Joshua Villanueva is JURIST’s Washington, DC Correspondent and an LL.M. candidate in National Security and U.S. Foreign Relations Law at The George Washington University Law School.
The US Supreme Court heard argument on Wednesday in Blanche v. Lau, a case asking whether DHS may parole a returning lawful permanent resident into the country and later prove in removal proceedings that he was properly treated as an applicant for admission, or whether the government needed to have the necessary proof at the border before taking that step.
Government argues burden belongs in court, not at the border
Arguing for the government, Assistant to the Solicitor General Sopan Joshi tried to narrow the dispute to a question of timing and evidentiary posture. He told the justices that when Lau arrived in the United States in June 2012, he had “already committed a crime involving moral turpitude,” which meant he was “seeking an admission and thus was, in fact, eligible for parole and correctly charged with inadmissibility.” In Joshi’s account, Lau was attempting to undo a lawful removal order simply because border officers at Newark Airport did not themselves possess “clear and convincing evidence” at that exact moment. That theory, he argued, “makes no sense,” because “[b]urdens of proof and evidentiary burdens are things that apply in adversarial proceedings before a decisionmaker, not at the airport.”
Justice Clarence Thomas asked where “clear and convincing” comes from, and Joshi conceded that it is “not directly in the statute.” When Thomas followed up by asking whether the Board has ever applied that standard at the border, Joshi answered: “No. Never,” citing the Matter of Valenzuela-Felix. The government wanted the Court to reject a heightened border-stage burden that it said was unworkable, but it also had to acknowledge that the burden in dispute was not expressly written into the Immigration and Nationality Act (INA).
Justice Sonia Sotomayor emphasized the INA’s requirement that a Legal Permanent Resident (LPR) “shall not be regarded as seeking an admission” unless one of six exceptions applies under 8 U.S.C. § 1101(a)(13)(C). She questioned whether this language has any real effect if DHS can parole individuals first and justify the decision later. At one point, she asked if green-card holders could be treated as applicants for admission “at the whim of the government.” Joshi replied that the final determination is made “afresh” by the immigration judge during removal proceedings.
Justice Amy Coney Barrett asked what occurs “in the meantime” and whether there are consequences for an LPR who is paroled rather than admitted. Joshi responded that “[p]arole maintains the alien’s status” and the LPR “remains in LPR status.” He acknowledged amici concerns about temporary documentation but maintained that “in the eyes of the law, it’s identical status.” Justice Ketanji Brown Jackson questioned whether the distinction is merely abstract. She observed that the government removes the green card and issues a different document, then asked if parole leaves the individual subject to removal on inadmissibility grounds. Joshi agreed: if someone is paroled, “yes, it keeps open the possibility of removal on inadmissibility grounds.” Jackson concluded, “Okay. So it does make a difference.”
On the issue of timing, Jackson asked why the border officer’s decision to admit a person as an LPR or parole them as someone seeking admission cannot be made immediately. Joshi responded that the determination must be made at the border, but not with clear and convincing evidence. When Jackson inquired about the applicable standard, Joshi stated, “we don’t think there is a standard,” but suggested that, if required, it could be based on the border officer’s satisfaction. Justice Elena Kagan responded with humor, asking if that was because the first two answers “won’t sound very good?”
Justice Samuel Alito highlighted the practical implications by noting the statute uses “has committed,” not “may have committed,” and does not specify “has been convicted.” He questioned whether the Third Circuit’s probable-cause standard was appropriate to govern the border officer’s threshold determination that a returning lawful permanent resident had committed a qualifying offense and therefore could be treated as seeking admission rather than automatically readmitted as an LPR. Joshi disagreed, stating it was not reasonable to “just pull probable cause out of the air,” but acknowledged it would be preferable to the Second Circuit’s decision holding that DHS lacked the necessary clear-and-convincing proof at the time of Lau’s reentry when all the officer had was the pending criminal charge. Alito then posed a hypothetical: what if an immigration officer says, “You look very shifty?” Joshi responded that this would be improper and constitute bad faith, and sought to reassure the Court by referencing institutional safeguards such as supervisory approval for parole and follow-up inspections.
The questioning quickly centered on the government’s main argument: parole. Justice Kagan asked whether the government’s theory relies on the ability to parole an individual and “press[] the pause button.” Joshi agreed, explaining that parole allows DHS to say: “I’m not sure if you actually are inadmissible . . . and so I’m going to parole to hit the pause button.” Kagan then asked, “what entitles you to press that pause button?” Joshi replied that this determination is made at the border, though with less certainty than the clear and convincing evidence standard. He emphasized that immigration law has long required a person seeking entry to establish admissibility “to the satisfaction of the officer.”
Justice Neil Gorsuch proposed a narrower approach, questioning whether the Court needed to address the parole standard or could instead consider whether the government met its burden in removal proceedings. Joshi agreed. Gorsuch also asked if a separate challenge to the parole decision was possible under the INA or APA, but Joshi reiterated that parole decisions are not independently reviewable. Justice Jackson concluded by expressing concern that a government opposed to immigration could use parole and the loss of a green card to pressure LPRs to “self-deport.” Joshi responded that the Court should not interpret the INA based on the assumption “that the entire executive branch is operating in bad faith.”
