On June 23, SCOTUS decided Blanche v. Lau , a case with important implications for LPRs who travel internationally while a criminal charge or other potentially relevant criminal matter is pending or unresolved. In a 6-3 decision, SCOTUS held that the INA does not require CBP officers to meet a “clear and convincing evidence” standard at the border before treating a returning LPR as seeking admission under INA §101(a)(13)(C)(v).
As a practical matter, a returning LPR with a pending charge or other potentially relevant criminal issue may be diverted from the default “already admitted” treatment and later placed in removal proceedings on inadmissibility grounds, if the U.S. government establishes the relevant inadmissibility basis. Evidence developed later, including a post-entry conviction, may be used in removal proceedings to support the earlier classification decision and can increase the risk of removal and loss of LPR status.
Generally, LPRs returning from temporary travel abroad are not treated as “seeking admission.” Instead, they are regarded as already admitted and ordinarily do not have to reapply for admission. That default rule is subject to six statutory exceptions listed in INA §101(a)(13)(C)(i)-(vi). The exception at issue in this case applies to LPRs who have “committed an offense identified in section 212(a)(2),” including certain inadmissibility offenses such as a crime involving moral turpitude (CIMT). Although CIMT is not expressly defined by statute, it generally refers to conduct that courts have treated as involving fraud, theft, or other morally reprehensible conduct, depending on the offense and applicable precedent.
The distinction carries significant practical consequences. An LPR treated as an “applicant for admission” may be found inadmissible based on a covered offense committed “at any time,” subject to the statutory requirements and any applicable exceptions.
By contrast, an already admitted LPR is generally deportable on CIMT grounds only if the offense occurred within five years after the date of admission and the offense is one for which a sentence of one year or longer may be imposed. The burden of proof also differs. Applicants for admission generally must establish admissibility, while the Government bears the burden in deportation proceedings.
The case involved a green card holder returning from overseas while a criminal charge was pending. A border officer relied on that pending charge to treat him as seeking admission rather than as an already admitted returning LPR. Instead of formally admitting, detaining, or removing him at the port of entry, the officer paroled him into the United States pending further proceedings. Parole allows a person to be physically present in the country without being formally admitted and can affect which immigration rules apply. SCOTUS held that border officers are not required to have clear and convincing evidence of a qualifying offense at the time of re-entry before making this classification. The Court’s analysis reflects two distinct steps:
In practical terms, the decision permits the U.S. government to treat an LPR as seeking admission at the border without first satisfying a clear-and-convincing-evidence standard, and later to support that classification in removal proceedings with evidence developed after re-entry, including a subsequent conviction.
SCOTUS left two important questions unresolved:
If a green card holder is reclassified as “seeking admission,” the individual may lose certain procedural advantages associated with already-admitted LPR status, including the U.S. government’s deportability burden in removal proceedings. Employees with no criminal history and no pending or potentially relevant criminal issues generally should not be affected by the ruling when returning from temporary international travel. The ruling is most relevant to green card holders who have had potentially relevant interactions with the criminal justice system, including matters that are unresolved, old, minor, or not yet reduced to conviction.
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