Immigration and Education

LAOH & AOH National Resources

Immigration and Education Update  April 25, 2020 Submitted by Katherine Kissel

Thursday, April 23, 2020 the Supreme Court issued an opinion in the matter of Barton v Barr, 904 F.3d 1294 affirmed. Kavanaugh wrote the majority opinion with dissenting opinion by Sotomayor.

This case was argued on November 4, 2019. The holding of the court was that for purposes of cancellation of a removal eligibility, a section 1182 (a)(2) offense committed during the initial seven years of residence does not need to be one of the offenses of removal.

The crux of this matter is that the standard for admission vets people coming in with lesser than felony crimes and once here for deportation there is a requirement for felony crimes.  This ruling means that once you went through the procedure and met the requirements to be admitted, that you can now be deported  for less than  deportable offenses.  You can now be deported for acts that had they been committed before you sought admission you would be denied admission and a green card, even though they were not committed prior to admission.

The case involved Andre Barton, a Jamacian national, who over a period of twelve years was a lawful permanent resident (also known as a green card holder) of the U.S and was convicted of state crimes which included, a firearms offense, drug offenses and aggravated assault offenses.  An Immigration Judge found him to be removable (deportable)  not  for the list of crimes for deportation but for the list of acts that would have prohibited admission.  Mr. Barton applied for a cancellation of the removal.  He argued that the offense that precludes the cancelling of deportation must also be one of the offenses triggering the removal, which was the aggravated assaults.

To apply to set aside a deportation requires  a lawful permanent resident to have resided in the U.S for a continuous period of 7 years and another provision called the “stop-time” rule states that the continuous period of time is stopped or ended when the 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).  The aggravated assaults were committed within the first seven years of his admission to the U.S and were the type of charges listed under 1182 (a)(2). One eligibility requirement was that per section 8 U.S.C. sections 1229 (a)(d)(1)(B)(3) and (4) to apply for cancellation of deportation “must not have been convicted of an aggravated felony as defined in the immigration laws, and “during the initial seven years of continuous residence, must not have committed certain other offenses listed in 8 U.S.C section 1182 (a)(2).  If the green card holder meets those requirements the Immigration Judge has the discretion, not the obligation, to cancel the removal and allow the green holder permanent resident to remain in the U.S.

The Immigration Judge concluded that Mr. Barton was not eligible for cancellation of removal. The Board of Immigration Appeals and the Eleventh Circuit agreed.  So the Courts reasoned that if the charge occurred during the seven years but no conviction occurred until after the seven years passed he was still ineligible for cancellation of deportation and in addition that because the crimes were of “moral turpitude”, (specifically the assaults) which is a relevant category of acts per section 1182 (a)(2), that a noncitizen is therefore “inadmissible”. The Second, Third and Fifth Circuits agreed and the Ninth Circuit did not.

Barton made several arguments, and he argued he was only inadmissible upon conviction not the occurrence and that only after adjudication was he inadmissible which occurred outside of the seven years. The Court interpreted the statutes section 1182 (a)(2) and section 1227 (a)(2) to mean “that a noncitizen faces immigration consequences from being convicted of a section 1182(a)(2) offense  even though the noncitizen  is lawfully admitted and is not necessarily removable solely because of the offense.”  The Supreme Court affirmed and upheld that although the state aggravated assault offenses that occurred in 1996 was not the offense that triggered the deportation (a felony) and, it did not have to be one of the offenses that would trigger deportation but could be one that would have prohibited admission (even though it had not occurred prior to admission) and  even if it occurred during the seven years and the conviction did not occur until after the seven years.

Dissenting opinion Justice Sotomayor , along with Justice Ginsburg, Justice Breyer and Justice being the 4 dissenting Justices.

Opined that the majority erred in confusing the two types of status of a person who was a noncitizen seeking admission and those already admitted under the Immigration and Nationality Act. They argued that inadmissibility is for individuals seeking admission and that deportation is for persons who were noncitizens but already admitted but removable.  They argued that the “stop-time rule” ends a noncitizens continuous residence that make the individual ineligible for certain types of relief from deportation.

The dissenting argument was that there was no language in the statute that “ the term inadmissible, for the purposes of the stop-time rule, refers to a status that a noncitizen could acquire even if he or she is not seeking admission” and that he is inadmissible yet at the same time lawfully admitted.

They argue that one cannot argue one is not admissible once one is already admitted, which is different from removable and that the Government needed to show he committed a crime that made him deportable not inadmissible and that the Government had not met that burden.

They state that it is significant that there is a two-track distinction and structure in the statute, one for inadmissibility and one for deportation. Grounds for inadmissibility are broader than those for deportation and the burden of proof on the Government is different for each track. That criminal grounds for deportation once admitted are distinct and different by express design of the Congressional Act. That the court erred to mix the two standards for those seeking to come in, from those already processed and determined eligible to enter for a long period of time. That is was not the intent of the  Act to permit using acts to go back in time to determine them not to be eligible for admission once already vetted and admitted and the higher standard of a felony for deportation was required.

Katherine Kissel, MDLAOH, Immigration and Education, Appointee