Tag Archive for: Piepowder Courts

Cyrus Mehta & Kaitlyn Box*

Blanche v. Lau: The Supreme Court Has Degraded the Rights of Lawful Permanent Residents

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By Cyrus D. Mehta and Kaitlyn Box*

On April 23, 2025, the Supreme Court heard oral argument in Blanche v. Lau, a case that confronted the issue of whether the government, in seeking to remove a lawful permanent resident (LPR) who was paroled into the United States on the basis that he committed a crime involving moral turpitude (CIMT) under INA 212(a)(2), must prove that it possessed clear and convincing evidence of the crime at the time of the LPR’s most recent reentry.

On June 23, 2026, in a 6–3 decision, the Supreme Court answered that question in the government’s favor – and in doing so, it sharply degraded the statutory and practical protections that Congress intended LPRs to enjoy when they return from trips abroad. The Court has now authorized the government to do precisely what the Second Circuit in Lau v. Bondi warned against: parole a returning LPR based on suspicion, confiscate the green card, wait for a conviction, and then “travel back in time” to satisfy its heavy burden after the fact.

The facts in Blanche v. Lau illustrate the stakes. Mr. Lau, an LPR who had traveled outside the U.S. with a pending charge of third-degree trademark counterfeiting in New Jersey before being paroled into the country in 2012, argued that there is a presumption LPRs are already admitted when they reenter the U.S. after travel abroad. The government, on the other hand, asserted that Lau falls within an exception to this presumption because he had already “committed” a crime at the time of his reentry, although he had not yet been convicted.

Under INA 101(a)(13)(C) an LPR shall not be regarded as seeking admission in the US unless, among other things, the LPR has committed an offense identified in section 212(a)(2), which includes crimes involving moral turpitude or drug offenses. Congress set a clear default: LPRs returning from abroad are not to be treated as seeking admission, unless the government can show, in one of a few narrow circumstances, that this protection does not apply.

Justice Thomas, writing for the 6–3 majority, took a narrow, text-focused view of the statute. In his reading, INA 101(a)(13)(C) does not impose any “clear and convincing evidence” requirement at the border itself. Instead, it is enough that the government ultimately proves in removal proceedings, by clear and convincing evidence, that the LPR fell within a 212(a)(2) exception and was properly treated as seeking admission.

The majority emphasizes administrative practicality and continuity with past practice. Justice Thomas stresses that border officers routinely act on incomplete information, and he rejects the Second Circuit’s insistence that DHS must already possess clear and convincing evidence at the exact moment of reentry. For the Court, the statute regulates the government’s burden in removal proceedings, not the evidentiary threshold for front-line CBP decisions.

According to the majority, nothing in the INA’s text or structure forbids DHS from initially classifying a returning LPR as an applicant for admission based on an indictment or other non-conviction information, so long as the government later carries its heavy burden in court. In the majority’s view, this approach preserves the government’s flexibility to police the border while still requiring clear and convincing proof before an LPR is actually ordered removed. One striking omission in Justice Thomas’s majority opinion is any engagement with Woodby v. INS, 385 U.S. 276 (1966), the very case in which the Court itself articulated the “clear, unequivocal, and convincing” standard in deportation proceedings. Woodby is not merely background noise; it is the foundational precedent that explains why Congress built a heavy evidentiary burden into removal of lawful residents. The majority’s silence on Woodby is telling: by ignoring that history, it becomes easier to recast the clear-and-convincing standard as a backward-looking formality in court, rather than a real constraint on how and when the government may strip an LPR of the protections of admission at the border.

In the run-up to the decision, the conservative justices seemed to largely agree with the government’s position, although Justice Jackson expressed concern about the implications of this position, stating:

“And my concern is that I could actually see a world in which [1] would be in the government’s interest. And it’s a situation in which people who are lawful permanent residents who have green cards leave the country and, when they return, based on a suspicion or even an indictment that’s in the government’s control, they flag this person as being returning under parole as opposed to lawful admission. They take this person’s green card, which then makes it much, much harder for this person to actually live and work and continue in their life here in the United States, perhaps so much so that this person self-deports because it’s really, really difficult without a green card to operate in this country. So you could imagine a world in which a government that really is not interested in immigration and having immigrants here, living and working, could use this kind of thing to inappropriately parole people rather than admit them so that it depresses immigration.”

