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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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