that the DHS erred in classifying him as an alien seeking admission. https://ww3.ca2.uscourts.gov/decisions/OPN/21-6623_opn.pdf The court of appeals vacated Lau’s final order of removal and remanded the case to the immigration judge with instructions to terminate the removal proceedings. The appeals court, however, acknowledged that the DHS could still deport Lau using other legal means.
The U.S. Department of Justice (DOJ) asked the high court to review the case. The U.S. Supreme Court agreed to hear the case; last month oral arguments were heard in the case. Court watchers are predicting the Court’s conservative majority will side with the DHS. https://www.scotusblog.com/2026/04/justices-debate-rights-of-lawful-permanent-residents-against-backdrop-of-trumps-immigration-crac/
The Court will answer a question lower federal appeals courts have been divided over: what does the phrase “has committed an offense” mean? The Court is expected to endorse the expansive reading of 8 U.S.C. § 1101(a)(13)(C)(v) of the Immigration and Nationality Act (INA).[2]
This is the section the DHS cited in justifying its decision to treat Lau as an alien when he sought reentry while a defendant in a pending criminal case. No one disputes Lau had not admitted, pled guilty, or been convicted of trademark counterfeiting when he sought reentry. That said, the more expansive interpretation of having committed a crime does not require the admission to or conviction of a crime.
Does Our Immigration System Faces an Uncertain Future?
Even if the Court were to decide in Lau’s favor, it would be a short-lived victory. The DHS would likely initiate new removal proceedings against Lau under other available means (i.e., having a CIMT conviction).
When it is all said and done, the long-range consequences of Lau’s case may prove minor. Even before Trump returned to office, many Green Card holders were well aware of the risks of being charged with a crime. Today, it is doubtful an LPR would make the same mistake Lau made in traveling outside the U.S. while facing criminal charges.
Of course, the risks facing LPRs who have pled or been convicted of a crime extends beyond travel. Anyone thinking of adjusting their legal status from LPR to U.S. Citizen must consult with an immigration attorney. It does not matter how old one’s conviction is or what is for under the current climate.
Trump 2.0’s attacks on LPRs, as well as DACA recipients, will only increase as ICE struggles to meet the unrealistic deportation goals set by Stephen Miller. It begs the question whether this administration, under the veneer of promising to arrest and deport only “the worst of the worst,” always intended to cast a far wider net.
ICE’s unprecedented arrests and detentions within our country’s borders has put the federal judicial system in a position of having to ensure that LPRs (and anyone in ICE custody) have their day in court. There are a record number of habeas corpus petitions pending in federal court today because it is the only way those detained by ICE can obtain their release from ICE custody while they fight being deported.
One of the reasons many people have sought relief from the federal courts is due to the efforts of the administration to reshape the role of the immigration court and its judges (IJs). Today, IJs are routinely fired for simply issuing a ruling that goes against the DHS. Earlier this week, DOJ shut down the entire San Francisco immigration court system – no doubt in part because IJs there were issuing too many rulings inconsistent with the government’s position.
Only time will tell if our legal immigration system can withstand Trump 2.0’s repeated attacks on the rule of law. That said, I was heartened by the public’s response to the events that took place in Minnesota and how the administration responded (firing key DHS personnel). Also heartening has been the universal outcry from local officials and residents across the U.S. on learning that the DHS intended to erect an ICE detention facility in their backyards.
If the DHS is blocked from opening these prisons Mr. Miller may just have to revise his deportation quotas.
[1] Federal immigration law does not include a definition for a CIMT. That said, broadly speaking, it is commonly understood that a CIMT includes conduct that runs contrary to justice, honesty, principle or good moral conduct.
[2] This section was added to INA by the Illegal Immigration Reform and Immigration Responsibility Act of 1996. To learn more about the origin of the 1996 amendment, please read the accompanying blog Why Some Immigrants Living in the U.S. Face an Uncertain Future.