A lawful permanent resident (LPR) returning from abroad ordinarily comes home without having to establish eligibility for admission all over again. But the Immigration and Nationality Act contains exceptions. If an exception applies, an LPR is treated as an “arriving alien.” Blanche v. Lau, decided June by the Supreme Court on 23, 2026, interprets how those exceptions apply.
The Court’s decision makes it easier for U.S. Customs and Border Protection to treat an LPR as an arriving alien. The consequences are that more LPRs will be detained, placed in removal proceedings, stripped of their rights while removal proceedings are pending, and ultimately removed from the country.
The Statute
Section 101(a)(13)(C) of the Immigration and Nationality Act (INA) provides that an LPR presenting themselves for inspection at a port of entry “shall not” be regarded as an arriving alien unless he or she
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a continuous period in excess of 180 days,
(iii) has engaged in illegal activity after having departed the United States,
(iv) has departed from the United States while under legal process seeking removal of the alien from the United States …, [or]
(v) has committed [a criminal] offense [that makes him inadmissible]….
Facts of the Case
Muk Choi Lau, a Chinese citizen, was granted LPR status in 2007. In May 2012, he was he was charged with trademark counterfeiting in New Jersey. While awaiting trial, he left the United States for a brief visit to China. On June 15, 2012, he presented himself to a CBP officer to apply to reenter the United States. The CBP officer noticed the pending criminal charge. On that basis, the CBP officer determined that he was an “arriving alien” because he had “committed” a criminal offense making him inadmissible.
The officer issued him the two Forms I-94, Departure Records, shown below. The one on the left indicates that he is an LPR. It was issued as evidence of his LPR status because the officer took his green card (Form I-551). The one on the right indicates that the officer allowed him to physically enter the country as a “parolee” while deferring completion of inspection until a later time when he could present the judgment in the criminal case. See INA § 212(d)(5)(A).
Here’s a blank version the stamp in the upper right-hand corner of the Form I-94 with the “I-551” annotation:
An LPR in removal proceedings has a right to such temporary evidence of their LPR status. 8 C.F.R. § 264.5(g).
In 2013, Lau pleaded guilty to the counterfeiting charge. The following year, the government began removal proceedings by issuing a Notice to Appear charging that Lau had committed a crime involving moral turpitude. The Immigration Judge found that Lau was an arriving alien because he had “committed” the crime prior to seeking entry to the United States. The judge then found the Lau was inadmissible on the basis of having been convicted of a crime involving moral turpitude.
The Court’s Holding
The Board of Immigration Appeals affirmed the Immigration Judge’s ruling, relying on its precedent decision in Matter of Valenzuela-Felix, 26 I. & N. Dec. 53 (BIA 2012). But the U.S. Court of Appeals for the Second Circuit, on review, determined that the Notice to Appear had been issued prematurely because the CBP officer had no basis to determine that Lau had “committed” a crime other than the pending criminal charge, which was not definitive. The Second Circuit held that “clear and convincing” evidence is required for CBP to determine that an LPR is an “arriving alien.” Because the Second Circuit’s decision conflicted with those of the Fifth and Ninth Circuits, the
Supreme Court agreed to hear the case.
Then, the Supreme Court, in a 6-3 decision, disagreed, holding that the INA does not require a CBP officer to possess “clear and convincing” evidence of the facts leading to classification of an LPR as an “arriving alien.” The criminal charge was enough for the officer to determine that Lau had committed the crime. The Court did not decide what burden of proof, if any, CBP must meet.
Real-Life Consequences for LPRs
Charged as Inadmissible, Not Deportable
As the Immigrant Legal Resource Center explains:
A person in removal proceedings can either be charged as deportable or inadmissible. How that person is charged depends on whether they have already been admitted into the United States or have not been admitted to the United States. If a noncitizen has already been admitted to the United States, they will be subject to grounds of deportability under INA § 237.
If the person is present in the United States without ever having been admitted, they will be subject to the grounds of inadmissibility under INA § 212.
There is a significant advantage to being charged with deportability rather than inadmissibility in that DHS bears the burden of proving a person’s deportability in removal proceedings by clear and convincing evidence, whereas the noncitizen bears the burden of proving their own admissibility. [INA §§ 240(c)(2), (3); 8 CFR § 1240.8(a).]
Take, for example, a person convicted of a crime involving moral turpitude (CIMT). The grounds of inadmissibility are stricter than the grounds of deportability. A person can be found inadmissible for a single CIMT conviction, regardless of when the conviction occurred. INA § 212(a)(2)(A)(i)(I). On the other hand, a noncitizen charged with deportability can only be found deportable if the commission of the CIMT that led to a conviction was committed within five years of their date of admission into the United States, and the maximum sentence for the offense was one year or more. INA § 237(a)(2)(A)(i). And, as mentioned above, the burden of proof lies with the noncitizen if charged with inadmissibility, as opposed to lying with the government if charging deportability.
Notably, if an LPR is charged with inadmissibility, the government still bears the burden in removal proceedings of proving by clear and convincing evidence that the LPR falls within one of the exceptions listed in INA § 101(a)(13)(C). Matter of Rivens, 25 I. & N. Dec. 623, 626 (BIA 2011).
Don’t Leave the Country if Criminal Charges Are Pending
The most obvious lesson to be drawn from Blanche v. Lau is that an LPR should not travel abroad if criminal charges are pending. That’s because, upon return to the U.S., a CBP officer’s determination that the LPR is an “arriving alien” can lead to commencement of removal proceedings. Moreover:
- Detention: An LPR can be detained while the deportation proceedings are pending. INA § 235(b)(2). If CBP determines that the LPR “committed” a crime specified by the INA, detention is mandatory. INA § 236(c). (Lau apparently avoided detention only because the CBP officer decided to parole him into the country to await “deferred inspection”). Once an “arriving alien” is detained, the Immigration Judge has no authority to release them on bond. That authority is reserved for the Department of Homeland Security, and an LPR subject to mandatory detention can only be released in extremely narrow circumstances. But the Judge can review whether the LPR is actually an arriving alien, and a habeas petition or Administrative Procedures Acxt challenge in federal court may be possible. See American Immigration Council, Practice Alert: Blanche v. Lau and Advising LPRs with Criminal Legal System Encounters about Travel Abroad 7 (July 2026).
- Problems proving LPR status for purposes such as employment: Once CBP lifts an LPRs green card, the Form I-94 they are given as substitute evidence of LPR status. Justice Jackson, in dissent, explains that the Form I-94 “makes it harder to work, open bank accounts, secure housing, obtain health insurance, and enroll in school.”
If Possible, LPRs Should Keep Stays Abroad Short
As mentioned abroad, an LPR may be regarded by CBP as an “arriving alien” if he or she has been abroad for a period exceeding 180 days or has abandoned LPR status by staying abroad for a period that is not temporary. INA § 101(a)(13)(C). The Supreme Court’s holding in Lau is that CBP need not have “clear and convincing” evidence to determine that the LPR is an arriving alien. Based on that CBP determination, the agency may then determine that the LPR is inadmissible under INA § 212(a)(7)(A)(I) as an immigrant without an immigrant visa, and issue a Notice to Appear in Immigration Court. Detention and problems proving LPR status while proceedings are pending may follow.
For more on this topic, see Protecting Permanent Resident Status During Stays Abroad.
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