Andre Martello Barton v. U.S. Attorney General
Opinion
The federal immigration laws give the Attorney General the discretion to cancel the removal of an otherwise removable lawful permanent resident who (among other conditions) "has resided in the United States continuously for 7 years after having been admitted in any status." 8 U.S.C. § 1229b(a)(2). Importantly for present purposes, though, the continuous-residence requirement is subject to the so-called "stop-time rule." The provision that embodies that rule-at issue here-states that any period of continuous residence terminates when the alien "commit[s] 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." Id . § 1229b(d)(1) (emphasis added).
The question before us is whether a lawful-permanent-resident alien who has already been admitted to the United States-and who isn't currently seeking admission or readmission-can, for stop-time purposes, be "render[ed] ... inadmissible" by virtue of a qualifying criminal conviction. Other circuits have divided over the answer. For slightly different reasons, the Second and Fifth Circuits have both held that a lawful permanent resident needn't apply for admission to be "render[ed] ... inadmissible" under the stop-time rule (as has the Third Circuit, albeit in an unpublished opinion).
See
Heredia v. Sessions
,
For the reasons that follow, we agree with the Second, Third, and Fifth Circuits, and disagree with the Ninth.
*1296 I
A
Andre Martello Barton is a native and citizen of Jamaica. Barton was initially admitted to the United States on May 27, 1989 as a B-2 visitor for pleasure; approximately three years later, he successfully adjusted his status to lawful permanent resident. Since his admission, Barton has run afoul of the law on several occasions. Initially, on January 23, 1996-for reasons that will become clear, the dates matter-Barton was arrested and charged with three counts of aggravated assault and one count each of first-degree criminal damage to property and possession of a firearm during the commission of a felony. He was convicted of all three offenses in July 1996. Then, a little more than a decade later-first in 2007 and then again in 2008-Barton was charged with and convicted of violating the Georgia Controlled Substances Act. (For present purposes, only Barton's 1996 crimes are relevant to determining whether he is eligible for cancellation of removal. Barton's 2007 and 2008 offenses occurred more than seven years after his admission to the United States-which, as we will explain, is the pertinent timeframe for establishing continuous residence under the cancellation statute.)
The Department of Homeland Security subsequently served Barton with a notice to appear, charging him as removable on several grounds: (1) under
B
As promised, Barton subsequently filed an application for cancellation of removal under 8 U.S.C. § 1229b(a), which, as already explained, allows the Attorney General to cancel the removal of an otherwise removable lawful-permanent-resident alien if-in addition to other requirements not relevant here-the alien "has resided in the United States continuously for 7 years after having been admitted in any status." 8 U.S.C. § 1229b(a)(2). Importantly, though-as also explained-the continuous-residence requirement is subject to the "stop-time rule," which terminates the accrual of continuous residence when the alien commits a crime that (1) is listed in
In his cancellation application, Barton acknowledged his prior criminal convictions and included as exhibits records that, as relevant here, showed that he had committed the crimes that resulted in his convictions for aggravated assault, criminal damage to property, and unlawful gun possession on January 23, 1996. The government moved to pretermit Barton's application, arguing that Barton hadn't accrued the required seven years of continuous *1297 residence after his May 27, 1989 admission because, under the stop-time rule, his continuous-residence period ended on January 23, 1996.
In response, Barton contended that his 1996 crimes didn't trigger the stop-time rule. As to § 1229b(d)(1) 's "removable" prong, Barton said that his 1996 offenses didn't qualify because they arose from a single scheme of misconduct constituting one crime involving moral turpitude committed outside his first five years in the United States, whereas the cross-referenced § 1227(a)(2) establishes removability, as relevant here, only for (i) a single crime involving moral turpitude committed within five years of an alien's admission or (ii) multiple crimes involving moral turpitude not arising out of a single scheme. The government didn't press-and has since abandoned-the argument that Barton's 1996 crimes rendered him "removable" for stop-time purposes. Instead, it insisted that Barton's 1996 offenses-even if considered as a single crime involving moral turpitude occurring outside the five-year timeframe-rendered Barton "inadmissible" under § 1182(a)(2), which unlike removability under § 1227(a)(2) isn't limited by a single-scheme requirement. Barton replied-thus teeing up the issue before us-that as an already-admitted lawful permanent resident not seeking admission (or readmission) to the United States, he could not as a matter of law be "render[ed] ... inadmissible" within the meaning of § 1229b(d).
The immigration judge ruled in the government's favor, concluding that Barton's 1996 offenses "render[ed]" him "inadmissible" under § 1182(a)(2), thereby triggering § 1229b(d)(1) 's stop-time rule, thereby prematurely ending his period of continuous residence in the United States, thereby disqualifying him for cancellation of removal.
C
Barton sought review of the IJ's order in the Board of Immigration Appeals, reiterating his argument that a lawful-permanent-resident alien not seeking admission to the United States can't be "render[ed] inadmissible" under § 1182(a)(2) for stop-time purposes. In a non-precedential single-member decision, the Board agreed with the IJ, concluding that Barton's 1996 offenses triggered the stop-time rule and thus forestalled his accrual of the requisite seven years of continuous residence. Citing its earlier decision in
Matter of Jurado-Delgado
,
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." Br. of Petitioner at 8.
