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What Green Card Holders With Criminal Charges Need to Know Before Traveling
Lawful permanent residents are generally entitled to return to the United States after a temporary trip abroad without having to apply for admission again. However, that protection has important exceptions.
A recent U.S. Supreme Court decision, Blanche v. Lau, highlights a serious travel risk for green card holders who have pending criminal charges, prior convictions, or other criminal-history issues.
This decision does not mean that every arrest or charge makes a green card holder inadmissible. It does mean that international travel can create a much more difficult immigration problem for a permanent resident with an unresolved criminal matter.
What Happened in Blanche v. Lau?
Muk Choi Lau became a lawful permanent resident in 2007. In 2012, New Jersey charged him with trademark counterfeiting. While that criminal case was pending, he traveled to China.
When Lau attempted to return through John F. Kennedy International Airport, CBP did not treat him as a returning resident who was already admitted to the United States. Instead, CBP treated him as an applicant for admission and paroled him into the country while the criminal case continued.
Parole allowed Lau to enter the United States physically, but it did not constitute a formal admission.
Lau later pleaded guilty to the trademark-counterfeiting charge. The government then placed him in removal proceedings and charged that he was inadmissible because of a crime involving moral turpitude, often called a CIMT.
The Second Circuit ruled that CBP needed clear and convincing evidence, at the time of Lau’s reentry, that he had committed the offense before treating him as an applicant for admission. The Supreme Court rejected that requirement.
The Supreme Court’s Holding
Under INA § 101(a)(13)(C), a lawful permanent resident returning from a temporary trip abroad is generally treated as already admitted to the United States.
However, there are exceptions. One exception applies where the government determines that the green card holder “has committed” an offense identified in INA § 212(a)(2), including certain crimes involving moral turpitude.
The Supreme Court held that the Immigration and Nationality Act does not require CBP officers to have clear and convincing evidence at the port of entry before applying that exception.
The Court’s reasoning was based on a two-step analysis:
- At the border: The government may treat a returning lawful permanent resident as seeking admission if the person committed a qualifying offense before attempting to return.
- In removal proceedings: The government must establish the charged inadmissibility ground. For a CIMT charge, this generally requires a conviction or legally sufficient admission.
Why This Matters for Green Card Holders
The distinction between a returning resident and an applicant for admission can significantly change an immigration case.
A green card holder treated as already admitted is generally charged under the deportability provisions of immigration law. A green card holder treated as an applicant for admission may instead face inadmissibility grounds.
That difference can affect:
- The government’s legal theory;
- The burden of proof in immigration court;
- Available defenses and waiver options;
- Detention and parole issues; and
- The overall strategy in removal proceedings.
A pending criminal charge does not automatically make a green card holder inadmissible or removable. The exact criminal statute, court record, plea terms, sentence, and immigration history remain critical.
However, Blanche v. Lau confirms that CBP does not need clear and convincing evidence at the port of entry before declining to treat a returning permanent resident as already admitted under the criminal-offense exception.
Can CBP Stop a Green Card Holder From Returning?
A green card holder with a criminal issue may be referred to secondary inspection when returning to the United States.
Depending on the circumstances, CBP may:
- Treat the person as an applicant for admission;
- Parole the person into the United States rather than formally admit the person;
- Detain the person;
- Refer the matter to ICE; or
- Place the person in removal proceedings.
Parole allows physical entry into the United States, but it is not the same as formal admission. That distinction can become central in later immigration court proceedings.
Attorney Perspective: The Risk Begins Before Immigration Court
The most serious problem may begin at the airport, not in immigration court.
A green card holder who leaves the United States while a criminal case is pending may return in a different legal posture. Instead of being treated as a returning resident, the person may be treated as an applicant for admission and face inadmissibility-based removal proceedings.
For that reason, travel should be evaluated before departure. Waiting until a person is referred to secondary inspection may limit available options and create unnecessary risk.
Should a Green Card Holder Travel With a Pending Criminal Case?
A lawful permanent resident should not travel casually while any criminal matter remains unresolved.
Travel should be carefully reviewed where there is:
- A pending arrest, charge, indictment, or criminal complaint;
- A recent plea agreement or sentencing hearing;
- Probation, deferred adjudication, or a diversion program;
- A conviction involving theft, fraud, drugs, violence, forgery, counterfeiting, or domestic violence;
- An old case that was expunged, reduced, dismissed after a plea, or vacated; or
- Prior immigration issues, including removal proceedings or extended absences from the United States.
A criminal-law outcome that appears favorable under state law may still have serious immigration consequences. Immigration law applies its own rules regarding convictions, admissions, crimes involving moral turpitude, and inadmissibility.
Frequently Asked Questions
Can a green card holder travel with a pending criminal charge?
Travel may be risky. A pending charge does not automatically make a green card holder removable, but it can lead to secondary inspection, parole rather than admission, detention, or removal proceedings. Obtain immigration advice before leaving the United States.
Does CBP need a conviction before treating a green card holder as seeking admission?
Not necessarily. In Blanche v. Lau, the Supreme Court held that CBP does not need clear and convincing evidence at the border before applying the criminal-offense exception. A conviction may occur later and remain relevant in removal proceedings.
Does every criminal charge make a green card holder inadmissible?
No. Immigration consequences depend on the exact statute, court disposition, plea agreement, sentence, and immigration history. The title of an offense alone is usually not enough.
What is a crime involving moral turpitude?
A crime involving moral turpitude, or CIMT, is an immigration-law category that may include certain offenses involving fraud, theft, deceit, or serious misconduct. Whether a particular offense qualifies depends on the statute and legal analysis.
Should I consult an immigration attorney before travel?
Yes. A green card holder with a pending charge, conviction, probation, old arrest, expungement, diversion program, or uncertain criminal disposition should obtain an immigration-specific travel assessment before departing the United States.
Conclusion
Blanche v. Lau is an important warning for lawful permanent residents with criminal concerns. A green card does not always guarantee routine reentry after international travel.
The Ahluwalia Firm assists green card holders in San Jose and throughout California with pre-travel criminal-immigration assessments, inadmissibility issues, waiver strategy, and removal defense.
This article is for general informational purposes only and does not constitute legal advice. Immigration consequences depend on the specific criminal statute, court record, immigration history, and current law.