Stop-time and Barton, a No Nguyen for the 9th Circuit

Sunday, June 13th, 2021
By: Jonathan MontagJ.D.

I remember while in law school reading a contracts case penned by Robert Jackson or Learned Hand some other famous guy (I’m sure it wasn’t Oliver Wendell Holmes Jr., as he was dead by the time it was written and I understood what the case said) in 1944 or so. I thought to myself how odd that the world was consumed by war, millions were dying all over, and the courts still engage in figuring out who has to pay when a builder used the wrong nails (or something).

Alas, the wheels of justice turn during good times and bad times. In April 2020, as the world was entering the COVID nightmare and the executive branch was denying the existence of the plague while meanwhile dismantling justice everywhere and in every way, the Supreme Court was parsing a 24 year old immigration statute, as well it should.

On April 23, 2020, the Supreme Court published a decision in Barton v. Barr. The case addressed a portion of a forgiveness statute for permanent residents who committed removable offenses, Cancellation of Removal for Certain Permanent Residents (Cancellation).

The portion is the stop-time provision of Cancellation. A permanent resident can apply for Cancellation, if, among other things, they been have lived continuously in the U.S. for at least seven years after having been legally admitted. The seven year count starts at the legal admission. A stop-time provision determines when the seven year count stops. The stop-time provision is at INA § 240A(d), which states:

For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end

(A) except in the case of an alien who applies for cancellation of removal under subsection (b)(2), when the alien is served a notice to appear under INA § 239(a)., 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 INA § 237(a)(2) or INA § 237(a)(4), whichever is earliest.

Section A, was more or less straight forward, time stopping when a notice to appear was served (though there was litigation about what “served” means and now, huge issues about what a “notice to appear” is, as the Supreme Court has ruled in Pereira v. Sessions in 2018 and Niz-Chavez v. Garland just a month and a half ago.

Section B, was the more complicated section. Commission of certain offenses stopped time. Which ones? What brought the section to the Supreme Court’s attention is that the statute is convoluted and can be read in different ways. Here’s one way – the offense has to be one mentioned in INA § 212(a)(2) – criminal and related grounds of inadmissibility – and the applicant must be subject to inadmissibility for it as an arriving alien (INA § 212(a)(2)) or deportable for it as an applicant admitted into the United States (INA § 237(a)(2) or INA § 237(a)(4)). As the Ninth Circuit Court of Appeals put it in its decision in Nguyen v. Sessions, addressing the case of an applicant for Cancellation admitted into the United States who admitted to using cocaine years earlier (the admission of cocaine use would render someone inadmissible under INA § 212(a)(2) but not deportable under INA § 237(a)(2)) “[b]ecause Nguyen was not rendered inadmissible by his admitted use of cocaine in 2005, he did not trigger the stop-time rule and is eligible to apply for cancellation of removal.”

The other way to read it is that if the act the applicant committed could have made him inadmissible had he been applying for admission, then he is ineligible for Cancellation. Conceptually, this reading takes the position that “committed an offense …that renders the alien inadmissible to the United States under INA § 212(a)(2) or removable from the United States under INA § 237(a)(2) or INA § 237(a)(4)” is descriptive of the offense and not of the applicant.

Or as the inestimable Justice Brett M. Kavanaugh, author of the opinion, put it, “[l]awfully admitted noncitizens who are, for example, convicted of §212(a)(2) crimes are ‘inadmissible’ and in turn may suffer certain immigration consequences, even though those lawfully admitted noncitizens cannot necessarily be removed solely because of those §212(a)(2) offenses.”

All this may seem somewhat arcane, but it has huge consequences. The case of Mr. Nguyen is as illustrative as any hypothetical I could concoct. Mr. Nguyen lawfully entered the United States in 2000. While the case is unclear about the  facts, he apparently committed some deportable crimes after he had been in the United States for more than seven years. (An observation: When a court is going to side with a malfeasant, it skips over the malfeasance. When it is going to side against the malfeasant, the details of the crime are detailed minutely. Read death penalty decisions to confirm this yourself.) Thus, time stopped after he had accrued the required seven years of residence.

At his trial, Mr Nguyen admitted to using cocaine in 2005. The Nguyen court held that because Mr. Nguyen was admitted to the United States, he was not subject to inadmissibility grounds of removal and an admission to drug use, which could render a person inadmissible but not deportable (deportability requires a conviction, while inadmissibility does not. Note that INA § 212(a)(2) starts off at the very beginning stating, “…any alien convicted of, or who admits having committed or who admits committing acts which constitute the essential elements of….”)), would not stop time. However, applying the Barton/Kavanaugh reading of the stop-time provision, since an admission to cocaine uses would render a person inadmissible, it stops time and Mr. Nguyen would not have accrued the necessary seven years of residence.

As for actual immigration court practice, this is huge. if your client is seeking Cancellation based on deportable offenses that occurred after they accrued seven years of residence after a legal admission, any conduct that would render an applicant for admission inadmissible – which includes admissions to inadmissible conduct – would bar them from Cancellation relief. In working with a client, you need to find out about all conduct the client may have engaged in and ascertain whether they properly can and should admit to a crime? In the case of Mr. Nguyen, does he know the essential elements of the crime of cocaine possession? How does he know he was using cocaine and not something else? Did he run the powder he used through a lab test to ascertain what it was? Does he understand that a flippant admission will result in banishment from the United States?

A basic fact of life is that we don’t choose the facts in our cases. If your client remembers committing an act that would render an arriving alien permanent resident inadmissible within seven years of admission in any legal status, they are toast and you’re and they’re stuck with that. If they have no factual basis to make such an admission and just have confessional spirits (If you ever asked a committed 12-stepper about whether they are rehabilitated drug users, you will know what I mean), then unless they want to be separated from their homes and families for a long time and in most cases forever, you should advise them of the law so they don’t walk themselves off a cliff. Posted June 13, 2021.


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