Respondent argues DHS cannot parole first and justify the decision later
Shay Dvoretzky, representing Lau, stated, “The Court should either affirm or DIG,” referring to dismissal as improvidently granted. Dvoretzky argued that the government initially sought review on the basis of when it must meet a clear-and-convincing burden, but later shifted to questioning the appropriate standard of proof at the border. He cited the government’s earlier statement that “the government is not challenging the clear-and-convincing evidence standard” and noted that concepts such as “satisfaction” or “probable cause” were not fully briefed.
Justice Thomas asked which standard Dvoretzky believed should apply at the border and what actions an officer should take in such cases. Dvoretzky said he believed the proper standard was clear and convincing evidence. He explained that, in practice, the officer should look for “a conviction or whether the returning LPR will admit to the elements of the offense.” Justice Barrett challenged this, noting the statute uses “committed,” not “convicted,” and questioned how this approach would address criminal conduct abroad. Dvoretzky clarified that clear and convincing evidence does not require a “mini-trial at the border,” but rather a sufficient level of confidence based on available information. Justice Kavanaugh then asked if conviction or admission were the only options. Dvoretzky acknowledged there could be rare cases with other compelling evidence, but maintained that conviction or admission would be most common.
Justice Alito asked whether, under Lau’s view, an officer facing a pending criminal charge and a denial from the LPR must simply admit the individual. Dvoretzky explained that the statute requires admission unless an exception applies, and the government cannot “parole somebody in order to determine whether they are eligible for parole.” He clarified, “The government can’t exercise the very power that it says it needs more facts before it can exercise.” Justice Gorsuch then questioned whether Lau had, in practice, been admitted or paroled. Dvoretzky replied that Lau presented himself at the border and was allowed entry, but noted that “parole is a legal status” and the government was now applying that term to the situation. Gorsuch also inquired about any independent means to challenge the parole decision before removal proceedings concluded. Dvoretzky stated he was “not aware of one,” but suggested later review could occur through the final removal order.
Respondent’s argument provided the Court with a clearer understanding of parole’s consequences. Justice Barrett inquired about the practical harms raised by amici, and Dvoretzky stressed that Lau’s green card “was taken away” and “was replaced with a temporary stamp.” He explained that this leads to significant issues: employers hesitate, proof of status weakens, and daily life becomes less stable. Justice Kavanaugh cited the government’s claim that about “25 percent” of paroled LPRs fail to appear for deferred inspection. Dvoretzky responded by highlighting other enforcement tools, particularly deportation authority, but maintained that the INA does not authorize border detention solely to determine if an exception applies. Justice Sotomayor questioned whether a ruling for Lau would limit the government’s options to detention and a removability charge. Dvoretzky replied that he did not believe DHS had that authority in Lau’s case, since admission removes inadmissibility as an issue, and the government would likely wait for a conviction before pursuing deportation.
Justice Jackson revisited her concern about abuse of discretion, suggesting that under the government’s theory, border officers could remove green cards and parole LPRs based on “some suspicion.” Dvoretzky agreed there is a “very real risk” that, if the Court affirms this power, it could be broadly used, even without an “overarching policy.” Justice Alito disagreed, describing this reasoning as close to a “conspiracy theory,” and noting that Lau’s case involved a criminal charge filed by New Jersey. Dvoretzky responded that a charge does not establish that the person “has actually committed the offense.”
Chief Justice Roberts expanded on Alito’s hypothetical by presenting a more dramatic scenario: What if French police call mid-flight to report that the returning LPR “just shot somebody” before boarding? Roberts said it seemed “pretty bizarre” to conclude that the returning LPR “couldn’t even be detained” in such a scenario. Dvoretzky conceded that detention “perhaps” could be justified, but maintained that the government had “disclaimed” these questions and they had not been “fleshed out.”
Dvoretzky’s attempt to separate the “timing” and “burden” questions did not fully address the Court’s concerns. Justice Barrett expressed confusion about this distinction, noting that if the government had already conceded that clear and convincing evidence is the applicable standard, a ruling for Lau would require that level of proof at the border. Justice Jackson clarified that the government’s initial position was to parole the returning LPR first and determine later whether parole was justified. By oral argument, the government appeared to concede that some determination must occur at the border, but argued that the officer could use a lower standard than clear and convincing evidence. Dvoretzky agreed with this summary and argued that the government was asking the Court to decide a different question than the one granted for review. Justice Alito was less convinced by this procedural argument, interpreting the question more broadly and stating that the Court had always considered whether the government needed clear and convincing evidence “at the time of the LPR’s last reentry.”
Government rejects Respondent’s “parade of horribles” that would make key INA provisions unworkable
On rebuttal, Joshi insisted that the question presented clearly challenged the requirement that there be clear and convincing evidence at the border. The government’s position, he said, was simply that the border officer need not have clear and convincing evidence in hand at that time, so long as the government later proves in removal proceedings that the LPR in fact fit one of the statutory exceptions.
Respondent’s apparent rule, Joshi argued, would in practice require a conviction or admission and would thereby make Congress’s use of “committed an offense” nearly impossible to enforce at the border. He expanded the point beyond Lau’s case, contending that other INA provisions, including those addressing criminal activity abroad and lengthy absences from the United States, would become difficult or impossible to administer if border officers had to meet a clear-and-convincing threshold immediately upon reentry. He ended by forcefully rejecting the respondent’s abuse narrative, saying the “parade of horribles” would require not the ordinary functioning of DHS, but either “a DHS-wide conspiracy” or the assumption that the agency is made up of “monsters or idiots.”
