Lau: A Green-Card Holder With a Pending Charge Can Be Treated as Seeking Admission on Return

A green-card holder who travels abroad while a criminal charge is pending can be treated as “seeking an admission” on return, even if the border officer has no clear and convincing evidence that the crime was committed. Removal on that basis still depends on a qualifying offense committed before the return and, to show inadmissibility, a conviction or admission. The Supreme Court so held in Blanche v. Muk Choi Lau, 609 U.S. 1 (2026), No. 25-429, decided June 23, 2026. Under Board precedent, which the Court applied without deciding whether it is correct, the government must prove that commission at the removal hearing by clear and convincing evidence.

Justice Thomas wrote for a 6–3 Court, vacating a Second Circuit decision in Lau’s favor. Justice Jackson, joined by Justices Sotomayor and Kagan, dissented.

A trip to China while a charge was pending

Muk Choi Lau, a Chinese citizen, became a permanent resident in 2007. New Jersey charged him with trademark counterfeiting on May 7, 2012. While awaiting trial he went to China, and on June 15, 2012, he presented himself at John F. Kennedy International Airport. Because of the pending charge, the officer treated him as seeking admission but did not decide whether he was admissible. The government instead paroled Lau pending the resolution of his criminal case. Parole lets a person physically enter without being admitted.

Lau pleaded guilty on June 24, 2013. In March 2014 the government began removal proceedings and charged him as an applicant for admission who was inadmissible for a conviction of a crime involving moral turpitude. The immigration judge ordered him removed. The Board of Immigration Appeals affirmed, finding clear and convincing evidence that he fell within the exception for residents who have committed such a crime.

The label mattered. Under the grounds at issue in Lau, a person seeking admission can be inadmissible for a qualifying conviction of a crime involving moral turpitude regardless of when it was committed; the single-conviction deportability ground requires the crime to have been committed within five years after admission. And the burdens differ: An applicant for admission must prove he is admissible, while the government must prove that an admitted person is deportable.

What Lau asked for

Lau sought termination, arguing that he had to be regarded as already admitted and could be charged only with deportability. The Second Circuit accepted that commission, not conviction, is the trigger, but held that the officer needed clear and convincing evidence of the crime at the border, which a pending charge alone did not supply. It ordered the inadmissibility case terminated, leaving the government free to charge deportability.

Commission at the border, conviction at the hearing

Under 8 U.S.C. § 1101(a)(13)(C)(v), a permanent resident may be regarded as seeking admission if he “has committed an offense identified in section 1182(a)(2),” which includes a crime involving moral turpitude. The Court read the statute as working in two steps, quoting Barton v. Barr, 590 U.S. 222 (2020): “[W]hile only commission [of the crime] is required at step one” to treat the person as seeking admission, “conviction (or admission) is required at step two” to make him inadmissible.

Lau fit both steps: He committed the crime before trying to reenter and was later convicted. Nothing in the statute requires clear and convincing evidence at the border.

The Second Circuit’s standard came from Board precedent, Matter of Valenzuela-Felix, 26 I&N Dec. 53 (BIA 2012), which the Court said imposes that burden, “correctly or not,” only “at the time of the removal hearing.” The government met it there: Lau’s guilty plea was clear and convincing evidence that, before he tried to reenter, he had committed the crime. The Court declined to add a further burden on border officers who must decide quickly.

The Vartelas footnote and the word “committed”

Lau relied on a footnote in Vartelas v. Holder, 566 U.S. 257 (2012), saying the phrase appears to refer to a resident who has been convicted of, or admits, a listed offense. The Court called that footnote dictum and held that the text reaches commission. Section 1101(a)(13)(C)(v) borrows only the list of crimes from section 1182(a)(2), not its conviction requirement. Reading it otherwise, the Court wrote, makes little sense: “One does not commit a conviction.” The dissent agreed with this point.

The dissent: The decision has to come first

Justice Jackson read section 1101(a)(13)(C), under which a returning resident “shall not be regarded as seeking an admission” unless an exception applies, to require the officer to find an exception before treating the resident as an applicant. The Court’s approach, she wrote, lets the government “backfill its justification” with later-gathered evidence, such as a conviction. She noted that on parole, officers took Lau’s green card and gave him an I-94 card, his only proof of status for 14 years. She would have upheld the Second Circuit: The officers had only the indictment and nothing to rebut Lau’s sworn statement that he did not know exactly what was in the boxes he stored. She called the result a “massive blank check.” The majority answered that she never identified where the statute imposes that border burden.

What was sent back and what was left open

The Court assumed, without deciding, that Lau’s conviction was of a crime involving moral turpitude, because the Second Circuit never reached that question. It vacated the judgment and remanded for further proceedings, where Lau’s argument that the offense does not qualify remains open. In our reading, if it does not qualify, the charge fails at both steps: Lau could not have been treated as seeking admission on this basis, and the conviction would not make him inadmissible.

In the same footnote that left the Board’s hearing burden undecided, the Court also left open whether any burden applies at the border and, if so, whether it falls on the returning resident, as the government suggested.

What this means for a trip with a charge or a record

These points are our reading of the opinion and the current statute.

• A pending charge. A charge can lead an officer to treat you as seeking admission and parole you in. The removal case then turns on what is proved at the hearing: that you committed a qualifying offense before returning and, for a crime involving moral turpitude, a conviction or admission. A later guilty plea can supply that proof, as Lau’s did about a year after his trip.
• An old conviction. A resident convicted of a listed offense has “committed” it, so the exception can apply on any return. Under the current statute, it does not apply if, since the offense, the person has been granted relief under section 1182(h) or section 1229b(a). For a plea entered before April 1, 1997, see our analysis of Fleuti, which can still protect an innocent, casual and brief trip.
• Who is affected most. The decision binds every immigration court. It changes the result most directly in New York, Connecticut and Vermont, where the Second Circuit’s border rule had applied.