Justice Jackson’s dissent in Blanche v. Lau bears out exactly this concern. She squarely recognizes how dangerous it is to allow officers to strip an LPR of the presumption of admission based on allegation or indictment, then let the government justify that downgrade years later once a conviction is in hand. Unfortunately, the majority brushed those concerns aside.

If the Supreme Court had sided with the Second Circuit and with Lau, it would have held that an LPR who is accused of committing a crime and paroled into the U.S. is still treated as already admitted unless the government can clearly and convincingly show, at the time of reentry, that a 212(a)(2) exception applies. Instead, the Court has blessed a regime in which the government can downgrade an LPR now and meet its heavy burden later. It is hard to overstate how much this undermines the security of LPR status at the border.

The Supreme Court’s ruling is tailor-made for abuse by any administration that is hostile to immigrants and LPRs. By taking the position that an LPR is “seeking admission” rather than arguing that the individual is deportable, the government can more easily pursue removal. In order to remove an LPR who was admitted, the government would have to show that the individual had been “convicted of a crime involving moral turpitude committed within five years” of the admission. The government must have clear and convincing evidence in order to determine that an LPR is seeking admission after having committed a crime under INA 212(a)(2), and that burden should only be met if the LPR has actually been convicted of the crime involving moral turpitude, or has admitted to the elements of the crime. Blanche v. Lau now allows the government to pretend that this burden can be fulfilled retroactively.

An LPR can voluntarily admit to the commission of a crime if he or she chooses to, but such an admission needs to meet rigid criteria. The BIA has set forth the following requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K–, 7 I&N Dec. 594 (BIA 1957).

The Board of Immigration Appeals also held in Matter of Guevara, 20 I&N Dec. 238 (1990) that an alien’s silence alone does not provide sufficient evidence under the standard in Woodby v. INS, which held that the burden was on the government to prove by “clear, unequivocal, and convincing evidence” that the LPR should be deported from the United States. This has also been more recently affirmed by the Board of Immigration Appeals in Matter of Rivens, 25 I&N Dec. 623 (BIA 2011).

As the late Justice Ginsburg observed in Vartelas v. Holder, 566 U.S. 257 (2012), “[2]rdinarily to determine whether there is clear and convincing evidence that an alien has committed a qualifying crime, the immigration officer at the border would check the alien’s record of conviction. He would not call into session a piepowder court to entertain a plea or conduct a trial.” Piepowder, or “dusty-feet courts,” as Justice Ginsburg’s decision notes, were temporary mercantile courts quickly set up to hear commercial disputes at trade fairs in medieval Europe while the merchants’ feet were still dusty.

Justice Ginsburg’s observation was not a historical curiosity; it was a pointed warning. Our immigration system at the border is not supposed to devolve into ad hoc mini-trials run by front-line officers, improvising accusations and extracting admissions from tired travelers. Her admonition should have restricted a CBP officer’s ability to simply suspect that an LPR has committed a crime, as opposed to relying on a conviction or a properly obtained admission to the essential elements of the crime. The CBP officer should also not be able to extract a confession.

The U.S. Court of Appeals for the Second Circuit’s holding was much more in line with Justice Ginsburg’s reasoning. The Second Circuit held that the INA does not permit “DHS to treat a returning LPR as an applicant for admission based on the suspicion that a CIMT has been committed, leaving open whether this suspicion will ever be confirmed by a subsequent conviction.” The Second Circuit reasoned that the “INA is unmistakably clear that the default presumption is that LPRs will not be treated as seeking admission unless certain threshold determinations have been made…Allowing DHS to defer such a determination and take a wait-and-see approach contingent on whether a conviction eventually materializes effectively nullifies this clear command.” Unlike the merchants of old, a CBP officer cannot set up a piepowder court at the airport to bludgeon a weary LPR traveler into admitting to having committed the elements of a CIMT absent clear and convincing evidence.

The Supreme Court majority has now rejected that common-sense, text-based reading. It has effectively authorized the very “dusty-feet” border justice that Vartelas rejected, and then gone a step further: it has allowed the government to time-shift its burden. Under Blanche v. Lau, the government may:

Treat a returning LPR as seeking admission based on an indictment or suspicion, without clear and convincing proof that the person has “committed” a qualifying offense at the moment of entry.

