Can a lawful permanent resident seeking cancellation of removal be deemed “inadmissible” under the stop-time rule if the alien has already been admitted into the United States?
This case asks the U.S. Supreme Court to resolve the circuit split regarding the interpretation of the stop-time rule in the context of removal proceedings and to determine what it means to be considered “inadmissible” under the rule. The stop-time rule is a limitation on the Attorney General’s power to cancel the removal of an alien and applies, in part, when the alien commits an offense listed under 8 U.S.C. § 1182(a)(2) that renders the alien “inadmissible.” Andre Martello Barton (“Barton”) argues that he cannot be deemed “inadmissible” under the stop-time rule because he was not seeking admission into the United States and, as a result, was never adjudicated as inadmissible. Alternatively, Barton asserts that it is a legal impossibility for him to be rendered “inadmissible” because he is an already-admitted lawful permanent resident of the United States. U.S. Attorney General William Barr counters that, for stop-time purposes, an alien is “inadmissible” if the alien is convicted of or admits to committing an offense listed under 8 U.S.C. § 1182(a)(2), regardless of whether the alien is seeking admission or already admitted. The outcome of this case has important implications for the removability of lawful permanent residents who have prior criminal convictions.
Questions as Framed for the Court by the Parties
Whether a lawfully admitted permanent resident who is not seeking admission to the United States can be “render[ed] ... inadmissible” for the purposes of the stop-time rule, 8 U.S.C. § 1229b(d)(1).
On May 27, 1989, Petitioner Andre Martello Barton was admitted into the United States on a tourism visa. Barton was born in Jamaica and has citizenship there. After three years in the U.S., Barton became a lawful permanent resident.
Since becoming a lawful permanent resident, Barton has been convicted of several crimes. First, in July 1996, Barton was convicted of aggravated assault, first-degree criminal damage to property, and possession of a firearm during the commission of a felony. Later, in 2008, Barton was convicted of twice violating the Georgia Controlled Substances Act.
After the 2008 conviction, the Department of Homeland Security (the “DHS”) commenced a proceeding in immigration court to remove Barton from the United States. The DHS based its proceeding on numerous grounds under 8 U.S.C. § 1227(a), including Barton’s convictions for drug-trafficking and crimes involving “moral turpitude” not arising from a single scheme. Barton conceded that he was removable on several of the grounds, but he contested the trafficking conviction and disputed that his crimes of “moral turpitude” arose under multiple schemes. The government withdrew the removability charges Barton contested, and the immigration judge sustained the removability charges he conceded.
Then, Barton filed an application to the Attorney General’s office for cancellation of removal under 8 U.S.C. § 1229b(a). Under this statute, the Attorney General may cancel the removal of a lawful permanent resident if, among other requirements, the resident has resided in the U.S. for seven continuous years after being admitted into the country. This requirement is subject to the “stop-time rule” under Section 1229b(d)(1), which stops the accrual of time for a resident alien who has committed certain crimes listed under 8 U.S.C. § 1182(a)(2) within those seven years that “render” the alien either “inadmissible to the United States” under Section 1182(a)(2) or “removable from the United States” under 8 U.S.C. § 1227(a)(2) or § 1227(a)(4). To qualify as “inadmissible,” the alien must be convicted of, or admit to committing, “a crime involving moral turpitude.” To qualify as “removable,” the alien must have committed a “crime involving moral turpitude” within five years of admission or multiple crimes of “moral turpitude” arising under different schemes within seven years of admission.
DHS argued that Barton’s 1996 crimes engaged the stop-time rule, thereby voiding his eligibility for cancellation of removal. After Barton argued that his 1996 crimes did not arise out of multiple schemes, the government abandoned its Section 1227(a)(2) “removability” argument and turned to Barton’s “inadmissibility” under Section 1182(a)(2), which is not limited by a single-scheme requirement. Barton argued that, because he was not seeking admission, it was legally impossible for him to be rendered “inadmissible.” The immigration judge agreed with the government and denied cancellation of removal. Barton appealed the immigration judge’s decision to the Board of Immigration Appeals (the “BIA”), reiterating his inadmissibility argument. The BIA affirmed the immigration judge’s decision, determining that the stop-time rule asks only whether an alien is “potentially inadmissible.”
