February 25, 2020

Barton v. Barr

IMMIGRATION LAW

Does a Conviction for a Crime Listed in the Grounds of Inadmissibility Terminate a Lawfully Admitted Permanent Resident’s Period of Continuous Residence for Purposes of Cancellation of Removal?

CASE AT A GLANCE

Andre Martello Barton, a lawful permanent resident of the United States who has lived in the United States since 1989, was found deportable by an immigration judge. Barton applied for cancellation of removal. The immigration court denied his request because, under the “stop-time” rule, Barton’s 1996 convictions prevented him from accruing the seven years of continuous residence required for cancellation of removal. Barton argues that his 1996 convictions do not trigger the stop-time rule.

Docket No. 18-725
Argument Date: November 4, 2019
From: The Ninth Circuit
by D. Carolina Núñez
J. Reuben Clark Law School, Brigham Young University, Provo, UT

INTRODUCTION

Under the Immigration and Nationality Act (INA), noncitizens1 are subject to removal from the United States under conditions provided in the INA. However, noncitizens who have been admitted to the United States and noncitizens who have not been admitted to the United States are subject to different grounds of removal. Noncitizens who have not been admitted to the United States are subject to “grounds of inadmissibility.” Noncitizens who are present after having been admitted to the United States are subject to “grounds of deportability.”

The statutory grounds for deportability and inadmissibility are not the same. For instance, noncitizens who are present without having been admitted to the United States are inadmissible if they have been convicted of “a crime involving moral turpitude” under 8 U.S.C. § 1182(a)(2)(A)(i). Admitted noncitizens, however, are deportable for a conviction of a single crime involving moral turpitude only if the crime was committed within five years of admission to the United States under 8 U.S.C. § 1227(a)(2)(A)(i).

Noncitizens who have been found inadmissible or deportable (and are therefore facing removal from the United States) may apply for cancellation of removal, a discretionary form of relief. Noncitizens are eligible for cancellation only if they meet statutory requirements. Under 8 U.S.C. § 1229b(a), certain noncitizens who are lawful permanent residents may apply for cancellation of removal if, among other requirements, they have “resided in the United States continuously for 7 years after having been admitted in any status.” Known as the “stop-time” rule, 8 U.S.C. § 1229b(d) specifies events or conditions that terminate a noncitizen’s period of continuous residence. See 8 U.S.C. § 1229b(d)(1). One such event is the noncitizen’s commission of an offense that “renders the alien inadmissible to the United States” under a particular subsection of the INA’s grounds of inadmissibility. See id.

The Ninth Circuit has concluded that the portion of the stop-time rule referring to certain grounds of inadmissibility cannot apply to noncitizens who have already been admitted and therefore are not subject to those grounds of inadmissibility. See Nguyen v. Sessions, 901 F.3d 1093 (2018). Other courts, including the Second, Fifth, and Eleventh Circuits, however, have concluded that the stop-time rule’s provision based on grounds of inadmissibility can terminate noncitizens’ continuous residence regardless of whether they have already been admitted to the United States. See Heredia v. Sessions, 865 F.3d 60 (2nd Cir. 2017); Calix v. Lynch, 784 F.3d 1000 (5th Cir. 2015); Barton v. U.S. Attorney Gen., 904 F.3d 1294 (11th Cir. 2018).

ISSUE

Does a noncitizen’s conviction of a crime referred to in 8 U.S.C. 1182(a)(2) trigger the stop-time rule, which governs the calculation of a noncitizen’s period of continuous residence in the United States for cancellation of removal eligibility, when that noncitizen is a lawfully admitted permanent resident who is not subject to removal under 8 U.S.C. 1182(a)(2)?

FACTS

Andre Martello Barton, a citizen of Jamaica, arrived in the United States on May 27, 1989, on a B-2 tourist visa. Barton became a lawful permanent resident in June of 1992. In January of 1996, when Barton was 18 years old, he pled guilty to charges of aggravated assault, criminal damage to property, and possession of a firearm during the commission of a felony. Barton was later convicted of controlled-substance offenses in 2007 and 2008. In 2016, the Department of Homeland Security (DHS) began removal proceedings against Barton based on several grounds of deportability in the INA.

