Opinion analysis: Divided court upholds restrictive reading of immigration statute, limiting relief to noncitizens facing removal
on Apr 24, 2020 at 9:12 am
Yesterday, the Supreme Court issued a 5-4 decision in Barton v. Barr, upholding a restrictive reading of a provision of the Immigration and Nationality Act that offers relief to noncitizens facing removal proceedings. In their respective opinions, both the majority and the dissent advance interpretations of the statutory language, invoke comparable clauses in the INA and offer views regarding the broader structure and aims of the immigration code. Yet for those anticipating detailed engagement with the arguments advanced by the parties, the majority opinion will likely disappoint. Although Barton is, at its core, a case about statutory interpretation, underlying the opinions are competing views regarding the scope of protections that should be afforded to noncitizens.
As described in the argument preview, Barton focuses on a portion of the INA that allows immigration judges to cancel the removal of noncitizens when (1) specific eligibility criteria are met, and (2) the judge chooses to favorably exercise discretion, after weighing both positive and negative equities. Under 8 U.S.C. § 1229b(a)(2), lawful permanent residents seeking cancellation of removal, like Andre Martello Barton, must prove, among other things, that they have “resided in the United States continuously for 7 years after having been admitted in any status[.]” A separate portion of the statute details the circumstances that stop the seven-year clock, thereby foreclosing the opportunity to seek this form of relief. Known as the stop-time rule, this part of the statute notes that the seven-year period:
Shall be deemed to end … 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, whichever is earliest.
As a lawful permanent resident who had already been admitted, Barton was facing removal from the United States based on criminal conduct that triggered the deportability grounds under Section 1227(a)(2). Yet in an attempt to invoke the stop-time rule, the Department of Homeland Security relied on a separate criminal charge that implicated the inadmissibility grounds under Section 1182(a)(2). This choice framed the central question in the Barton litigation: whether a lawful permanent resident who is not seeking admission can be rendered “inadmissible” for the purpose of the stop-time rule.
Briefs submitted by the parties and amici were rife with complex arguments rooted in statutory interpretation. Yet the majority opinion, authored by Justice Brett Kavanaugh, engages with only a few of these arguments, and downplays the complexity by stating that “the analysis here is straightforward.” At its core, the majority opinion rejects the notion that the offense triggering the stop-time rule must also lead to the initiation of removal proceedings. Rather, according to the majority, inadmissibility is a type of transcendent “status” that attaches to the noncitizen as soon as they have committed certain crimes listed in the grounds of inadmissibility. In support of this view, the majority invokes other INA provisions – including those relating to adjustment of status and temporary protected status – that screen for inadmissibility in contexts in which the noncitizen is not formally seeking admission. The majority dismisses the notion that these processes could be seen as types of “constructive admission,” calling the descriptor a “ginned up label.”
Kavanaugh concedes that his interpretation makes superfluous an entire clause of the stop-time rule. According to the majority’s reading, “an offense referred to in section 1182(a)(2)” renders lawfully admitted permanent residents, like Barton, “inadmissible to the United States under section 1182(a)(2)” and therefore ineligible for cancellation of removal. Yet that interpretation overlooks the phrase “or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title[.]” Instead of engaging with alternative readings, the majority simply offers that “redundancies are common in statutory drafting.”
By contrast, the dissent authored by Justice Sonia Sotomayor emphasizes the core distinction between noncitizens seeking admission and those who are lawfully admitted – that is, between inadmissibility and deportability. According to the dissent, a noncitizen who has already been admitted for permanent residence (and is therefore subject to the grounds of deportability), cannot be deemed “inadmissible” for purposes of the stop-time rule. An offense that cannot serve as the basis for removal simply cannot render the noncitizen inadmissible.
The dissent also examines other INA provisions that invoke inadmissibility outside of the context of seeking admission. Sotomayor asserts that the processes described in these provisions, including adjustment of status, are indeed a “proxy for admission,” and therefore would logically screen for inadmissibility. As for other examples cited by the majority, the dissent contends that their structure and purpose distinguish them from the stop-time rule. Sotomayor offers the INA’s mandatory detention provision as the most appropriate analog. She maintains that the stop-time rule, just like the mandatory detention provision, should be read to refer to a removability determination that can actually be made in the case.
Sotomayor also sharply criticizes the majority’s seeming disregard for the canon against surplusage. The dissent offers an alternate reading that gives effect to all of the clauses in the stop-time rule: The offense triggering the rule must render the noncitizen either inadmissible or deportable in the removal proceeding, and it must be one “referred to” in Section 1182(a)(2).
Beyond the dueling interpretive arguments, the language used in the respective opinions suggests fundamentally different views about noncitizens with criminal convictions and the breadth of protections they should be afforded. The majority anchors its restrictive interpretation in the view that federal immigration law “cabins tightly eligibility for cancellation of removal.” Kavanaugh analogizes the cancellation-of-removal provision to criminal recidivist laws, which permit consideration of past criminal conduct. Along these lines, the majority offers details regarding Barton’s criminal history, perhaps signaling their view that he is unworthy of relief. By contrast, Sotomayor describes Barton’s educational achievements, employment record and support of his family, and underscores the strong protections that immigration laws have historically afforded to lawful permanent residents. In this regard, Barton is similar to many of the Supreme Court’s recent immigration law rulings, in which foundational views have inevitably guided the justices’ interpretive choices.