Barton appealed the BIA’s decision to the United States Court of Appeal for the Eleventh Circuit. Barton re-emphasized his inadmissibility argument and added that the BIA’s reading of the statute would result in an alien always being found inadmissible before being adjudged as removeable, which would render Section 1229b(a)’s “removability” clause superfluous. The Eleventh Circuit upheld the BIA’s decision, concluding that, on its face, the plain language of the statute is clear and dictates that “a lawful-permanent-resident alien need not be seeking admission” to the United States to be “render[ed]” “inadmissible.” In its decision, the Eleventh Circuit noted that its ruling was consistent with rulings by the Second, Third, and Fifth Circuits, but inconsistent with the Ninth Circuit’s ruling.
Barton filed a petition for a writ of certiorari with the U.S. Supreme Court on December 4, 2018. On April 22, 2019, the Supreme Court granted the petition to resolve the circuit split regarding the definition of “inadmissibility” within the stop-time rule.
IS AN INADMISSIBILITY ADJUDICATION REQUIRED TO RENDER AN ALIEN INADMISSIBLE?
Petitioner Barton argues that, under the stop-time rule, an alien is rendered inadmissible only if the offense the alien committed actually causes an adjudication of inadmissibility. Barton contends that, because his 1996 convictions were not the basis of his removal proceeding, they did not “render” him “inadmissible” Further, Barton asserts that he cannot be “rendered” inadmissible—as the government argues—because he was not seeking admission, thus there was no adjudication of admissibility. Barton states that the “plain meaning” of the stop-time rule supports his position because “inadmissible,” as used in the rule, is a term of art in immigration law that signifies the outcome of an admissibility proceeding. Barton explains that the test is not whether an offense could render an alien inadmissible in a hypothetical adjudication of admissibility—as the BIA and Eleventh Circuit concluded—rather, the judge must determine, in an admissibility proceeding, whether the offense in fact renders the alien inadmissible, which is legally impossible if the alien is not seeking admission. Barton maintains that this understanding is reinforced by the stop-time rule’s statutory context and other statutory clues. To illustrate his point that an immigration judge must actually find the alien “inadmissible,” Barton compares the word “renders” as used in the statute to the word “liable,” where, under a standard malpractice statute, a judge must actually find a defendant liable in order to award damages. In such situations, Barton posits that simply finding that the defendant could have been found liable under hypothetical circumstances is insufficient. Similarly, in this case, Barton notes that simply finding that he could have been found inadmissible under hypothetical circumstances is insufficient.
Respondent William Barr, the U.S. Attorney General (the “government”), counters that an offense committed by an alien need not have caused the alien to be adjudicated as inadmissible. Instead, the government contends that the commission of an offense listed under Section 1182(a)(2) automatically “renders” an alien “inadmissible.” According to the government, “inadmissibility” is a status, not necessarily an outcome of an admissibility proceeding, because “inadmissible” is like other words ending in “ible” or “able” that denote a person’s status. Furthermore, the government argues that Section 1182(a)(2) does not specify that an alien must be “seeking admission” to be rendered “inadmissible.” The government supports this assertion by pointing to other provisions in the statute where Congress specified that an alien could not be deemed “inadmissible” unless the alien was “seeking admission,” such as Sections 1182(a)(1), (6), (7), and (9). The government asserts that Congress’s omission of a “seeking admission” requirement from Section 1182(a)(2) is evidence that Congress intended “inadmissibility” to follow automatically from the commission of an offense listed under Section 1182(a)(2), without requiring an adjudication of inadmissibility based on that offense. Alternatively, the government claims that there was an actual adjudication of inadmissibility in this case by the immigration judge during Barton’s removal proceeding; the fact that this adjudication occurred without Barton seeking admission is irrelevant.
CAN AN ALREADY-ADMITTED RESIDENT ALIEN BE RENDERED “INADMISSIBLE”?