Parole the LPR into the United States, confiscate the green card, and consign the person to years of “immigration limbo” with only a temporary document.

Wait for a conviction or additional evidence, and only then, at a later removal hearing, attempt to satisfy the clear-and-convincing standard – retroactively justifying the decision that was made at the border long ago.

This is the “time travel” that Justice Jackson’s dissent forcefully criticizes. The heavy burden that is supposed to protect LPRs at the very moment their status is being downgraded is no longer doing that work. Instead, the burden has been moved into the future, where it becomes a mere after-the-fact rationalization.

In other words, the majority has converted Congress’s protective presumption into a hollow shell. Justice Ginsburg’s warning against turning returning LPRs into suspects standing before “pied-powder courts” and “dusty-feet courts” has gone unheeded. Blanche v. Lau makes it easier for the government to suspect first, punish immediately by stripping the LPR of their status protections and green card, and only later build the evidentiary record needed to defend that choice.

Justice Jackson’s dissent is more faithful to the statutory text, to Vartelas, and to basic principles of fairness. She understands that the timing of the government’s burden is not a technicality – it is the whole ballgame. If the government can meet its burden years later, based on evidence that did not even exist at the time of entry, then the statutory protection for returning LPRs is illusory. The dissent rightly insists that Congress meant what it said: LPRs “shall not be regarded as seeking an admission” unless and until the government can actually demonstrate that an exception applies.

By allowing the government to meet its heavy burden only after paroling the LPR, waiting for the conviction, and then using that conviction to retroactively justify treating the LPR as seeking admission, the Supreme Court has indeed authorized a form of time travel – and with it, a profound degradation of the rights of lawful permanent residents at our borders.

 

Cyrus Mehta

In Honor of Justice Ginsburg: Disfavoring Piepowder Courts Against Permanent Residents in Vartelas v. Holder

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Saddened by the death of Justice Ginsburg, I searched through the blogs I have written on her opinions in immigration cases. I was again reminded not only about her brilliance but how forcefully she advanced the rights of immigrants that was consistent with the Constitution and the Immigration and Nationality Act. I wrote Justice Ginsburg’s Observation on Piepowder Courts in Vartelas v. Holder in 2012 with Gary Endelman when he was in private practice and is now an Immigration Judge.  Upon re-reading  the blog  after  the  announcement  of  her  death last evening, it deeply resonated in me as this blog was inspired by the same passion as Justice Ginsburg’s forceful opinion in Vartelas v. Holder upholding the rights of permanent residents (LPR) as they existed before the 1996 Act. An LPR who was convicted of a crime prior to 1996 should not be found inadmissible if the trip outside the US was brief, casual and innocent.  Piepowder, or dusty feet courts, as Justice Ginsburg quaintly observed in a footnote, were temporary mercantile courts quickly set up to hear commercial disputes at trade fairs in Medieval Europe while the merchants’ feet were still dusty.  Since  the law  post- 1996  could  not  be  applied  retroactively,  a CBP  officer  may not  set  up  a  “dusty  feet” court  at  the  airport  to  determine  whether a returning  LPR committed  crimes in the past and then find  him or her inadmissible.  Vartelas  v. Holder  partially  restored  the  rights  of  LPRs  only  for  crimes  convicted  prior  to  the  1996  law. In 2017, the Second Circuit in Centurion v. Sessions expanded the retroactive application of the pre-1996 entry doctrine to the commission of crimes even if the conviction of that crime occurred after after 1996.   The  project  remains  unfinished.  The pre-1996 entry  doctrine  must  be  restored  completely  so  that  LPRs , who have due process rights long recognized by the Supreme Court,  are  not  placed  in  jeopardy at the airport  for inadmissible crimes  committed  even after 1996  if  their  trip  abroad  was  brief,  casual  and  innocent. A future  Justice  in  the  same  mold  as  Justice  Ginsburg  will  need  to  write  the next decision.