Barton conceded that he was removable based on two grounds of deportability and filed an application for cancellation of removal. The immigration judge concluded that Barton was ineligible for cancellation of removal because his 1996 crimes terminated Barton’s period of continuous residence in the United States several months shy of the seven years required for cancellation of removal. The Board of Immigration Appeals (BIA) agreed with the immigration judge’s conclusion, and Barton sought review before the Eleventh Circuit. The Eleventh Circuit upheld the BIA decision and denied Barton’s petition.

CASE ANALYSIS

The INA allows noncitizens who are facing removal from the United States to apply for cancellation of removal. A successful request for cancellation results in the noncitizen being able to remain in the United States with lawful permanent resident status. Cancellation of removal is available only to noncitizens who meet several statutory requirements. A lawfully admitted permanent resident is eligible for cancellation of removal if he “(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony.” 8 U.S.C. § 1229b(a).

The INA’s cancellation of removal provisions include what is known as the “stop-time” rule. Under that provision, a noncitizen’s continuous residence ends “when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) or removable from the United States under section 1227(a)(2)…of this title.”

Section 1182(a)(2) provides that, with certain exceptions not applicable to this case, “any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude…is inadmissible.” 8 U.S.C. § 1182(a)(2)(A) (i)(I). Section 1227(a)(2) also refers to crimes involving moral turpitude: “[a]ny alien who is convicted of a crime involving moral turpitude committed within five years…after the date of admission, and is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.” 8 U.S.C. § 1227(a)(2)(A)(i).In addition, “[a]ny alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct…is deportable.” 8 U.S.C. § 1227(a)(2)(A)(ii).

At issue in this case is whether Barton has accumulated the necessary seven years of continuous residence in the United States to be eligible for cancellation of removal. The government argues that Barton’s period of continuous residence ended in 1996, short of the required seven years, under the stop-time rule. The government initially contended that Barton’s 1996 crimes triggered the stop-time rule both because those crimes included at least one crime involving moral turpitude as referenced in Section 1182(a) and because the 1996 crimes included two or more crimes involving moral turpitude as referenced in Section 1227(a)(2). The government, however, abandoned its arguments regarding Section 1227(a)(2) when Barton argued that his 1996 convictions arose “out of a single scheme of criminal misconduct” and therefore were excluded by the language of Section 1227(a)(2). It is uncontested that Barton’s 1996 convictions, even if arising out of a single scheme of criminal misconduct, include a crime involving moral turpitude under Section 1182(a)(2).

An offense listed in Section 1182(a)(2) ends a noncitizen’s period of continuous residence for purposes of cancellation if the offense “renders the alien inadmissible to the United States.” See 8 U.S.C. § 1229b(d)(1). The parties disagree on whether Barton’s crimes “render[] [him] inadmissible to the United States.” Barton proffers two alternative interpretations. First, he argues that an offense “renders the alien inadmissible” only if that offense is the basis on which the noncitizen was found to be removable from the United States. In the alternative, Barton argues that an offense “renders the alien inadmissible” if that offense could be the basis of removability for that particular noncitizen. Because an admitted noncitizen cannot be removed based on a ground of inadmissibility (but must instead be removed based on a ground of deportability), Barton argues, conviction of a crime referenced in Section 1182(a)(2) can never trigger the stop-time rule for an admitted noncitizen. The government argues that an offense listed in Section 1182(a)(2) “renders the alien inadmissible,” regardless of whether the noncitizen at issue is actually adjudicated to be inadmissible or could have been adjudicated to be inadmissible.

The discussion below focuses on Barton’s preferred interpretation and the government’s interpretation. The parties’ primary arguments center around the plain language of the stop-time rule and Section 1182(a)(2), the structure of the stop-time rule, and the INA’s structure and history.

