Meanwhile, at the Supreme Court….

Sunday, August 23rd, 2020
By: Jonathan MontagJ.D.

In has been four months since I last blogged. Not because there is nothing going on, but because there is so much going on. Back in the not so halcyon days of Spring 2020, California, and much of the rational part of the United States was in lock down because of the pandemic that was killing people. A whopping 22,000 had died by the last time I blogged. We watched New York City struggle and hoped to avoid that carnage through locking down and acting safely. We figured two or three months of strict lock down and we would reduce the danger and could get back to a modified normal. The government asked us to freeze in place and gave the tens of millions who lost their jobs some extra money to get them through the tough weeks (not months and months and months and months) and so we could pick up more or less where we left off. In the meantime, we could watch Tiger King and share a national time-out. Little did we realize that the types of geniuses portrayed in Tiger King actually run the country. Who would have guessed that President Joe Exotic would call the virus a fraud, declare safety measures an affront to our freedoms, the reported cases and deaths fake news, insist there were magical curative elixirs and injections, and magical treatments, and there would be an imminent fairy-tale ending? That ended any hope we’d get out of this as Italy, Spain, France, China, South Korea, Vietnam, Taiwan, Australia, New Zealand… did. Now we are in head-to-head competition with Brazil, Mexico, India, Turkmenistan, and Nicaragua as to who handled it worst. As for the wealthier world (Are we really the wealthier world when vast amounts of our wealth are in the hands of a few who make sure they don’t have to share?), there is no competition. Our American exceptionalism shines from that exceptionalism hill – we are dead last in outcomes. We can’t even visit more successful countries because our passports don’t work any more.

In the middle of all this carnage and insanity, it was hard to sit and write about important new immigration developments, which though of great significance, don’t result in 175,000 deaths. But, alas, we all have our callings, so here we go.

The case from the Supreme Court I would like to discuss this week is Barton v. Barr, decided on April 23, 2020.

In Barton, the Supreme Court was considering the stop-time issue which deals with eligibility for relief (forgiveness) from removal for illegal activity by permanent residents. The relief, Cancellation of Removal for Certain Permanent Residents, found at INA § 240A(a), requires that to be eligible for forgiveness, a person must be a permanent resident for five years, not have been convicted of a certain category of crimes referred to as aggravated felonies (defined at INA § 101(a)(43), and are crimes that are not necessarily “felonies” or “aggravated”), and the person must have resided in the United States continuously for seven years after having been admitted in any status. In crafting the law, Congress did not want people to accrue time to meet this residence requirement while in removal proceedings, which can drag on, or after committing some crimes. So they created stop-time rules to stop the accrual of time to meet the seven-year residence requirement. The stop-time rule is defined at INA § 240A(d), and states:

For purposes of this section, any period of continuous residence … shall be deemed to end (A) when the alien is served a notice to appear or (B) when the alien has committed an offense referred to in INA § 212(a)(2) that renders the alien inadmissible to the United States under INA § 212(a)(2) or removable from the United States under section INA §237(a)(2)…, whichever is earliest.

The stop-time provision requires two things – that the illegal act for which the government is trying to remove someone be a grounds of inadmissibility and that the person is rendered deportable or inadmissible for it.

To help illustrate, let’s consider a person, Lucky. Lucky moved to the United States and became a permanent resident in 2010. In 2018 he was convicted of being under the influence of cocaine that same year, 2018. While questioned by police, he explained that he used cocaine just that one evening of his arrest because he was working a night shift and did not sleep during the day before the shift started. He stated that he does not ordinarily use drugs, recalling that the last time he used drugs before 2018 was when he smoked marijuana once or twice in college in 2012, six years earlier. After his conviction, he was placed in removal proceedings commenced by the service of a Notice to Appear – the charging document initiating removal proceedings.

Another thing to understand is that there are two lists of removability grounds. One is for grounds of inadmissibility – reasons to keep a person out of the United States – found at INA § 212(a)(2). Let’s say a person is applying for permanent residence at a U.S. consulate abroad. The consular officer cannot issue a visa to someone subject to grounds of inadmissibility. The same grounds also apply to a person applying for a green card inside the United States, referred to as adjusting status.