Justice Ginsburg’s Observation on Piepowder Courts in Vartelas v. Holder

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By Gary Endelman and Cyrus D. Mehta 

In the recent landmark Supreme Court decision of Vartelas v. Holder, No. 10-1211, 565 U.S. ___, U.S. LEXIS 2540 (March 28, 2012), which partially restores the rights of lawful permanent residents (LPR) with pre-1996 convictions, Justice Ginsburg, who wrote the opinion for the majority,   made an interesting reference to piepowder courts. For an explanation of the potential significance of Vartelas v. Holder, we refer readers to our previous blog entitled Fleuti Lives! Restoration of A Constitutional Decision.

Piepowder, or dusty feet courts, as Justice Ginsburg’s decision explains in footnote 12, were temporary mercantile courts quickly set up to hear commercial disputes at trade fairs in Medieval Europe. These courts were set up to resolve disputes while the merchants’ feet were still dusty.

Justice Ginsburg made this reference to piepowder courts in the immigration context in our modern era, stating that an immigration official at the border would not set up a piepowder court to determine whether an LPR committed an offense identified in INA § 212(a)(2) to determine whether he or she was inadmissible. This is what Justice Ginsburg said: “Ordinarily to determine whether there is clear and convincing evidence that an alien has committed a qualifying crime, the immigration officer at the border would check the alien’s record of conviction. He would not call into session a piepowder court to entertain a plea or conduct a trial.”

The Supreme Court’s observation on quaint “dusty feet” courts, although charming, is also extremely significant. Most lawyers who do not practice immigration law, and of course everyone else, will be surprised to know that a non-citizen, including an LPR, can be found inadmissible under INA § 212(a)(2) for being convicted or who admits having committed certain crimes, such as crimes involving moral turpitude or controlled substance offenses.  Thus, a non-citizen, including an LPR, need not have a criminal conviction to be found inadmissible, he or she can be equally snared for having admitted to the commission of a crime. Clearly, with respect to an LPR travelling from abroad, Justice Ginsburg’s observation appears to restrict a CBP officer’s ability at an airport from trying to obtain a confession regarding the commission of a CIMT. A CBP official cannot set up a piepowder court at the airport, like the merchants of a bygone era, to try an LPR who has travelled through many time zones, and who instead of having dusty feet may have bleary eyes, for the purposes of bludgeoning him or her into an admission for having committed a crime.

Admittedly, the observation on piepowder courts was obiter dictum. It  was made in the context of whether INA § 101(a)(13)(C), enacted by the Illegal Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which allows the government to charge a long term LPR as an arriving alien for having committed an offense under 212(a)(2), could be applied retroactively.  The Supreme Court in Vartelas v. Holder held that the  doctrine enunciated in Rosenberg v. Fleuti, 374 U.S. 449 (1963), that an LPR who made a brief, casual and innocent trip abroad should  not be charged as an arriving alien,  still applies to LPRs with pre- IIRIRA criminal conduct. Noting that there was a presumption against retroactive legislation under Landgraf v. USI film Products, 511 U.S. 244 (1994), the Supreme Court  in Vartelas concluded that  INA § 101(a)(13)(C)(v) resulted in an impermissible retroactive effect as it  created a “new disability” to conduct completed  prior to IIRIRA’s enactment in 1996. This new disability was Vartelas’ inability to travel after 1996, which he could freely do so prior to 1996. The Court criticized the Second Circuit in the same case below, which did not find INA §101(a)(13)(C)(v) retroactive since it did not reference a conviction but only the commission of a crime, which if pleaded to prior to 1996 in reliance of more favorable treatment under pre-1996 law, would have been impermissibly retroactive as in INS v. St. Cyr, 533 U.S. 289 (2001). It was at this point that Justice Ginsburg said that “[t]he practical difference (between a conviction and commission of a crime), so far as retroactivity is concerned, escapes our grasp” and then made her observation that an immigration official would in any event need to determine under the clear and convincing standard at the border by checking the record of conviction, rather than convene a piepowder court, to determine whether the alien committed the crime.

