Three (More) Points About Recent SCOTUS Cancellation Decision

Memo to The Nation magazine: Law, facts, and words all matter when it comes to immigration

By Andrew R. Arthur on April 29, 2020

On Sunday, I published a post on the Supreme Court's recent decision in Barton v. Barr. Briefly, the Supreme Court held that, for purposes of cancellation of removal for lawful permanent residents ("42A", akin to a waiver), aliens don't have to be seeking admission to be "inadmissible" to stop the clock on their accrual of the residence required for 42A when they commit certain crimes. My colleague John Miano has also offered an insightful response to an article in The Nation about that case. The Court's decision and that article underscore that — when it comes to the immigration debate — law, facts, and words all matter.

First, the law and the facts. The Nation's article (which appears to be reporting, not opinion) is captioned: "SCOTUS Just Found a Way to Inflict More Terror on Immigrants: A new decision written by Kavanaugh reaffirms the idea that the government can reach into a black or brown person's life — and destroy it — at any time". Miano identified the key passages from that piece, but here is a key takeaway from his post:

The Nation writes that "In 2016, 10 years after his last arrest, the government started deportation hearings against Barton based on the old possession convictions."

The Nation missed the obvious: Donald Trump was not president in 2016. It was the Obama administration that determined Barton's actions were worthy of deportation. Because this is an immigration case, the court documents are sealed so it is not known why the Obama administration decided to seek Barton's removal.

Okay, fine, you may say, but why was the case before the Supreme Court? According to The Nation:

Barton, who, again, owned a business, hadn't been arrested for a decade, and hadn't been back to Jamaica for 25 years, was a good candidate for [42A] cancellation.

So the Trump administration got creative (so creative that a group of former immigration judges filed a brief opposing the government's position). It dug all the way back to his 1996 conviction for aggravated assault. Now, both sides agreed that aggravated assault is not grounds for deportation (the fact that this country basically treats violence against women as a lesser offense than drug possession is an infuriating topic for another time). But aggravated assault is grounds to deny entry into the country in the first place. It makes sense that we have a lower threshold for crimes that can keep a person from coming into the country than we do for crimes that would kick a person out of the country. Not being allowed to go somewhere is a different thing entirely from being kicked out of your home.

There are some key points there that are wrong as they relate to the facts and the law.

First, the Trump administration did not get creative, Barton did. According to the petition for writ of certiorari he filed with the Supreme Court, his 42A application was denied and he was ordered deported on February 17, 2017, on more or less the exact same logic that the Court adopted last week. I guess that you could tie that order to the "Trump administration" (which had been in office for 28 days at the time that order was issued), but as the Supreme Court and Miano noted, Barton was placed into proceedings in September 2016 — in other words, during the Obama administration. Further, it appears from the immigration judge's decision (which was appended to that petition), that there had been significant briefing before she issued her February 2017 decision — which likely stretched back to the Obama administration.

In fact, the immigration judge based her legal determination on a September 2006 Board of Immigration Appeals (BIA) decision, Matter of Jurado-Delgado, which itself had (more or less) adopted the same logic that the Supreme Court would eventually follow in April 2020. The BIA specifically held:

An alien need not be charged and found inadmissible or removable on a ground specified in section 240A(d)(1)(B) of the Immigration and Nationality Act [INA] ... in order for the alleged criminal conduct to terminate the alien's continuous residence in this country.

That was the George W. Bush Department of Justice, not Donald Trump's. I will also note as an aside that the immigration judge in question (Njeri B. Maldonado) was hired by the Obama Justice Department. She denied Barton's 42A application.

Barton appealed that decision, and not surprisingly, the BIA affirmed the IJ's order (the BIA's opinion is also appended to Barton's petition to the Supreme Court) on June 12, 2017. In its decision, the BIA relied on its prior precedent in Matter of Jurado-Delgado in dismissing his appeal.

Barton then filed a petition for review of that decision to the U.S. Court of Appeals for the Eleventh Circuit, raising the exact same claims that he would eventually make to the Supreme Court. Specifically, the circuit court explained:

Barton now petitions for review of the Board's decision. He asserts, as he has all along, that as a lawful permanent resident he "plainly cannot be inadmissible as a result of any offense, as he is not seeking admission to the United States."

The circuit court held, in a unanimous opinion affirming the BIA, that "per the stop-time provision's plain language, ... a lawful-permanent-resident alien need not be seeking admission to the United States in order to be render[ed] ... inadmissible." Just like the Supreme Court did. That decision was authored by Kevin C. Newsom (a Trump appointee), but he was joined in that opinion by Judge Charles R. Wilson (a Clinton appointee), and Judge C. Roger Vinson, a U.S. district judge for the Northern District of Florida, who was sitting by designation (a Reagan appointee). Hardly a MAGA cabal.

Barton (not the government) then filed a petition for writ of certiorari with the Supreme Court.

Lest you think that the Eleventh Circuit was an outlier on the question of whether the stop-time rule applies where an alien who is not seeking admission is inadmissible for an offense, think again. The Fifth Circuit came to the same conclusion in a published decision in 2015, and the Third did, too, in an unpublished decision in 2011 (both predating the Trump administration).

The Second Circuit essentially reached the same conclusion in 2017, when it held that an alien with a 1999 marijuana conviction was "inadmissible" for purposes of the stop-time rule when he committed the offense, despite the fact that he did not seek (re)admission until years later:

To state it another way: as long as a qualifying offense later does render the non-citizen inadmissible under [section 212(a)(2) of the INA], the date of the commission of the offense governs the computation of a lawful permanent resident's continuous residency in the United States. Accordingly, even if Gomez is correct that he was not rendered inadmissible until 2015 [when he applied for readmission] — a position that we find dubious — his commission of the 1999 offense would still be the operative date for purposes of calculating his period of residency in the United States.