The other list is for people in the United States after being admitted. They are subject to grounds of deportability, found at INA § 237(a)(2). While mostly the same, there are differences. Significant in our hypothetical is that admitting to a drug offense is a ground of inadmissibility, but not a ground of deportability. To be deportable, a person needs to be convicted of a drug offense.

Under the interpretation of the law before the Barton decision, this would have been the impact of Lucky’s criminal activities:

1. He would be deportable for the cocaine possession conviction in 2018. A criminal conviction for being under the influence of cocaine is both a grounds of inadmissibility and a ground of deportability. As it was more than seven years after he got his green card that he was convicted and placed in removal proceedings, the conviction did make him ineligible for Cancellation of Removal because he both committed the crime and was placed in removal proceedings more than seven years after he got his green card and seven years is all he needs for eligibility for Cancellation of Removal. This is so because the first criterion states that the stop-time rule kicks in when Lucky was served with a notice to appear or committed an offense referred to in INA § 212(a)(2) – both of which occurred more than seven years after he got his green card.

2. The second criterion is the new and significant part of Barton. Before Barton, the second criterion – that renders the alien inadmissible to the United States under INA § 212(a)(2) or removable from the United States under section INA § 237(a)(2) – meant that Lucky had to actually be subject to inadmissibility or deportability for his actions or the section did not apply. While there are no other convictions to mess Lucky up except the 2018 cocaine possession conviction, there is still the matter of his admission to using marijuana in 2012. Because he was arrested inside the United States and not applying for admission, he is subject to the deportability grounds of removal, not inadmissibilty grounds. Thus he is not inadmissible for his admitting to drug use in 2012 and that section of the second criterion would not affect him. All would be well for Lucky (except that he is in removal proceedings and subject to mandatory detention) and he could apply for Cancellation of Removal relief. Before Barton.

The importance of Barton is that the Supreme Court decided that the second criterion, “inadmissible to the United States under INA § 212(a)(2) or removable from the United States under section INA § 237(a)(2)” does not apply depending on Lucky’s specific situation, but is descriptive of the type of offense that would implicate the stop-time rule. If Lucky committed an offense that could render a person inadmissible – even though it would not render Lucky inadmissible – it is a stop-time event. Thus, when Lucky admitted in 2018 that he used marijuana in 2012, he admitted to a ground of inadmissibility (not deportability because there was no conviction). Even though he is not deportable for it or inadmissible for it (because he is a permanent resident and not applying for admission), he would still be subject to the stop-time rule because being inadmissible is one of the descriptors for the disqualifying conduct. He had accrued only two years of residence since he first entered the United States and became a permanent resident when he did something that could render someone inadmissible. Thus Lucky cannot ward of deportation, not because of his 2018 conviction, but because of his admission to a drug crime in 2012.

So, assume you have the job of representing the government in trying to deport people. You are facing off against a permanent resident of more than five years who has a criminal conviction seven years after a lawful admission, and is thus is eligible for Cancellation of Removal. At his hearing, on cross examination, you go fishing. You ask, have you ever used drugs, ever? The non-citizen recalls a time he took a friend’s vicodin or the time he smoked marijuana in the distant past. He just admitted to drug offenses. He just admitted to drug offenses that are grounds of inadmissibility. Or he remembers stealing a chocolate bar while in high school and a time he stole a Snapple in college. He just admitted to the inadmissibility ground for two crimes of moral turpitude, which would render him inadmissible, though not deportable. Like with drug offenses, for crimes of moral turpitude, admissions can render a person inadmissible, but only convictions can render a person deportable.  Boom, he is ineligible for Cancellation of Removal relief and cannot ward of removal. That is the result of Barton. The reward for complete candor about minor actions long in the past is removal and a plane trip home.

Now back to the Tiger King and his very strong V-shaped economic recovery; a V like no one has ever seen. Posted August 23, 2020.


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