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    IMMIGRATION                                                               JULY 03, 2026    |  The Indian Eye 39

            tion officer at the border would check the   viction eventually materializes effectively   Wait for a conviction or addition-  needed to defend that choice.
            alien’s record of conviction. He would not   nullifies this clear command.” Unlike the   al evidence, and only then, at a later   Justice Jackson’s dissent is more
            call into session a piepowder court to en-  merchants  of  old,  a  CBP  officer  cannot   removal hearing, attempt to satisfy the   faithful to the statutory text, to Vartelas,
            tertain a plea or conduct a trial.” Piepow-  set up a piepowder court at the airport to   clear-and-convincing standard – retroac-  and to basic principles of fairness. She
            der, or “dusty-feet courts,” as Justice   bludgeon a weary LPR traveler into admit-  tively justifying the decision that was made   understands that the timing of the govern-
            Ginsburg’s decision notes, were temporary   ting to having committed the elements of   at the border long ago.  ment’s burden is not a technicality – it is
            mercantile courts quickly set up to hear   a CIMT absent clear and convincing evi-  This is the “time travel” that Justice   the whole ballgame. If the government can
            commercial disputes at trade fairs in me-  dence.                   Jackson’s dissent forcefully criticizes. The   meet its burden years later, based on ev-
            dieval Europe while the merchants’ feet   The Supreme Court majority has   heavy burden that is supposed to protect   idence that did not even exist at the time
            were still dusty.                 now rejected that common-sense, text-  LPRs at the very moment their status is   of entry, then the statutory protection for
                Justice Ginsburg’s observation was   based reading. It has effectively authorized   being downgraded is no longer doing that   returning LPRs is illusory. The dissent
            not a historical curiosity; it was a pointed   the very “dusty-feet” border justice that   work. Instead, the burden has been moved   rightly insists that Congress meant what it
            warning. Our immigration system at the   Vartelas rejected, and then gone a step   into the future, where it becomes a mere   said: LPRs “shall not be regarded as seek-
            border is not supposed to devolve into ad   further: it has allowed the government to   after-the-fact rationalization.  ing an admission” unless and until the gov-
            hoc  mini-trials  run  by  front-line  officers,   time-shift its burden. Under Blanche v.   In other words, the majority has con-  ernment can actually demonstrate that an
            improvising accusations and extracting ad-  Lau, the government may:  verted Congress’s protective presumption   exception applies.
            missions from tired travelers. Her admoni-  Treat a returning LPR as seeking ad-  into a hollow shell. Justice Ginsburg’s   By allowing the government to meet
            tion should have restricted a CBP officer’s   mission based on an indictment or suspi-  warning against turning returning LPRs   its heavy burden only after paroling the
            ability to simply suspect that an LPR has   cion, without clear and convincing proof   into suspects standing before “pied-pow-  LPR, waiting for the conviction, and then
            committed a crime, as opposed to relying   that the person has “committed” a qualify-  der courts” and “dusty-feet courts” has   using that conviction to retroactively justi-
            on a conviction or a properly obtained   ing offense at the moment of entry.  gone unheeded. Blanche v. Lau makes it   fy treating the LPR as seeking admission,
            admission to the essential elements of the   Parole the  LPR  into  the  United   easier for the government to suspect first,   the Supreme Court has indeed authorized
            crime. The CBP officer should also not be   States, confiscate the green card, and con-  punish immediately by stripping the LPR   a form of time travel – and with it, a pro-
            able to extract a confession.     sign the person to years of “immigration   of their status protections and green card,   found degradation of the rights of lawful
                The U.S. Court of Appeals for the   limbo” with only a temporary document.  and only later build the evidentiary record   permanent residents at our borders.
            Second Circuit’s holding was much more   ________________________________________________________________________________________________________________________________________________________________________________________________
            in line with Justice Ginsburg’s reasoning.   Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta
            The Second Circuit held that the INA does   & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
            not permit “DHS to treat a returning LPR   mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
            as an applicant for admission based on the   Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
            suspicion that a CIMT has been commit-  of Volunteers for Legal Services and board member of New York Immigration Coalition.  Mr. Mehta is the former chair of the
            ted, leaving open whether this suspicion
            will  ever  be  confirmed  by  a  subsequent   Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
            conviction.” The Second Circuit reasoned   Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
            that the “INA is unmistakably clear that   on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
            the default presumption is that LPRs will   Work.  Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
            not  be  treated  as  seeking  admission  un-  and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
            less certain threshold determinations have   immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016.  Mr. Mehta is ranked among
            been made…Allowing DHS to defer such   the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
            a determination and take a wait-and-see   in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.
            approach contingent on whether a con-

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