When a Green Card Isn't Enough at the Border: What Blanche v. Lau Means for Lawful Permanent Residents With Criminal Issues

Summary of Blanche v. Lau

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.

Legal Permanent Residents and Temporary Travel: The Legal Framework

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.

What the Court Decided in Blanche v. Lau

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:

• Step one (border classification): The INA does not impose a clear-and-convincing-evidence burden on CBP officers at the border before treating a returning LPR as seeking admission under INA §101(a)(13)(C)(v).
• Step two (removal proceedings): To establish inadmissibility under INA §212(a)(2), the Government must prove the relevant statutory ground in removal proceedings, such as a qualifying conviction or admission where required by the statute.

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:

1. It assumed without deciding that trademark counterfeiting qualifies as a crime involving moral turpitude and remanded that issue to the Second Circuit.
2. It did not decide whether the Government bears any burden at the border or what standard would apply.

What This Means in Practice: Next Steps

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.

Considerations for LPRs

• Before international travel: Assess whether any pending charge, prior conviction, or other potentially relevant conduct could implicate INA §212(a)(2), including the CIMT ground, before departing. Keep in mind that evidence supporting inadmissibility may be developed after re-entry. Consider whether travel is necessary while a charge remains pending. When travel proceeds, carry complete documentation, including police reports, certified court dispositions, probation records, and, where appropriate, a legal memorandum from counsel explaining the nature of the offense, sentencing, and potential immigration consequences.
• What to expect at re-entry: Be prepared for possible questioning under oath by CBP officers in secondary inspection. If treated as “seeking admission,” the LPR may face several possible outcomes, including parole into the United States, detention, or initiation of removal proceedings. The individual may also receive a temporary I-94 entry record rather than immediate recognition based on the physical green card, which can affect employment verification, housing, and other practical matters.
• Protecting immigration status: Consult immigration counsel before entering any criminal plea and before international travel. Preserve evidence supporting the position that the individual should be treated as already admitted upon return.

Considerations for Employers

• Proactive screening: Green card holder employees who travel internationally and have potentially relevant criminal-history issues should consult immigration counsel before travel. Prior successful travel does not necessarily indicate that future travel will present the same level of risk after this decision.
• Engage immigration counsel early: If a green card holder employee faces a criminal allegation, involve immigration counsel alongside criminal defense counsel from the outset. Immigration consequences and re-entry risks should be assessed in parallel with the criminal case. Criminal defense counsel has a constitutional duty to advise non-citizen clients about the risk of deportation arising from a guilty plea or conviction when the immigration consequences is clear (Padilla v. Kentucky, 559 U.S. 356 (2010)). Failure to provide constitutionally adequate advice may support an ineffective-assistance claim.
• Form I-9 protocols: LPRs who present a Form I-551 Permanent Resident Card for Form I-9 purposes generally should not be reverified when the card expires. However, if a returning LPR employee presents temporary Form I-551 evidence—such as the arrival portion of Form I-94 containing an unexpired temporary I-551/ADIT stamp and photograph, or a foreign passport with a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa—employers must track the applicable expiration date and complete reverification when required. At reverification, the employee must present acceptable documentation showing continued employment authorization, consistent with Form I-9 rules.

We Will Continue to Monitor

We will continue to monitor developments following Blanche v. Lau and will provide further guidance as additional information becomes available. If you have questions about specific travel risks, please contact immigration counsel to discuss your situation.