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    IMMIGRATION                                                               JULY 03, 2026    |  The Indian Eye 38

                           Blanche v. Lau: The Supreme Court Has

             Degraded the Rights of Lawful Permanent Residents

            BY CYRUS D. MEHTA          based  on  suspicion,  confiscate   es. Congress set a clear default:   ing that history, it becomes easier   undermines the security of LPR
            and KAITLYN BOX            the green card, wait for a con-  LPRs returning from abroad are   to recast the clear-and-convinc-  status at the border.
                                       viction, and then “travel back in   not to be treated as seeking ad-  ing standard as a backward-look-  The Supreme Court’s ruling
                  n April 23, 2025, the Su-  time” to satisfy its heavy burden   mission,  unless  the  government   ing formality in court, rather than   is tailor-made for abuse by any
                  preme Court heard oral   after the fact.         can show, in one of a few narrow   a real constraint on how and   administration  that  is  hostile  to
            Oargument  in  Blanche  v.     The facts in Blanche v. Lau   circumstances,  that  this  protec-  when the government may strip   immigrants and LPRs. By tak-
            Lau, a case that confronted the   illustrate the stakes. Mr. Lau, an   tion does not apply.  an LPR of the protections of ad-  ing the position that an LPR is
            issue of whether the government,   LPR who had traveled outside   Justice Thomas, writing for   mission at the border.  “seeking admission” rather than
            in seeking to remove a lawful   the U.S. with a pending charge   the 6–3 majority, took a narrow,   In the run-up to the deci-  arguing that the individual is
            permanent resident (LPR) who   of third-degree trademark coun-  text-focused view of the statute.   sion, the conservative justices   deportable, the government can
            was paroled into the United   terfeiting  in  New  Jersey  before   In his reading, INA 101(a)(13)  seemed to largely agree with the   more easily pursue removal. In
            States on the basis that he com-  being paroled into the country   (C) does not impose any “clear   government’s position, although   order to remove an LPR who
            mitted a crime involving moral   in 2012, argued that there is a   and convincing evidence” re-  Justice Jackson expressed con-  was  admitted, the government
            turpitude (CIMT) under INA   presumption  LPRs  are  already   quirement at the border itself.   cern  about the implications  of   would have to show that the indi-
            212(a)(2), must prove that it   admitted when they reenter the   Instead, it is enough that the gov-  this position, stating:  vidual had been “convicted of a
            possessed clear and convincing   U.S.  after  travel  abroad.  The   ernment ultimately proves in re-  “And my concern is that   crime involving moral turpitude
            evidence of the crime at the time   government, on the other hand,   moval proceedings, by clear and   I could actually see a world in   committed within five years” of
            of the LPR’s most recent reentry.  asserted that Lau falls within an   convincing evidence, that the   which [1] would be in the gov-  the admission. The government
                On June 23, 2026, in a 6–3   exception to this presumption   LPR fell within a 212(a)(2) ex-  ernment’s  interest.  And  it’s  a   must have clear and convincing
            decision,  the  Supreme Court   because he had already “com-  ception and was properly treated   situation  in  which  people  who   evidence in order to determine
            answered  that  question  in  the   mitted” a crime at the time of his   as seeking admission.  are lawful permanent residents   that an LPR is seeking admission
            government’s favor – and in do-  reentry, although he had not yet   The majority emphasizes   who have green cards leave the   after having committed a crime
            ing so, it sharply degraded the   been convicted.      administrative practicality  and   country and, when they return,   under INA 212(a)(2), and that
            statutory and  practical  protec-  Under INA 101(a)(13)(C)   continuity with past practice. Jus-  based on a suspicion or even   burden should only be met if the
            tions that Congress intended   an LPR shall not be regarded   tice Thomas stresses that border   an indictment that’s in the gov-  LPR has actually been convict-
            LPRs to enjoy when they return   as seeking admission in the US   officers routinely act on incom-  ernment’s control, they flag this   ed of the crime involving moral
            from trips abroad. The Court has   unless, among other things, the   plete information, and he rejects   person as being returning under   turpitude, or has admitted to the
            now authorized the government   LPR has committed an offense   the Second Circuit’s insistence   parole as opposed to lawful ad-  elements of the crime. Blanche v.
            to do precisely what the Second   identified  in  section  212(a)(2),   that DHS must already possess   mission. They take this person’s   Lau now allows the government
            Circuit in Lau v. Bondi warned   which includes crimes involving   clear and convincing evidence   green card, which then makes   to pretend that this burden can
            against: parole a returning LPR   moral turpitude or drug offens-  at the exact moment of reentry.   it much, much harder for this   be fulfilled retroactively.
                                                                      For the Court, the statute   person to actually live and work   An LPR can voluntarily ad-
                                                                      regulates the government’s   and continue in their life here   mit to the commission of a crime
                                                                      burden in  removal  pro-  in the United States, perhaps so   if he or she chooses to, but such
                                                                      ceedings, not the evidentia-  much so that this person self-de-  an admission needs to meet rigid
