Latest Supreme Court Decision: Green Card Holders May Face Greater Scrutiny When Re-entering the United States

Latest Supreme Court Decision: Green Card Holders May Face Greater Scrutiny When Re-entering the United States

On June 23, the U.S. Supreme Court issued a 6–3 decision in Blanche v. Lau, holding that border officials are not required to possess a high level of criminal evidence before treating a lawful permanent resident, commonly known as a green card holder, as “seeking admission” into the United States. The government may also rely on evidence obtained after the individual’s re-entry, including a later criminal conviction, to justify the original decision to classify the green card holder as seeking admission.

What does “already admitted” mean?

As a general rule, when a green card holder returns to the United States after traveling abroad, they are treated as someone who has already been admitted to the country.

What does “seeking admission” normally mean?

Under INA § 101(a)(13)(C), a green card holder returning to the United States is generally not considered to be seeking admission. However, the government may treat a returning green card holder as seeking admission if one of the following six circumstances applies:

● The individual has abandoned or relinquished lawful permanent resident status;\

● The individual has been absent from the United States for a continuous period of more than 180 days;

● The individual engaged in illegal activity after departing the United States;

● The individual departed the United States while in removal, deportation, or extradition proceedings;

● The individual attempted to enter the United States at a time or place other than one designated for entry, or entered without inspection and authorization by an immigration officer;

● The individual committed an offense identified under INA § 212(a)(2).

What offenses are listed under INA § 212(a)(2)?

INA § 212(a)(2) includes several categories of criminal-related grounds of inadmissibility, including:

● Crimes involving moral turpitude, also known as CIMTs;

● Controlled substance-related offenses;

● Multiple criminal convictions;

● Controlled substance trafficking-related grounds;

● Prostitution and commercialized unlawful sexual activity;

● Certain serious crimes where the individual has asserted immunity from criminal jurisdiction;

● Foreign government officials involved in particularly severe violations of religious freedom;

● Significant human trafficking-related grounds;

● Money laundering-related offenses.

What has changed under this decision?

This decision does not eliminate or overturn the existing statutory framework. Instead, it clarifies that border officials do not need to meet a heightened evidentiary standard before classifying a returning green card holder as seeking admission based on suspected criminal grounds.

In practical terms, this may make it easier for immigration authorities at the border to treat certain returning lawful permanent residents as applicants for admission.

What are the consequences of being treated as “seeking admission”?

If a green card holder is treated as seeking admission, the legal posture of the case changes significantly. The individual may be required to prove that they are eligible to enter the United States.

By contrast, if the returning green card holder is treated as already admitted, the government generally bears the burden of proving that the individual is removable from the United States.

The key issue is the shift in the burden of proof. Once the burden shifts to the green card holder, the process may become more complicated, more time-consuming, and more difficult for the individual to navigate.

A simplified example is as follows: in the past, if someone accused you of theft, the accuser would generally need to present evidence proving that you stole something. Under the reasoning reflected in this decision, a reasonable suspicion may be enough to trigger a process in which you must then prove that you did not commit the alleged conduct.

Who may be affected by this decision?

Most green card holders will not be affected by this ruling. If a lawful permanent resident has no criminal history and no pending criminal charges, their rights when returning to the United States after international travel generally remain unchanged.

This decision is most relevant to green card holders who:

● Have pending criminal charges or are currently under criminal investigation;

● Have prior arrest records or criminal convictions, even if the offense was minor, occurred long ago, or has already been resolved;

● Are currently facing allegations of criminal conduct.

What should green card holders do?

At this time, lawful permanent residents with criminal charges, convictions, or even arrest records should exercise caution before international travel, as re-entry may carry increased risk.

However, this does not mean that affected green card holders will automatically lose their status or be removed from the United States. If the government seeks removal, the case must still proceed under the applicable immigration laws and procedures. Nevertheless, the process can be lengthy and burdensome, so individuals with any criminal history or pending criminal matter should take this issue seriously and consult qualified immigration counsel before traveling abroad.