Plain Language of the Stop-Time Rule and Section 1182(a)(2)

Barton’s preferred interpretation of the stop-time rule requires that a conviction for a crime referenced in Section 1182(a)(2) be the basis for an adjudication of inadmissibility that precedes the noncitizen’s application for cancellation of removal. Because Barton was not found inadmissible under Section 1182(a)(2) and, as an admitted noncitizen, could not be adjudicated to be inadmissible, this interpretation would result in Barton’s residence in the United States to continue past the date of the 1996 convictions. This interpretation would also result in the portion of the stop-time rule that references Section 1182(a)(2) being inapplicable to admitted noncitizens who are not otherwise seeking admission as a category. This, Barton argues, is consistent with the language and structure of the stop-time rule.

Barton focuses on the plain meaning of “renders the alien inadmissible.” 8 U.S.C. § 1229b(d)(1). First, Barton discusses the term render. Relying on dictionary definitions of render, Barton argues that render means “to cause to be or to become.” Second, Barton highlights the use of the definite article the in “the alien,” which he argues must refer to the noncitizen applying for cancellation of removal rather than a hypothetical noncitizen. Third, Barton discusses the term inadmissible, which he describes as a term of art in immigration law referring to a decision that can be made only by an immigration judge at the conclusion of an adjudication. In support of this contention, Barton refers to the INA’s description of removal proceedings, which may be triggered by a charge of inadmissibility or a charge of deportability. Under the INA, the “immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.” 8 U.S.C. § 1229a(a)(1). According to Barton, the phrase “renders the alien inadmissible,” then, requires that a conviction of a crime referred to in Section 1182(a)(2) actually trigger an adjudicative proceeding that results in the very noncitizen in question being declared inadmissible by an immigration judge.

The government claims that the language “renders the alien inadmissible” operates automatically by law rather than by adjudication. According to the government, a conviction of a crime referred to in Section 1182(a)(2) causes a noncitizen to be inadmissible at the moment of conviction whether the noncitizen is seeking admission or not. For support, the government turns to the specific language of Section 1182(a)(2)(A)(i), which provides that “any alien who…is convicted of…a crime involving moral turpitude…is inadmissible.” 8 U.S.C. § 1182(a)(2)(A)(i). The government points to the word any and argues that the statute does not distinguish between noncitizens seeking admission or noncitizens who have already been admitted. The statute, the government claims, plainly applies to make any noncitizen “inadmissible” upon a conviction of a crime listed in Section 1182(a)(2). A noncitizen need not have been denied admission but instead must merely be “inadmissible,” “just as a ‘terminal illness renders its victim untreatable regardless of whether she is actively seeking treatment.’” The government further argues that Section 1182(a)(2) contrasts with other grounds of inadmissibility in Section 1182(a) that are indeed conditioned on a noncitizen seeking admission. Where Congress has chosen not to include a condition in Section 1182(a)(2) that the noncitizen be seeking admission, the government explains, the Court must interpret that provision to operate even where a noncitizen is not seeking admission.

Structure of the Stop-Time Rule

Barton argues that the structure of the stop-time rule supports his preferred interpretation. Barton breaks down the part of the stop-time rule at issue into two clauses. The rule, he argues, ends a noncitizen’s period of continuous residence when two conditions are met: “when the alien has committed an offense referred to in section 1182(a)(2) of this title” and when that crime “renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2)…of this title.” 8 U.S.C. § 1229b(d)(1). Barton claims that the government’s interpretation, which does not require an adjudication of inadmissibility, fails to give effect to the language “renders the alien inadmissible to the United States.” To achieve the effect the government proffers, Congress could have simply omitted the portion of the stop-time rule requiring that the commission of the crime had rendered the noncitizen inadmissible.

The government responds by arguing that there are crimes “referred to in section 1182(a)(2)” that do not render a noncitizen inadmissible, and the stop-time rule’s requirement that the crime result in inadmissibility simply recognizes this. Specifically, Section 1182(a)(2) makes a noncitizen inadmissible only if the noncitizen is “convicted of,” “admits having committed,” or “admits committing acts which constitute the essential elements” of a crime involving moral turpitude. See 8 U.S.C. § 1182(a)(2)(A)(i). In addition, Section 1182(a)(2) provides certain instances in which a noncitizen is not inadmissible even after being convicted of, admitting the commission of, or admitting the commission of acts that constitute the essential elements of a crime involving moral turpitude. See 8 U.S.C. § 1182(a)(2)(A)(ii)(providing certain exceptions to the ground of inadmissibility for crimes involving moral turpitude). Thus, while a crime involving moral turpitude sometimes renders a noncitizen inadmissible, it does not always render a noncitizen inadmissible. The stop-time rule’s requirement that the crime referred to in Section 1182(a)(2) “render[] the alien inadmissible” merely recognizes this, according to the government.