Notably, the Supreme Court declined to review that decision.

Only the Ninth Circuit decided the question the other way (in August 2018 — during the Trump administration), and in fact, Barton argued that this "circuit-split" was a reason why the Supreme Court should take the case on review. This is by no means a situation where "the Trump administration got creative" — to the contrary, Barton was seeking to reverse the law in the actual circuit that decided his case. And failed.

Second, as for The Nation's contention that "both sides agreed that aggravated assault is not grounds for deportation (the fact that this country basically treats violence against women as a lesser offense than drug possession is an infuriating topic for another time)", the parenthetical is not quite true. The immigration judge found that aggravated assault, under which Barton was convicted, is a crime involving moral turpitude (CIMT), but Barton argued (successfully) that his 1996 convictions — for three counts of aggravated assault, and one count each of first-degree criminal damage to property — arose out of a single scheme of criminal misconduct, and therefore he was not deportable under section 237(a)(2)(A)(ii) of the INA.

Aggravated assault (depending on the wording of the statute) is a CIMT, and if the provision under which that conviction is entered imposes a sentence of a year of more, and the crime was committed within five years of the alien's admission, the alien is deportable under section 237(a)(2)(A)(i) of the INA. If the alien commits such CIMTs, the alien is also inadmissible under section 212(a)(2)(A)(i) of the INA, regardless of whether they arose out of a single scheme or not (which prompted the question before the Supreme Court).

The specific state aggravated assault statute in question is not listed (curiously), but there is nothing that suggests the gender of the victim is an element. That said, crimes of domestic violence are grounds for deportability under section 237(a)(2)(E) of the INA, as are violations of protection orders, regardless of the gender of the victim. And a drug conviction for possession of 30 grams or less of marijuana is not a basis for deportability. If The Nation wants to make any or all of Barton's convictions grounds for deportation that otherwise aren't, I agree wholeheartedly. But they should get their law straight.

As an aside, The Nation adds this for good measure:

In essence, the conservatives decided that they could deport a man in his 40s based on a crime he committed in his late teens, even though they could not have deported him in his late teens when he committed that crime. And the only reason deportation was even on the table was because he's got a 10-year-old drug conviction, which is never the kind of thing Chadwald Karenström ever gets deported back to Sweden for.

Note that the periodical never provides any support for this proposition. But if "Karenström" had the same immigration and criminal history as Barton, ICE is going to come and get Karenström, the same way that they went to get Barton, and he is going back to Sweden (unless he has an asylum claim, which he likely doesn't).

Want proof? Take Secure Communities, one method ICE uses to find aliens who have committed state and local criminal offenses that would render them removable. The best part about Secure Communities is that it is utterly indifferent as to an alien's nationality, sex, race, religion, or creed — just as the INA is. Put another way, there is no carve-out in Secure Communities, the INA, or ICE enforcement for Swedes or any other foreign nationals.

Or 287(g), wherein ICE partners with state and local law-enforcement to identify removable criminal aliens. No carve-outs there, either, and I seriously doubt that the cops in question are going to be choosy about who they remove from their communities — criminals are criminals. They run the same checks on everyone who comes in (citizens and aliens). If they find a removable alien, the culprit is going to end up in the hands of ICE.

I saw plenty of different nationalities in my courtroom, and they all got the same treatment — as they would under the rule in Barton. If The Nation is going to make snide remarks about law enforcement, they might as well have some facts to back them up.

Returning to my main point, however, finally, there are the words. Keep in mind that all of the litigation in Barton hung on one word in the stop-time rule: "inadmissible". As I stated in my earlier post, the Supreme Court held:

Inadmissibility is a status that can result from an alien's commission of certain offenses listed in section 212(a)(2) of the INA for purposes of the stop-time rule, even if that alien has already been admitted and is not seeking admission.

Words plainly matter. Given that fact, why did Justice Kavanaugh (the winking villain in The Nation's article) use the wrong word throughout his decision: "noncitizen"? By my count, he uses the word 69 times in his opinion (it appears 170 times in the synopsis, opinion, and dissent). The word "alien" appears 28 times in the decision, but only when quoting statute, with one exception.

Specifically, the majority states, in footnote 2: "This opinion uses the term 'noncitizen' as equivalent to the statutory term 'alien.'", but never explains why. Why do I care?

First, Barton, as noted, is strictly a case involving statutory interpretation — that is, the words of the INA. The Court should use the word Congress used in the INA. "Alien" is not a pejorative, and when I travel abroad, I have no problem understanding that I am the alien — and therefore subject to different rules than the citizens of that country.

Second, "noncitizen" is wrong, as a matter of law. As I have previously explained, all citizens are nationals of the United States, but not all nationals are citizens. This was a point explained by none other than Justice Ruth Bader Ginsburg, who stated:

Nationality and citizenship are not entirely synonymous; one can be a national of the United States and yet not a citizen. [Section 101(a)(22) of the INA]. The distinction has little practical impact today, however, for the only remaining noncitizen nationals are residents of American Samoa and Swains Island.

It may have little impact to her, but it does to residents of American Samoa and Swains Island, who under Barton are putatively ineligible for 42A cancellation if they are criminals, but who as a matter of law are not removable at all. With due respect to the Supreme Court — if you are interpreting a statute, use the words the statute uses, not ones that are wrong as a matter of law.

Immigration is a hot-button topic, and has been throughout my almost three decades in the field. That said, at the end of the day, law, facts, and words are what really matter. Each should be stated correctly if we are ever to reach agreement on the issue as a people.