Thursday, April 23, 2020

Breaking News: Supreme Court Decides Cancellation of Removal Case, Affirms Order of Crime-Based Removal

Today, the Supreme Court in a 5-4 decision in Barton v. Barr.  Justice Kavanaugh wrote for the majority.  Justice Sotomayor wrote the dissent.  The justices split along partisan lines.

Acknowledging the "puzzling" statutory language, Jayesh Rathod summarized the argument recap on SCOTUSBlog, concluding that, at the end of the argument, "Barton’s fate remained unclear."

Here is the syllabus in the case:

"When a lawful permanent resident commits certain serious crimes, the Government may initiate removal proceedings before an immigration judge.  8 U. S. C. §1229a.  If the lawful permanent resident is found removable, the immigration judge may cancel removal, but only if the lawful permanent resident meets strict statutory eligibility requirements.  §§1229b(a), 1229b(d)(1)(B).

Over the span of 12 years, lawful permanent resident Andre Barton was convicted of state crimes, including a firearms offense, drug offenses, and aggravated assault offenses.  An Immigration Judge found him removable based on his state firearms and drug offenses.  Barton applied for cancellation of removal.  Among the eligibility requirements, a lawful permanent resident must have “resided in the United States continuously for 7 years after having been admitted in any status.”  §1229b(a)(2).  Another provision, the so-called stop-time rule, provides that a continuous period of residence “shall be deemed to end” when the lawful permanent resident commits “an offense referred to in section 1182(a)(2) . . . that renders the alien inadmissible to the United States under section 1182(a)(2).”  §1229b(d)(1)(B).  Because Barton’s aggravated assault offenses were committed within his first seven years of admission and were covered by §1182(a)(2), the Immigration Judge concluded that Barton was not eligible for cancellation of removal.  The Board of Immigration Appeals and the Eleventh Circuit agreed.

Held: For purposes of cancellation-of-removal eligibility, a §1182(a)(2) offense committed during the initial seven years of residence does not need to be one of the offenses of removal.  Pp. 6–17.

(a) The cancellation-of-removal statute functions like a traditional recidivist sentencing statute, making a noncitizen’s prior crimes relevant to eligibility for cancellation of removal.  The statute’s text clarifies two points relevant here. First, cancellation of removal is precluded when, during the initial seven years of residence, the noncitizen “committed an offense referred to in section 1182(a)(2),” even if (as in Barton’s case) the conviction occurred after the seven years elapsed. Second, the offense must “rende[r] the alien inadmissible” as a result. For crimes involving moral turpitude, the relevant category here, §1182(a)(2) provides that a noncitizen is rendered “inadmissible” when he is convicted of or admits the offense.  §1182(a)(2)(A)(i).

As a matter of statutory text and structure, the analysis here is straightforward.  Barton’s aggravated assault offenses were crimes involving moral turpitude and therefore “referred to in section 1182(a)(2).”  He committed the offenses during his initial seven years of residence and was later convicted of the offenses, thereby rendering him “inadmissible.”  Barton was, therefore, ineligible for cancellation of removal.  Pp. 6–10.

(b) Barton’s counterarguments are unpersuasive.  First, he claims that the statute’s structure supports an “offense of removal” approach. But §1227(a)(2) offenses—not §1182(a)(2) offenses—are ordinarily the basis for removal of lawful permanent residents.  Therefore, Barton’s structural argument falls apart.  If he were correct, the statute presumably would specify offenses “referred to in section 1182(a)(2) or section 1227(a)(2).” By contrast, some other immigration law provisions do focus only on the offense of removal, and their statutory text and context support that limitation.  See, e.g., §§1226(a), (c)(1)(A), 1252(a)(2)(C).

Second, seizing on the statutory phrase “committed an offense referred to in section 1182(a)(2) . . . that renders the alien inadmissible to the United States under section 1182(a)(2),” §1229b(d)(1)(B), Barton argues that a noncitizen is rendered “inadmissible” when actually adjudicated as inadmissible and denied admission to the United States, something that usually cannot happen to a lawfully admitted noncitizen.  But the statutory text employs the term “inadmissibility” as a status that can result from, e.g., a noncitizen’s (including a lawfully admitted noncitizen’s) commission of certain offenses listed in §1182(a)(2).  See, e.g., §§1182(a)(2)(A)(i), (B).  And Congress has made that status relevant in several statutory contexts that apply to lawfully admitted noncitizens such as Barton.  In those contexts, a noncitizen faces immigration consequences from being convicted of a §1182(a)(2) offense even though the noncitizen is lawfully admitted and is not necessarily removable solely because of that offense.  See, e.g., §§1160(a)(1)(C), (a)(3)(B)(ii).  Such examples pose a major hurdle for Barton’s textual argument, and Barton has no persuasive answer.

Third, Barton argues that the Government’s interpretation treats as surplusage the phrase “or removable from the United States under section 1227(a)(2) or 1227(a)(4).”  But redundancies are common in statutory drafting.  The Court has often recognized that sometimes the better overall reading of a statute contains some redundancy.  And redundancy in one portion of a statute is not a license to rewrite or eviscerate another portion of the statute contrary to its text.

Finally, Barton argues alternatively that, even if inadmissibility is a status, and even if the offense that precludes cancellation of removal need not be one of the offenses of removal,  a noncitizen must at least have been capable of being charged with a §1182(a)(2) inadmissibility offense as the basis for removal. Because the cancellation-of-removal statute is a recidivist statute, however, whether the offense that precludes cancellation of removal was charged or could have been charged as one of the offenses of removal is irrelevant.  Pp. 10–17.  



The majority treats the case as an ordinary case of statutory interpretation, with Barton losing.  Justice Sotomayor's dissent responds as follows:

"At bottom, the Court’s interpretation is at odds with the express words of the statute, with the statute’s overall structure, and with pertinent canons of statutory construction. It is also at odds with common sense.  With virtually every other provision of the INA, Congress granted preferential treatment to lawfully admitted noncitizens—and most of all to LPRs like Barton.  But because of the Court’s opinion today, noncitizens who were already admitted to the country are treated, for the purposes of the stop-time rule, identically to those who were not—despite Congress’ express references to inadmissibility and deportability. The result is that, under the Court’s interpretation, an immigration judge may not even consider whether Barton is entitled to cancellation of removal—because of an offense that Congress deemed too trivial to allow for Barton’s removal in the first instance. Because the Court’s opinion does no justice to the INA, let alone to longtime LPRs like Barton, I respectfully dissent. "


UPDATE (April 24):  Jayesh Rathod analyzes the Court's decision for SCOTUSBlog here.


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