Grammar at Issue in SCOTUS Argument on 42A Cancellation

'Renders ... inadmissible' and the rotten fish

By Andrew R. Arthur on November 8, 2019

On November 4, 2019, the Supreme Court heard arguments in the case of Barton v. Barr. At issue in that case is whether a lawful permanent resident (LPR) is eligible for cancellation of removal under section 240A(a) of the Immigration and Nationality Act (INA) (known as "42A cancellation" because of the form number for the application) despite his conviction for a crime involving moral turpitude (CIMT) committed within seven years of his entry. The case hinges on linguistics, as the interesting oral argument reveals.

Quite a bit of background is in order. The petitioner is a native and citizen of Jamaica who entered the United States on a tourist visa in May 1989. He adjusted his status to LPR three years later. According to the government's brief, he was driving past his ex-girlfriend's house on January 23, 1996, when a passenger in his car fired shots into the house, which was occupied at the time. He was convicted of "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." In 2007 and 2008, he was also "convicted of various controlled-substance offenses," again under Georgia law.

In 2016, the Department of Homeland Security (DHS) placed respondent into removal proceedings. He was found to be removable under section 237(a)(2)(B)(i) of the INA as an alien convicted of violating a law relating to a controlled substance, and section 237(a)(2)(C) of the INA as an alien convicted of a firearms offense.

Barton applied for 42A cancellation as relief from removal. DHS opposed that application, arguing that respondent was ineligible for relief because his conviction for aggravated assault was a CIMT that, as noted, had been committed within seven years of his entry to the United States.

To be granted cancellation of removal under section 240A(a) of the INA, an alien must have been an LPR for five years, have resided in the United States continually for not less than seven years after any admission, and not have been convicted of an aggravated felony. A grant of 42A cancellation essentially waives any ground of inadmissibility or deportability other than on aggravated felony grounds.

The issue in Barton is whether the petitioner was subject to the open "stop-time rule" in section 240A(d)(1) of the INA. Under that rule:

[A]ny period of continuous residence or continuous physical presence in United States [for purposes of 42A cancellation] shall be deemed to end. ... (B) when the alien has committed an offense referred to in section 212(a)(2) [of the INA] that renders the alien inadmissible to the United States under section 212(a)(2) or removable from United States under section 237(a)(2) or 237(a)(4), whichever is earliest.

More precisely, the question is whether the petitioner, an LPR, could be "render[ed] inadmissible" by his commission of a CIMT.

Under section 212(a)(2)(A)(i) of the INA, an alien who has committed a CIMT is inadmissible to the United States. Under section 237(a)(2)(A)(i)(I) of the INA, however, an admitted alien is only removable if he or she was convicted of a CIMT that was committed within five years of the alien's date of admission, with only an inapplicable exception. Barton's CIMT was committed more than five years after his admission on a tourist visa in May 1989, and he argues that the stop-time rule would only apply in his case "if the offense actually trigger[ed] an adjudication of inadmissibility during the alien's removal proceeding," which it did not.

The government, on the other hand, argues that "[i]t is immaterial that petitioner was not seeking admission to the United States when he was placed in removal proceedings." Among other points, the government asserts that (1) "the stop-time rule is not triggered by the commission of an offense that results in the denial of admission; rather, it is triggered by the commission of an offense that 'renders the alien inadmissible,'" and that (2) "inadmissibility is a status, and neither the stop-time rule nor Section [212(a)(2) of the INA] requires that an alien be seeking admission to acquire that status."

As Quartz reported, the oral argument "was the ideal hearing for a grammar nerd, perhaps," quoting from the justices' questioning of the parties:

"This statute is as obscure as any I've seen," [J]ustice Stephen Breyer remarked. "It wasn't a genius who drafted this." [NB: I know the drafters, and they are fairly smart].


Justice Elena Kagan asked the attorney for the government, "Could you make sense of the verb tenses for me?" As he urged her to read the rule in present tense, she resisted, saying it could only be read in the subjective.

Most interesting was Justice Samuel Alito's response to statements made by Justice Breyer:

Barton's counsel counters that his client can't be rendered inadmissible when he's already here and has been since he was a kid. He says the government's reading of the immigration law is too expansive.

His first offense, he contends, did not stop the clock because no immigration judge adjudicated him inadmissible. The government is thus relying on a counterfactual to prove his ineligibility for relief, he says, claiming that because he could have been inadmissible he is forever in a state of inadmissibility though he's not even seeking to be admitted and was never found inadmissible by an immigration judge.

Breyer seemed to see Barton's point, and restated it for the government's counsel, "He's been admitted. How could he be inadmissible? They admitted him. Ahh, you mean he would have been inadmissible had he not been admitted."


But [J]justice Samuel Alito seemed more inclined to take the government's perspective on status. He asked:

Can I take you back to Justice Breyer's intriguing question about the meaning of inadmissibility? The Eleventh Circuit had some very colorful examples about status and words that end in "a-b-l-e" or "i-b-l-e," and one of them had to do with rotten fish. So if a fish rots and it is inedible, they say, well, it was inedible before the person ate it. But under Justice Breyer's interpretation because of admissibility, suppose this person eats the fish and then goes to the emergency room to have his stomach pumped, would the doctor say, well, the fish wasn't actually inedible because he ate it?"

The courtroom erupted in laughter, as the government's counsel responded, "No, no, you wouldn't, because the fish has the status of being inedible."

In this context, I would agree with the government and Justice Alito. An alien does not need to be seeking admission to be "rendered inadmissible" by some act or action. Had Barton sought admission, he would have been inadmissible because of his conviction for a CIMT. And that was how I applied the stop-time rule, and also how the immigration judge, Board of Immigration Appeals (BIA), and Court of Appeals for the Eleventh Circuit viewed the case below.

As the government noted in its brief:

The court of appeals rejected petitioner's contention that, because he was not seeking admission to the United States, he could not be "render[ed] ... inadmissible" for purposes of the stop-time rule. ... The court reasoned that, as a matter of ordinary meaning, "the word 'render' can indicate the conferral of a particular condition, or 'state.'" ... The court found a "'state'-based understanding" to make "particularly good sense here, where the word that follows 'renders' is 'inadmissible.'" ... "By their very nature," the court explained, " 'able' and 'ible' words connote a person's or thing's character, quality, or status — which ... exists independent of any particular facts on the ground." ... The court gave a number of examples: "A terminal illness renders its victim untreatable regardless of whether she is actively seeking treatment; rot renders a piece of fish inedible regardless of whether someone is trying to eat it; sheer weight renders a car immovable regardless of whether someone is trying to move it." ... "So too here," the court concluded, "an alien can be rendered inadmissible regardless of whether he is actually seeking admission" at a particular time.

The rotten fish, again.

With oral arguments completed, the Court should issue its decision in the next few months. Consider, in the interim, that two words in the INA resulted in a hearing, three levels of appellate review, and (by my count) 184 pages of briefing by the parties, not counting five amicus briefs (one filed by "former immigration judges", in favor of the petitioner, that runs 38 pages).