Supreme Court Tightens Standards for Criminal Aliens to Avoid Deportation

The Supreme Court took up the case of Barton v. Barr, No. 18-725, to resolve a division of opinion among the courts of appeals regarding when a legal permanent resident alien is eligible for relief from deportation after being convicted of an offense that makes him deportable. Today the Court decided, 5-4, on the stricter of the two interpretations.

Caution: the immigration statutes are complex and often poorly drafted. Reading them is like reading the Internal Revenue Code. Keep those headache tablets handy as we venture into the swamp. The immigration law is in title 8 of the United States Code. All section references that follow are to that title.

For anyone who is not a citizen at birth, there is a spectrum of degrees of attachment to this country and rights under its law. The spectrum ranges from none whatever to naturalized citizenship. One step short of the naturalized citizen is the Legal Permanent Resident, or LPR. The cards issued to LPRs used to be green a long time ago, so LPRs are also known as “green card holders.”

Traditionally, aliens seeking admission and denied it were “excluded,” while those kicked out after being admitted were “deported.” In a revamp of immigration law,  the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Congress brought both types of proceedings under the umbrella of “removal.”

Section 1182(a) contains a long list of grounds that make aliens “ineligible to receive visas and ineligible to be admitted to the United States.” Paragraph (a)(2) is about crimes. Clause (a)(2)(A)(i) generally makes “inadmissible” any alien who is convicted of or admits having committed “a crime of moral turpitude” or a drug crime.

Section 1227(a)(2) and (4) defines crimes that make an alien deportable. You might think that the crimes that make one deportable would be a proper subset of the crimes that make one ineligible to enter in the first place, but you would be mistaken. The two sets have a lot of overlap, but neither is a subset of the other.

When an alien present in the country has committed an offense making him deportable, the government may initiate removal proceedings before an immigration judge. See §1229a. Despite the title “judge,” an immigration judge is an executive officer, not a judge in the judicial branch of the government under Article III of the Constitution.

Section 1229b(a) says, the “Attorney General may cancel removal” of an LPR under certain conditions, but in practice this means the immigration judge may cancel removal under those conditions. (Subdivision (b) is for other aliens, with more strict conditions.)

One of the conditions is that the LPR “has resided in the United States continuously for 7 years after having been admitted in any status ….” But there is a catch.

Under (d)(1)(B), the seven year clock stops “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) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title ….” Interpretation of that language is what Barton v. Barr is all about.

From the opinion of the Court:

Andre Barton is a Jamaican national and a lawful permanent resident of the United States. In 1996, he was convicted in a Georgia court of a firearms offense stemming from an incident where Barton and a friend shot up the house of Barton’s ex-girlfriend. In separate proceedings in 2007 and 2008, he was convicted in Georgia courts of state drug offenses. One case involved methamphetamine, and the other involved cocaine and marijuana.

Those crimes qualify to make him deportable, without dispute. But is he eligible to apply for cancellation of removal in the discretion of the immigration judge, or is he categorically excluded from that relief?

One category of exclusion from relief is commission of an “aggravated felony,” as defined in §1101(a)(43)(A)-(U). I have criticized that sometimes-illogical list on this blog before. For now, suffice it to say that none of Barton’s crimes are on the list. That leaves the clock-stopping crimes in §1229b(d)(1)(B).

Barton has another conviction, not among those he is being deported for, for a crime committed before his seventh anniversary as a U.S. resident, though not by much. This conviction is for aggravated assault arising from the same incident as the firearms offense. This is a crime of moral turpitude. It is therefore an “an offense referred to in section 1182(a)(2).”

The government’s brief describes the incident as follows:

On January 23, 1996, petitioner was driving by his ex-girlfriend’s house in Duluth, Georgia, when his friend—a passenger in the car—stood up through the sunroof and fired a gun at the house…. Three people were inside the house at the time…. Petitioner was charged with three counts of aggravated assault, one count of first-degree criminal damage to property, and one count of possession of a firearm in the commission of a felony, all in violation of Georgia law…. Following a guilty plea in state court, petitioner was convicted on all counts.

