Page 38 - The Indian EYE 070326

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-

www.TheIndianEYE.com