Structure and History of the INA

Barton argues that the history and structure of the INA support his preferred interpretation of the stop-time rule.

In discussing the structure of the INA, Barton raises three arguments. First, he argues that the stop-time rule must be considered in light of the process for cancellation of removal. After all, he argues, the stop-time rule applies exclusively to the calculation of time for purposes of cancellation of removal. Because cancellation of removal is at issue only after an immigration judge has determined a noncitizen is removable, either because that noncitizen is inadmissible or deportable, it is only natural to interpret the stop-time rule as referring to the very determination of removability that has just occurred prior to the application of cancellation of removal. Thus, Barton argues, the stop-time rule’s language requiring that the commission of a crime referred to in Section 1182(a)(2) render the noncitizen inadmissible can only be referring to the actual outcome of that noncitizen’s removal proceedings.

Second, Barton argues that the stop-time rule should not be interpreted in a way that results in eligibility for relief from removal being foreclosed by commission of a crime that could not have resulted in his removal from the United States in the first place. “Congress did not deem Petitioner’s 1996…convictions serious enough to make him subject to deportation. But because Petitioner is deportable for a different reason, these convictions suddenly become serious enough to make that deportation mandatory. It is difficult to discern any rational justification for this scheme.”

Third, Barton argues that the stop-time rule should not be interpreted in a way that requires immigration judges “to conduct two separate removal hearings for a single alien.” In order to determine if the stop-time rule has been triggered, immigration judges would have to consider facts and circumstances that were not part of the noncitizen’s removal hearing. This, in turn, would result in the judge having to determine whether the noncitizen could have been determined to be inadmissible had the noncitizen been charged with being inadmissible. While such a hypothetical analysis may be easy in the case of considering whether there has been a conviction, other cases will require detailed fact finding.

Barton also turns to the history of the INA to support his preferred interpretation of the stop-time rule. According to Barton, the BIA had construed a predecessor to the modern cancellation of removal provision in the same way urged by Barton here. Under former INA Section 244(a), a noncitizen who “is deportable” as a narcotics violator was ineligible for a kind of relief from removal referred to as “suspension of deportation.” In Matter of Ching, the BIA asserted that a “determination of deportability may emerge only from a record made in a proceeding before a special inquiry officer” (12 I. & N. Dec. 710 (B.I.A. 1968)) and held that “an alien is ‘deportable’ by a narcotics offense only if he has been found to be deportable by that offense.” See id. at 712.

The government, in contrast, argues that the structure and history of the INA supports its position that a noncitizen need not be seeking admission in order to be “inadmissible.”

The government provides examples of when the INA denies benefits to admitted noncitizens based on inadmissibility regardless of whether the noncitizen is seeking admission. A noncitizen who is granted temporary resident status, for example, may have that status terminated upon commission of an act that “makes the alien inadmissible.” See 8 U.S.C. 1160(a)(3)(B)(ii) and 1255a(b)(2)(B). This, the government asserts, illustrates the nature of “inadmissibility” as a status triggered by law that can apply in contexts outside of a formal removal proceeding or outside the context of a noncitizen seeking admission.

The history of the INA also suggests that the stop-time rule must be interpreted to be triggered by an admitted noncitizen’s commission of a crime referred to in Section 1182(a)(2), according to the government. The government discusses the history of former INA Section 212(c), 8 U.S.C. 1182(c) (1994), a predecessor to cancellation of removal. Under Section 212(c), the attorney general could waive the exclusion of certain lawful permanent residents who “had lawfully resided in the United States for at least seven years before temporarily leaving the country, unless [they were] excludable on one of two specified grounds.” Judulang v. Holder, 565 U.S. 42 (2011). The text of Section 212(c) applied only to noncitizens who were being excluded from the United States but did not apply to individuals who were already in the United States and were being deported. See 8 U.S.C. 1182(c)(1994). This resulted in the potential for a lawful permanent resident erroneously allowed to enter the United States and, therefore, escaped an exclusion proceeding, to face the prospect of being charged with deportability where discretionary relief under Section 212(c) would be unavailable. The attorney general and the BIA “resolved that ‘apparent anomaly’ by permitting permanent residents in deportation proceedings to apply for the Section 212(c) relief that they could have sought if they had been denied admission following their travel abroad.”