In the dissent, Justice Sotomayor apparently gives credence to Barton’s later, self-serving testimony “that he was unaware that his friend had a gun or was planning to shoot it.” His guilty plea to assault admits the contrary, and under the circumstances I find that bare denial very difficult to believe. At the very least, we would need some explanation of a motive for Barton’s friend to shoot up the house of Barton’s ex-girlfriend if Barton himself had not asked him to do it. The Factual Background section of Barton’s brief contains none.

Putting aside Burton’s belated claim of innocence, does the aggravated assault conviction stop the clock as of the date he committed the offense, meaning that he does not meet the requirement of seven years of law-abiding residence after admission?

Justice Kavanaugh’s opinion for the Court first disposes of the argument that the clock did not stop until Barton was convicted of the offense, after the magic seventh anniversary, not when he committed it. The dissenters don’t seem to have much problem with that.

The dispute is whether commission of a §1182(a)(2) crime renders a legal permanent resident “inadmissible,” which is what triggers the clock-stopping provision, when he is not seeking admission but is already legally here. The dissent says “the Court fails to grapple with [this argument] meaningfully.” I think it does.

Justice Kavanaugh explains how, under the statute, inadmissibility is a status that one acquires immediately upon committing one of the listed offenses. “[A]s relevant here, §1182(a)(2) flatly says that a noncitizen such as Barton who commits a crime involving moral turpitude and is convicted of that offense ‘is inadmissible.’  §1182(a)(2)(A)(i). Full stop.” The most common consequence of this status, of course, is being denied admission at the port of entry, but it is not the only one. The opinion notes the relevance of inadmissibility in adjustment of status applications, for example.

There is another example not mentioned that I believe is important. One valuable privilege that green card holders have and most other aliens do not is the ability to leave the country for brief visits abroad and return without the hassles and uncertainty of applying for a visa again. An LPR who is convicted of a §1182(a)(2) offense loses that privilege, and it is a major loss for some people. Being legally present yet inadmissible to return means one must choose between never seeing family in the old country again or giving up U.S. residence and the opportunity that comes with it. That change occurs immediately and does not wait for one to actually leave and attempt to return.

Justice Sotomayor’s theory, and the Ninth Circuit’s, is that §1182(a)(2) only has relevance in the context of a person seeking admission. Therefore, the argument goes, an LPR not seeking admission cannot be rendered inadmissible. That theory does not hold water. As the opinion of the Court explains, the clock-stopping provision has some of the earmarks of a recidivist sentencing law. It makes a past conviction relevant when a new determination is to be made regarding disposition for a new offense. It is not unheard-of for such laws to adopt for convenience categories or lists of crimes originally adopted for another purpose. California’s Three Strikes Law, for example, adopted the definition of “serious felony” from an earlier law enacted to restrict plea bargaining.

Adoption of §1182(a)(2)’s offenses for a different context makes sense in light of the evident purpose of the provision. Section 1229b(a)(2) extends leniency to LPRs who have resided here for seven years, but then (d)(1) conditions that leniency on a law-abiding seven years of residency. Congress adopted non-commission of any §1182(a)(2) offense as shorthand for “law-abiding.”

If (d)(1) did not apply to LPRs, it would not make any sense for it to apply to the residency period in (a)(2), given that (a) only applies to LPRs to start with. Yet (d)(1) expressly does apply to all residency periods in the section.

So in the end, I believe that the Supreme Court majority and the Eleventh Circuit have correctly interpreted the statute. This interpretation fits the language and the purpose. The interpretation of the Supreme Court dissent and the Ninth Circuit strains to achieve a result the authors deem desirable. There is surely much room for policy disagreement in this area, but those arguments should be made to Congress.