How the Supreme Court’s Decision in Blanche v. Lau will Impact your Permanent Resident
(“Green Card”) Clients with Open Criminal Charges….Tell them: Don’t Travel!
Noncitizens with certain criminal convictions, who travel outside the U.S., are often shocked to learn, when they return to the U.S., that their convictions render them inadmissible and subject to mandatory detention during their deportation-removal proceedings. While ICE may choose to release them under parole, almost invariably, they are held in detention while their removal proceedings are pending in Immigration Court - including during any appeals, or until a Judge orders their release pursuant to a writ of habeas corpus.
In Blanche v. Lau, decided June 23rd, 2026, the U.S. Supreme Court ruled DHS may detain and hold lawful permanent residents, and other noncitizens who have traveled abroad on advance parole, upon their return to the U.S., based simply upon an open and pending criminal charge! While in most instances, a conviction for certain specified crimes is required before a noncitizen can be ordered deported, the Supreme Court’s decision in Lau holds that if the open charge the noncitizen faces could subject them to removal upon conviction, and despite their otherwise being eligible for readmission to the U.S., ICE may detain them at least until their criminal case is resolved, and thereafter if their conviction renders them inadmissible.
Until this decision DHS only detained those with qualifying criminal convictions, or those who, during questioning at a port of entry, admitted the elements of certain criminal offenses, including crimes involving moral turpitude, and controlled substance offenses.
The Lau decision authorizes ICE to detain noncitizens: lawful permanent residents; those with Temporary Protected Status (“TPS”) or Deferred Action for Childhood Arrivals (“DACA”); or those with a pending adjustment of status application, who were authorized to travel outside the U.S., upon their return, based solely upon their pending criminal charges! We can expect DHS to detain these individuals at airports, and ports of entry, and thereafter, to hold them, at least until their criminal charges are resolved. This is an intentionally coercive policy. It ignores the presumption of innocence, and since most will be held in local jails, under contract with ICE, their continued detention pressures them to “sign out”. Many will despair at being held in custody until their criminal charges are resolved, and will simply request to be deported.
Urge your clients who are not U.S. citizens, and who have prior criminal arrests, convictions, or open criminal charges, not to travel outside the U.S. without first reviewing their criminal – immigration history with an attorney experienced in the interplay between criminal and immigration law. At the least, warn them, if they do travel, not to answer any questions relating to their arrest and conviction history with any ICE or CBP agent, if stopped and questioned at a port of entry, unless their attorney is present. Warn them their admission to certain criminal conduct – including that relating to resolved cases – may subject them to deportation-removal.
It is recommended, as part of your Padilla assessment, that you not only advise your noncitizen client whether their conviction may render them deportable from the U.S., but also that you advise them in writing whether their pending criminal charges may subject them to detention upon their return to the U.S. following a trip abroad. You may also wish to warn them that travel outside the U.S., is against your legal advice and will likely result in their being detained and subjected to mandatory detention by ICE pending the outcome of their criminal charges, and that such detention may substantially delay, or prevent, the resolution of their criminal charges.
If your client travels despite your warning; is detained upon their return to the U.S.; and requests to be deported prior to the resolution of their criminal charges, a warrant for their arrest will likely be issued. An open warrant will, almost certainly, frustrate future attempts by your client to obtain a visa to return to the U.S., whether to work, as a tourist, or as a permanent resident.
It is recommended you have a discussion of the risks associated with traveling abroad with open criminal charges, with your noncitizen client, at the very outset of your representation! It will be too late if they call you from ICE detention after leaving the U.S. unexpectedly due to a sudden death or serious illness in their family, or because of a vacation outside the U.S.
By, George A. Terezakis, Esq.