The government argues that it would be nonsensical to interpret Section 212(c)’s successor, the cancellation of removal provisions that apply to noncitizens in inadmissibility and deportation proceedings, to resurrect the kinds of discrepancies that the BIA and attorney general had resolved. Under Barton’s interpretation, the government argues, “(1) aliens charged with inadmissibility upon their return from a trip abroad” would be treated less favorably than “(2) aliens who were likewise inadmissible upon their return from a trip abroad, but who were admitted by an immigration official erroneously and then charged with deportability after having already been admitted.”

SIGNIFICANCE

The Court’s decision in this case will significantly affect admitted lawful permanent residents’ access to relief from removal, a type of relief that can prevent some long-time lawful residents from being separated from families and communities and from being removed to countries to which they have few ties. A decision in favor of the government has the potential to eliminate a lawful permanent resident’s eligibility for cancellation of removal based on minor crimes that would not themselves have triggered removal proceedings before an immigration judge. Not only does this increase the stakes associated with even the most minor criminal charges, it increases the burden on attorneys advising immigrants. Immigration attorneys and criminal defense attorneys will need to tread carefully to ensure that their clients do not unwittingly increase the possibility of a future removal from the United States by pleading guilty—perhaps out of convenience or to avoid the cost of a trial—to minor crimes. These potential consequences may further increase the burden of advising criminal defendants of the potential immigration consequences of criminal proceeding results required by Padilla v. Kentucky, 559 U.S. 356 (2010). In addition, a decision in favor of the government will blur the line between inadmissibility and deportability, as well as between admitted noncitizens and noncitizens who have not been admitted, dividing lines which run throughout the INA and court opinions interpreting the INA.

A decision in favor of Barton will preserve many lawful permanent residents’ access to relief from removal and maintain the distinction between deportability and inadmissibility, as well as between admitted noncitizens and noncitizens who have not been admitted. But Barton’s interpretation may result in some anomalies of its own. Because the INA provides instances in which an admitted noncitizen is nonetheless deemed to be seeking admission, Barton’s interpretation would leave some lawful permanent residents ineligible for relief from removal. Two lawful permanent residents who have identical criminal records may find that only one of them is disqualified from relief from removal for a crime merely because one of them has taken an extended trip abroad, for instance. See, e.g., 8 U.S.C. § 1101(a)(13)(C) (specifying that “an alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States…unless the alien…has been absent from the United States for a continuous period in excess of 180 days.”)

D. Carolina Núñez is the Associate Dean for Research and Academic Affairs and a professor of law at Brigham Young University’s J. Reuben Clark Law School where she writes on immigration and citizenship law. She may be reached at nunezc@law.byu.edu or at 801.422.0866.

PREVIEW of United States Supreme Court Cases 47, no. 2 (November 4, 2019): 4–8. © 2019 American Bar Association

ATTORNEYS FOR THE PARTIES

  • For Petitioner Andre Martello Barton (Adam G. Unikowsky, 202.639.6041)
  • For Respondent William P. Barr, Attorney General (Noel J. Francisco, Solicitor General, 202.514.2217)

AMICUS BRIEFS

In Support of Petitioner Andre Martello Barton

  • Capital Area Immigrants' Rights Coalition (Susan Leann Baker Manning, 202.373.6172)
  • Former United States Immigration Judges (David G. Keyko, 212.858.1064)
  • Immigration Law Professors (Nancy Morawetz, 212.998.6430)
  • Momodoulamin Jobe and the Immigrant Defense Project (Ari Benjamin Asher Holtzblatt, 202.663.6964)
  • National Immigrant Justice Center and American Immigration Lawyers Association (Jean-Claude Andre, 202.896.6000)