Looming Supreme Court Decision May Have Significant Consequences

On April 22, 2026, the Supreme Court of the United States heard oral arguments relating to the rights afforded to green card holders when seeking readmission to the United States.  Blanche v. Lau could alter the method by which U.S. permanent residents (green card holders) are classified upon their return from international travel, with possible deleterious consequences, including detainment and hearings in removal/deportation proceedings for even long-term permanent residents.  Determinations may be made pertaining to whether such residents are entitled to retain their permanent resident status or put into detention and perhaps removed from the United States.

Background

In the past, if U.S. Customs and Border Protection officials at U.S. ports of entry were aware that green card holders might have prior outstanding criminal charges, they would generally classify a returning permanent resident as coming back to their home in the United States. They might initiate deportation proceedings at a later date. Now, USCBP might soon instead classify a returning resident to fall within one of the six exceptions that allow the government to treat the returning resident as ‘seeking admission’ to the United States for the first time and subject to the following considerations which might result in their immediate detention and the commencement of removal (deportation) proceedings. In the case that the USCBP officers determine that the resident is paroled to the United States, instead of being viewed as a returning permanent resident, their rights would be diminished and they would be subject to immediate detention and possible removal from the United States.

The U.S. Immigration and Nationality Act (INA) includes the following six exceptions which may apply to returning permanent residents and used to consider for their entry as ‘seeking admission’ vs ‘returning permanent resident.’ – This classification has significant consequences following admission regarding the treatment of the permanent resident in removal proceedings.  Considerations for exceptions include whether the person:  

• Has abandoned or relinquished their permanent resident status
• Has been absent from the United States for a continuous period of more than 180 days
• Has engaged in certain illegal activity after departing the United States
• Has departed the United States while under legal proceedings seeking removal or extradition,
• Has committed or specified criminal offense under the INA, or
• Has attempted to enter the United States without inspection or authorization.

Facts of Blanche v. Lau Before the Supreme Court

Upon seeking return to the United States, Mr. Lau, a permanent resident, was inspected by U.S. Customs and Immigration Services.  The U.S. Customs and Border Protection officer, noting that he had a minor criminal charge, paroled him into the United States rather than admitting him as a returning U.S. permanent resident. Thereafter, the government commenced administrative proceedings against him in ‘removal proceedings’, under the inadmissibility framework of INA 212, rather than INA 237 – which carried with it consequential results regarding his status as a U.S. permanent resident. Mr. Lau was placed in removal proceedings.  The first review of his case was through the Executive Office of Immigration Review - the Immigration Court, an arm of the U.S. Department of Justice and not an independent court outside of the federal government.

The Immigration Court and the administrative appeals body, the Board of Immigration Appeals (BIA), ruled against Mr. Lau, arguing that his admission as a parolee with severe consequences concerning his admission stood as valid. Mr. Lau took his case to the Second Circuit.  Mr. Lau maintained that as a returning resident, he could not be treated as ‘seeking admission’ to the United States without clear evidence at the time of entry that one of the six statutory exceptions applied to him.  The government held that no threshold was mandated and that the evidentiary standard could be addressed and satisfied in removal proceedings.  The Second Circuit held in favor of Mr. Lau (Lau v. Bondi 130 F 4^th 42 (2^nd Cir. 2025) and held:

• The government must have a sufficient evidentiary basis at the time it makes a classification decision and cannot rely on evidence developed after the fact to justify a permanent resident as seeking admission
• A pending criminal charge alone will not constitute clear and convincing evidence significant enough to trigger one of the exceptions mentioned above
• Returning permanent residents are not seeking admission and permitting the Department of Homeland Security to assess whether a conviction materializes to make the statutory presumption null and void.

The Supreme Court granted certiorari to address the two questions regarding the government’s classification decision and the applicable standard of proof. During oral argument, it appeared that the Court accepted the government’s argument that parole into the United States functions as a permissible interim step, and allowing time for the administration to develop a case before commencing formal removal proceedings. 

If the court rules in favor of the administration, the most significant result of this decision is that practically a lawful permanent resident may be placed in mandatory detention, pending a full hearing on the merits of their case.   The vehicle for release from detention would be a federal habeas corpus petition. Other consequences to the Supreme Court ruling in favor of the administration would include a shift in the burden of proof from the government to the permanent resident, with immediate consequences to permanent residents returning to the United States and the possibility of being placed in mandatory detention.  In addition, even minor criminal charges could trigger a border agent to determine that a returning permanent resident might be admitted to the United States in parole status; therefore, initiating removal proceedings and the mandatory detention provisions of the law.

Conclusion

The Supreme Court will issue final decisions for its 2025-2026 term at the end of June and in early July.   It would be advisable for permanent residents with any pending or final criminal charges to consult with counsel to assure that their future travel is  risk-free.

FOR MORE INFORMATION:  If you have any questions or would like to discuss, please reach out to a member of the Tarter Krinsky & Drogin Business & Corporate Immigration Practice.