Barton argues that, even if the Court agrees with the government’s argument that “inadmissibility” refers to a legal status, Barton could never have held that status because he was already admitted into the country. The government’s interpretation of “status” is incorrect, Barton explains, because he has already been granted the status of “admitted,” and by virtue of this status he cannot be deemed “inadmissible”—a status that can only be held by those seeking re-entry. Barton asserts that he can only possess the status of “inadmissible” if he abandons his “lawfully permitted resident” status and/or takes other steps requiring re-admission. Apart from such an event, Barton continues, deeming him “inadmissible” is a legal impossibility. Therefore, Barton states, the government’s argument that Barton is inadmissible if he could hypothetically be adjudicated as “inadmissible” fails.
In response, the government reiterates its earlier argument: an alien is not required to be seeking admission to be deemed “inadmissible” for purposes of the stop-time rule. According to the government, “inadmissibility” is a status with different consequences depending on the immigration context. The government admits that, because Barton had already been admitted, he could not be deemed “inadmissible” for purposes of an admissibility adjudication. But, the government states, he could still be deemed “inadmissible” for purposes of eligibility for cancellation of removal under the stop-time rule. Indeed, the government contends that “inadmissibility” in the stop-time context does not depend on whether the resident alien is seeking admission. Rather, the government argues that Barton was “render[ed]” “inadmissible” by virtue of committing an offense listed under Section 1182(a)(2). Thus, the government concludes, because Barton was “render[ed]” “inadmissible” for stop-time purposes, he terminated his period of continuous residency and cannot successfully petition to cancel his removal proceeding.
Barton argues that, contrary to principles of statutory interpretation, the government’s reading of the stop-time rule gives no effect to the rule’s second clause—the “renders” clause—which must also be satisfied to “render” him “inadmissible.” He maintains that the requirements in each of the stop-time rule’s two clauses must be met to “render” an alien “inadmissible” because basic canons of interpretation dictate that superfluity should be avoided. Barton explains that the first clause requires that the alien commit an offense listed in Section 1182(a)(2), and the second clause requires that the offense cause the alien to be adjudicated as inadmissible. According to Barton, the government’s interpretation would cause the “renders” clause to be superfluous because the stop-time rule could be satisfied with the mere commission of an offense listed under Section 1182(a)(2). Barton stipulates that the first clause is satisfied, but he contends that the qualifying offense has not triggered an adjudication of inadmissibility as required by the “renders” clause, so he has not been “render[ed]” “inadmissible.” Therefore, Barton concludes, because principles of statutory interpretation require the court to give independent effect to both of the stop-time rule’s clauses, Barton has not been “render[ed]” “inadmissible.”
The government counters that its interpretation of the stop-time rule affords each clause independent significance. The government clarifies that mere commission of an offense listed under Section 1182(a)(2) is insufficient to satisfy the stop-time rule. Instead, the government asserts, the first clause (the “referred to” clause) requires the alien to commit one of the listed offenses. The government continues that the “renders” clause then imposes two more conditions: first, the alien must admit to or be convicted of the listed offense (which satisfied the first clause’s commission requirement) and, second, the crime must not fall under an exception specified in Section 1182(a)(2)(A)(ii) (for juvenile and petty offenses). According to the government, if the requirements of both clauses are satisfied, then the alien has committed an offense that “renders” the alien “inadmissible” for stop-time purposes, as is the case here. In this way, the government claims, the “renders” clause narrows the scope of the “referred to” clause by restricting the amount of offenses that may engage the stop-time rule, but it does not make the clause superfluous.
A group of former United States Immigration Judges (“Former Immigration Judges”), in support of Barton, argue that the government’s interpretation of the stop-time rule would create major inefficiencies in an already under-resourced immigration court system. The Former Immigration Judges contend that if “inadmissibility” can be founded on the mere admission by a resident alien that the alien committed a crime or acts that constitute a crime, then the government will be encouraged to derail and prolong immigration trials with questions aimed at garnering criminal admissions from resident aliens. The Former Immigration Judges maintain that this will overburden the immigration system by requiring immigration judges to conduct hearings to determine whether a statement made by a resident alien constitutes an admission of criminal conduct and by increasing the number of court proceedings and procedural devices surrounding such a determination. These additional hearings, they assert, would cause immigration judges to perform legal analysis outside of their area of expertise, tasking them with interpreting out-of-state criminal statutes during trials primarily focused on violations of immigration law.
