Are Lawful Permanent Residents Going to Start Being Arrested at the Border? Counterfeit Shorts and What’s going on in Blanche v. Muk Choi Lau

Sheridan Green

6/26/2026

On June 23, the U.S. Supreme Court decided Blanche v. Muk Choi Lau. This has caused a great deal of concern and many questions have flooded our office.

How these laws work

Here is what’s going on. Since the last major changes to U.S. immigration law in 1996, we now have “deportability” grounds and we have “inadmissibility” grounds. And which section applies to you can make a big difference. The idea of deportability grounds is that you have already been admitted into the United States so you have to have done worse stuff in order to get kicked out.

Likewise, the idea of “inadmissibility” grounds is that you’re seeking entry into the United States, and you can have done less bad stuff and still be denied entry.

It used to be that simple, but then Congress decided that it provided a bad incentive to evade border inspection because if you were already here, you were subjected to the nicer list of “do nots.” (Not donuts). Whereas if you sought entry at the border like you were supposed to, then you got subjected to the nastier list.

What Congress changed was that the idea of “admissibility” could apply to you even if you were within the United States. So if you never sought entry, you would continue to be subjected to the nastier list. You could do less bad stuff and still get kicked out, even if you’d successfully avoided any confrontation with immigration for 20 years.

When green card holders are "seeking admission"

Congress also made a rule, which is at INA 101(a)(13)(C) about how greencard holders will get treated at the border. Are they subject to those admissibility grounds? Will you get denied entry, for, say, having tuberculosis or being poor? No. But then the statute provides a bunch of exceptions which will result in the LPR being considered to be “seeking admission.” So if those exceptions apply, suddenly you’re seeking admission and subject to the whole litany of the INA 212 admissibility grounds.

One of those exceptions is having “committed” one of the many crimes described in Section 212(a)(2). So if the border official decides you’ve committed a Crime Involving Moral Turpitude, and then paroles you into the country rather than admitting you, then in immigration proceedings, you’ll be subjected to 212(a) instead of 237(a). In other words, it’s as if you were at the border seeking entry, even if you’re not, and those meaner rules get applied to you.

The argument in this case is about how that process is supposed to work. The majority opinion (written by Clarence Thomas) decides there is no “clear and convincing evidence” burden on the border official but then does not decide what lesser burden (if any!) might apply.

The problem is criminal charges that have not yet resulted in convictions

The problem here is that at the time of his border confrontation, Mr. Lau had not yet been convicted, only charged, with a “crime involving moral turpitude,” trademark counterfeiting. He was convicted later. (Incidentally, I highly doubt any member of the Court really thinks that selling counterfeit shorts is a crime involving moral turpitude, but for some reason that issue was not on review).

The dissent doesn’t like this at all. They think this decision is handing a blank check to border officials to “deem” LPRs to be applicants for admission based on mere criminal charges or flimsy evidence, then parole the applicants into the country, which would then allow ICE to charge them with the inadmissibility grounds in immigration court. The ultimate outcome shouldn't change because if you end up being exonerated then you're probably also not inadmissible. The downside is the expensive and stressful proceedings, the limbo status, and, possibly (given the way things are going) the prolonged detention.

Reading the dissent, and the original Second Circuit decision, it seems that the issue is that the Department of Homeland Security always believed it had a clear and convincing evidence burden but that it could meet that burden in the future. I.e., it could deem Lau an applicant for admission based on the criminal charge and then be justified later if he was convicted. If in the future he is not convicted then DHS, back in the past, did not meet its burden. This is, admittedly, a really weird way to do a burden of proof.

What it boils down to is that the Second Circuit and the dissent want a hard conviction already in place at the time of entry or the applicant gets admitted; and then, if the conviction happens later, he’s only subject to 237. And that seems reasonable. INA 101(a)(13)(C) still serves a purpose because it still applies in full force to anyone with an actual conviction.

The majority would make a counterargument that the INA 101(a)(13)(C) uses the word “committed,” not “was convicted of” a crime, and this distinction often makes a huge difference in immigration law. But as a practical matter, how is a border official supposed to know when a crime has or has not been “committed” without the benefit of a verdict? And is that something we want him deciding? We've already mostly decided we don't want immigration judges doing that, and they're supposed to have actual law degrees.

What does this change?

The upshot though, is that it doesn’t seem like this changes anything except for people who are travelling in the Second Circuit (New York) with criminal charges pending. The Ninth Circuit and the Fifth had already issued decisions which align with the Supreme Court here. And anyone actually convicted who is re-entering the U.S. is not subject to any worse outcome then they already would have been prior to this decision.

It is also important to note that, while the majority disagrees that border officials have a “clear and convincing evidence” burden, the decision never says they don’t have some lower burden.

So the bottom line is: if you’ve got charges pending, stay home, or if the charge is not a CIMT, get a lawyer to write you a memo to that effect and have it with you. (I'd be quite happy to write the memo that counterfeiting shorts is not a CIMT---CIMT creep is a jurisprudential disease).

Additional Questions

I’ve also been asked whether people with convictions prior to becoming permanent residents have anything to worry about. And the answer is no. One is rarely impacted in any way by convictions that preceded becoming an LPR, as long as they were disclosed.

Questions? Email me: sheridan@greenvisalaw.com