                                                                      ry threshold for front-line   ports because it’s really, really   criteria. The BIA has set forth
                                                                      CBP decisions.          difficult without a green card to   the following requirements for
                                                                          According to the ma-  operate in this country. So you   a  validly  obtained  admission:
                                                                      jority, nothing in the INA’s   could imagine a world in which   (1) the admitted conduct must
                                                                      text or structure forbids   a government that really is not   constitute the essential elements
                                                                      DHS from initially classi-  interested  in  immigration  and   of a crime in the jurisdiction in
                                                                      fying a returning LPR as   having immigrants here, living   which it occurred; (2) the appli-
                                                                      an applicant for admission   and working, could use this kind   cant must have been provided
                                                                      based on  an indictment or   of thing to inappropriately parole   with the definition and essential
                                                                      other  non-conviction  in-  people rather than admit them so   elements of the crime in under-
                                                                      formation, so long as the   that it depresses immigration.”  standable terms prior to making
                                                                      government later carries   Justice Jackson’s dissent   the admission; and (3) the admis-
                                                                      its heavy burden in court.   in Blanche v. Lau bears out ex-  sion must have been made volun-
                                                                      In  the  majority’s  view,  this   actly this concern. She squarely   tarily. See Matter of K–, 7 I&N
                                                                      approach preserves the   recognizes how dangerous it is   Dec. 594 (BIA 1957).
                                                                      government’s  flexibility  to   to allow officers to strip an LPR   The Board of Immigration
                                                                      police the border while still   of the presumption of admission   Appeals also held in Matter
                                                                      requiring clear and convinc-  based on allegation or indict-  of Guevara, 20 I&N Dec. 238
                                                                      ing proof before an LPR is   ment, then let the government   (1990) that an alien’s silence
                                                                      actually ordered removed.   justify that downgrade years later   alone does not provide sufficient
                                                                      One striking omission in   once a conviction is in hand. Un-  evidence under the standard in
                                                                      Justice  Thomas’s  majority   fortunately, the majority brushed   Woodby v. INS, which held that
                                                                      opinion is any engagement   those concerns aside.  the burden was on the govern-
                          m of                                        with  Woodby v.  INS,  385   If the Supreme Court had   ment to prove by “clear, unequiv-
               CYRUS D. MEHTA & PARTNERS PLLC                         U.S. 276 (1966), the very   sided with the Second Circuit and   ocal, and convincing evidence”
                                                                                              with Lau, it would have held that
                                                                                                                         that the LPR should be deported
                                                                      case in which the Court it-
                                                                                                  self articulated the “clear,   an LPR who is accused of com-  from the United States. This has

                 unequivocal,  and  convinc-  mitting a crime and paroled into   also been more recently affirmed
                                                                      ing” standard in deporta-  the U.S. is still treated as already   by the Board of Immigration

                                tion proceedings. Woodby   admitted unless the government   Appeals in Matter of Rivens, 25

                        is not merely background   can  clearly and convincingly   I&N Dec. 623 (BIA 2011).

                                                                       noise;  it  is  the  foundation-  show, at the time of reentry, that   As the late Justice Ginsburg
                                                                      al precedent that explains   a 212(a)(2) exception applies.   observed in Vartelas v. Holder,
                                                                      why Congress built a heavy   Instead, the Court has blessed a   566 U.S. 257 (2012), “[2]rdinari-
                                                                      evidentiary burden into re-  regime in which the government   ly to determine whether there is
                                                                      moval of lawful residents.   can downgrade an LPR now and   clear and convincing evidence
              2              6th Floor                                The majority’s silence on   meet its heavy burden later. It is   that an alien has committed a

                    Woodby is telling: by ignor-  hard to overstate how much this   qualifying crime, the immigra-

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