The government responds that Barton’s interpretation of the stop-time rule would create its own set of inefficiencies for immigration courts. According to the government, Barton’s interpretation of Section 1229b(a) would restrict the government’s application of the stop-time rule to charges it brings in removal proceedings before the court. The government asserts that this would compel the government to bring additional charges that they would not otherwise bring, merely to preserve their ability to apply the stop-time rule. Barton’s interpretation, the government says, would force the already over-burdened and under-supplied court to waste time and resources assessing these numerous charges, which are unrelated to the issue of an alien’s removability, even if the resident alien has already conceded to prior actions that qualify the alien for removal. The government explains that, practically, the Department of Homeland Security does not normally learn of a resident alien’s criminal history until after the alien files an application for cancellation of removal. Thus, the government continues, if the government wants to use this information for stop-time purposes, it would have to restart its removal proceeding.
PROTECTING RESIDENT ALIENS FROM ABUSE VS. PUNISHING ABUSES OF U.S. HOSPITALITY
The Capital Area Immigrants’ Rights Coalition (“CAIRC”) argues on behalf of Barton that the government’s interpretation of the stop-time rule effectively strips the Attorney General of the discretion to grant relief to an alien whose removal would cause unjustifiably harsh results. The CAIRC explains that, under Section 1229b, the Attorney General may grant a cancellation of removal after determining that factors exist suggesting an alien should not be deported, such as evidence that the alien and/or the alien’s family would experience hardship. The CAIRC argues that, under the government’s interpretation of the stop-time rule, the Attorney General would not be able to evaluate these mitigating factors if the alien was convicted of a single offense listed under Section 1182(a)(2), regardless of the potential life-altering consequences. Specifically, the CAIRC points out that the government’s reading of the stop-time rule provides that a crime that would not be grounds for deportation at the time it occurred could effectively be used for that very purpose years, if not decades, later. The CAIRC continues that this leads to the absurd result where something as insignificant as a single misdemeanor marijuana charge could cause an alien to be deported, although the alien is “clearly rehabilitated” from committing the offense triggering the stop-time rule that was committed more than ten years ago, and even if that alien has children, a fiancée, and other family in the United States who would suffer if the alien was deported.
The government counters that the Attorney General’s discretionary power is “a matter of grace” that is reserved for aliens who are deserving of U.S. hospitality. The government acknowledges that some aliens have a greater claim for U.S. hospitality (and cancellation of removal) based on the longevity of their residence in and ties to the United States. However, the government notes that an alien should not receive credit for time spent in the United States after committing an offense—especially an offense constituting “moral turpitude”—that qualifies as an abuse of U.S. hospitality. According to the government, this limitation is reflected in the stop-time rule, which provides a necessary limit on who is deserving of removal reprieve by punishing those who have “abuse[d] the hospitality” of the United States by committing a crime listed under Section 1182(a)(2). The government argues that, by only applying the “inadmissibility” clause of the stop-time rule to those aliens who are seeking admission, Barton’s interpretation would permit the abuse of U.S. hospitality by shielding from removal those aliens currently residing in the U.S. who commit offenses of “moral turpitude”—such as aggravated assault, as in this case—before residing in the U.S. for a sufficient amount of time. The government asserts that whether an alien’s crime of “moral turpitude” makes the alien removable under one set of laws or inadmissible under another makes no difference because the statutory language makes clear that crimes of “moral turpitude” constitute an unacceptable abuse of U.S. hospitality.
- Kimberly Strawbridge Robinson: High Court to Review Removal of Lawful Permanent Residents, Bloomberg Law (April 22, 2019).
- Nicole Narea: Justices To Mull If Green Card Holder Can Be ‘Inadmissible’, Law360 (April 22, 2019).