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Breaking News: Supreme Court Decides Cancellation of Removal Case, Affirms Order of Crime-Based Removal<!–END ARTICLE TITLE–>
</h3><h4><i>by <a href=”http://discuss.ilw.com/articles/articles/393763-article-breaking-news-supreme-court-decides-cancellation-of-removal-case-affirms-order-of-crime-based-removal-by-kevin-johnson#bio”>
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Kevin Johnson
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<p>
Today, the Supreme Court in a 5-4 decision in
<a href=”https://www.supremecourt.gov/opinions/19pdf/18-725_6khn.pdf”>
<strong> Barton v. Barr</strong>
</a>
. Justice Kavanaugh wrote for the majority. Justice Sotomayor wrote the
dissent. The justices split along partisan lines.
</p>
<p>
Acknowledging the “puzzling” statutory language,
<a href=”https://www.american.edu/profiles/faculty/jrathod.cfm”>
<strong>Jayesh Rathod</strong>
</a>
summarized the argument recap on
<a
href=”https://www.scotusblog.com/2019/11/argument-analysis-justices-examine-structure-and-purpose-of-puzzling-immigration-statute/”
>
<strong>SCOTUSBlog</strong>
</a>
, concluding that, at the end of the argument, “Barton’s fate remained
unclear.”
</p>
<p>
Here is the syllabus in the case:
</p>
<p>
“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).
</p>
<p>
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.
</p>
<p>
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.
</p>
<p>
(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).
</p>
<p>
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.
</p>
<p>
(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).
</p>
<p>
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.
</p>
<p>
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.
</p>
<p>
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.
</p>
<p>
***
</p>
<p>
The majority treats the case as an ordinary case of statutory
interpretation, with Barton losing. Justice Sotomayor’s dissent responds as
follows:
</p>
<p>
“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. “
</p>
<p>
KJ
</p>
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<hr><h4>
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About The Author<br>
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<a href=”https://law.ucdavis.edu/faculty/johnson/” target=”_blank”><b>Kevin Johnson</b></a> is Dean, Mabie-Apallas Professor of Public Interest Law, and Professor of Chicana/o Studies. He joined the UC Davis law faculty in 1989 and was named Associate Dean for Academic Affairs in 1998. Johnson became Dean in 2008. He has taught a wide array of classes, including immigration law, civil procedure, complex litigation, Latinos and Latinas and the law, and Critical Race Theory. In 1993, he was the recipient of the law school’s Distinguished Teaching Award.Dean Johnson has published extensively on immigration law and civil rights. Published in 1999, his book How Did You Get to Be Mexican? A White/Brown Man’s Search for Identity was nominated for the 2000 Robert F. Kennedy Book Award. Dean Johnson’s latest book, Immigration Law and the US-Mexico Border (2011), received the Latino Literacy Now’s International Latino Book Awards – Best Reference Book. Dean Johnson blogs at ImmigrationProf, and is a regular contributor on immigration on SCOTUSblog. A regular participant in national and international conferences, Dean Johnson has also held leadership positions in the Association of American Law Schools and is the recipient of an array of honors and awards. He is quoted regularly by the New York Times, Los Angeles Times, and other national and international news outlets. </p>
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