It is also significant that Justice Ginsburg in her observation on piepowder courts affirmed that the burden has always been on the government to establish that an LPR is not entitled to that status, and this burden established in Woodby v. INS, 385 U.S. 276 (1966), is that the government must prove by “clear, unequivocal and convincing” evidence that the LPR should be deported. This burden applies to all LPRs regardless of whether they have pre-1996 or post-1996 criminal convictions. Thus, under a Woodby analysis too, since the government bears a heavy burden of proof, it would be turning the tables on the LPR if the government tried to extract a confession regarding the commission of a crime and thus be able to escape from the heavy burden it bears under the “clear, unequivocal and convincing” standard. This can potentially happen with an LPR who may have had the charges dismissed or reduced, but a nasty CBP official still wants to know the real story via a hypothetical piepowder court at the airport. Indeed, the Board of Immigration Appeals held many years ago in Matter of Guevara, 20 I&N Dec.238 (1990) that an alien’s silence alone does not provide sufficient evidence under the Woodby standard, in the absence of other evidence, to establish deportability. The following extract from Matter of Guevara is worth noting:

The legal concept of a “burden of proof” requires that the party upon whom the burden rests carry such burden by presenting evidence. If the only evidence necessary to satisfy this burden were the silence of the other party, then for all practical purposes, the burden would actually fall upon the silent party from the outset. Under this standard, every deportation proceeding would begin with an adverse inference which the respondent be required to rebut. We cannot rewrite the Act to reflect such a shift in the burden of proof. [citing Woodby v. INS, supra; other citations omitted]

Of course, an LPR can still voluntarily admit to the commission of a crime if he or she chooses to, but such an admission needs to meet rigid criteria. The BIA has set forth the following requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K-, 7 I&N Dec. 594 (BIA 1957).

Justice Ginsburg’s piepowder observation in Vartelas v. Holder, together with Matter of K and Matter of Guevara, provide more arsenal to an LPR who is charged as an arriving alien based on the commission rather than the conviction of a crime under INA § 212(a)(2). Beyond this, the disinclination to sanction ad hoc investigation through a “dusty feet” court conducted without legal sanction or moral restraint reflects a commendable preference for the stability of the written record as the framework for informed decision.

The conceptual framework that governs any discussion of retroactivity is the traditional two-step formula announced in Landgraf v. USI Film Products, supra. Since Congress did not expressly instruct on how far back IIRIRA could go, we move to the second prong announced by the High Court at page 277 of Landgraf, namely whether giving retrospective effect to INA 101(a)(13)(C)(v) will contradict basic notions of proper notice and upset “settled expectations” on which the actor “reasonably relied.” When in doubt, retroactivity is disfavored. The Supreme Court got it right. “Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly.” Landgraf, 511 US at 265.

Justice Ginsburg’s admonition reflects a profound appreciation of the due process rights that returning LPR’s have traditionally enjoyed.   While Woodby may not have been a constitutional decision, the warning against piepowder courts can only be understood in a constitutional context.  Remember the returning LPR seaman in Kwong Hai Chew v Colding, 349 US 590(1953) that authorities sought to exclude without a hearing; the Supreme Court reminded us that he deserved full constitutional rights to a fair hearing with all the due process protection that would have been his had he never left. Remember what Rosenberg v Fleuti, 374 US 449, 460(1963) taught us: “A resident alien who leaves this country is to be regarded as retaining certain basic rights.” Remember the ringing injunction of Shaughnessy v. US ex rel Mezei, 345 US 206, 213(1953): “A lawful resident alien may not captiously be deprived of his constitutional rights to procedural due process.”  In essence, behind Justice Ginsburg’s distaste for piepowder courts when applied to returning resident aliens, regardless of when their conviction or admission took place, is nothing less than the right “ to stay in this land of freedom.” Landon v. Plasencia, 459 US 21, 36 (1982) quoting Bridges v. Wixon, 306 US 135, 154 (1945).

The refusal to sanction IIRIRA retroactivity in Vartelas v. Holder provides the kind of predictability that LPRs need and deserve before they leave the USA and seek to return.  This, after all, is why retroactivity is disfavored .This is precisely why a piepowder court is not allowed; an LPR should know what this status means, what his or her rights are and should be able to leave the US with the confidence that an uneventful return is not only possible but entirely to be expected. In this sense, the refusal to embrace IIRIRA retroactivity and the caution against a piepowder court spring from the same place and say the same thing- predictability is at the very essence of a lawful society.  After all, to borrow Einstein’s happy phrase, God does not play dice with the universe.

(The views expressed by guest author, Gary Endelman, are his own and not of his firm, FosterQuan, LLP)