II
Under the principle announced in
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
,
The threshold question before us, therefore-at
Chevron
step one, so to speak-is whether the usual rules of statutory interpretation provide a clear answer to the following question: Can a lawful-permanent-resident alien who is not presently seeking admission to the United States nonetheless be "render[ed] ... inadmissible" within the meaning of 8 U.S.C. § 1229b(d)(1) ? Although it is undoubtedly true that "the concept of inadmissibility is generally married to situations in which an alien is actually seeking admission to the United States,"
Calix v. Lynch
,
A
Any application of the "traditional tools of statutory construction," of course, must begin "with the statutory text, and proceed from the understanding that unless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning."
Sebelius v. Cloer
,
[A]ny period of continuous residence ... in the United States 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.
8 U.S.C. § 1229b(d)(1).
Because the parties here agree that Barton is not ineligible for cancellation of removal on account of having committed an offense that rendered him "removable" under § 1227(a)(2) or § 1227(a)(4), the sole question before us is whether his 1996 convictions rendered him "inadmissible" under § 1182(a)(2). Barton's position is simply stated: He says that he "plainly cannot be inadmissible as a result of any offense, as he is not seeking admission to the United States." Br. of Petitioner at 8 (emphasis added). Although Barton's argument has a certain intuitive appeal, we conclude that § 1229b(d)(1) 's plain language forecloses it.
We begin our textual analysis where Barton does-with the word "inadmissible." Standard English-language dictionaries all seem to define "inadmissible" in pretty much the same way: "Not admissible; not proper to be allowed or received." Webster's Second New International Dictionary 1254 (1944); see also, e.g. , Webster's Third New International Dictionary 1139 (2002) (same); Oxford English Dictionary (3d ed. 2011) ("[n]ot admissible; not to be admitted, entertained, or allowed"). Unsurprisingly, those same dictionaries *1299 similarly define the root word "admissible": "Capable of being or having the right to be admitted to a place." Oxford English ; see also, e.g. , Webster's Second at 34 ("[e]ntitled or worthy to be admitted"); Webster's Third at 28 (same). So, in short, an alien like Barton is "inadmissible" if he isn't "proper[ly]"-or doesn't "hav[e] the right to be"-present in the United States.
On, then, to the word "renders," which precedes "inadmissible." Barton asserts that Congress's use of that term-such that the alien must commit an offense that "renders" him "inadmissible"-"requires certain factual circumstances to be in existence to be operative," and thus that it "makes most sense for Congress to have used 'renders' inadmissible to apply to those seeking admission ...." Br. of Petitioner at 12-13. We disagree that the term "renders" necessitates (or even properly suggests) so narrow a reading. Turning again to the dictionaries, we find that they almost uniformly define "render" to mean "to cause to be or to become." E.g. , Webster's Second New International Dictionary 2109 (1944); Webster's Third New International Dictionary 1922 (2002) (same); Oxford English Dictionary (3d ed. 2011) (same). Some, interestingly-and we think tellingly-go on to explain that the word "render" can indicate the conferral of a particular condition, or "state." Webster's Second at 2109; Webster's Third at 1922.
A "state"-based understanding makes particularly good sense here, where the word that follows "renders" is "inadmissible."
Cf.
Robinson v. Shell Oil Co.
,
We simply cannot discern in § 1229b(d)(1) 's text any indication that in order to be "render[ed] ... inadmissible" within the meaning of the stop-time rule, an alien
must
presently be seeking admission. Rather, an alien is "render[ed] ... inadmissible" when he is "cause[d] to be or to become" not "proper[ly]" or "right[ly]" admitted. In other words, "inadmissib[ility]" is a
status
that an alien assumes by
*1300
virtue of his having been convicted of a qualifying offense under § 1182(a)(2). True, for an alien like Barton, who has already been admitted-and isn't currently seeking admission-that status might not immediately produce real-world admission-related consequences. But it isn't categorically irrelevant to admission either; rather, it may just be that the otherwise-latent status manifests somewhere down the road. Barton is of course correct that, as a general rule, an already-admitted lawful permanent resident needn't seek readmission to the United States. There are exceptions, however. For instance, a once-admitted alien may need readmission if he "has abandoned or relinquished [lawful-permanent-resident] status," "has been absent from the United States for a continuous period in excess of 180 days," or "has engaged in illegal activity after having departed the United States."
So as a matter of both linguistics and logic, at least for stop-time purposes, a lawful permanent resident can-contrary to Barton's contention-be "render[ed] ... inadmissible" even if he isn't currently seeking (and for that matter may never again seek) admission to the United States.
B
In resisting this plain-language interpretation, Barton relies principally on the rule against surplusage-which cautions against needlessly reading a statute in a way that renders (pun fully intended) certain language superfluous.
See, e.g.
,
Duncan v. Walker
,
If an offense referred to in8 U.S.C. § 1182 (a)(2), to wit, a [crime involving moral turpitude], categorically render[s] an alien inadmissible and trigger[s] the stop-time rule, without respect to whether that individual is actually seeking admission, then there would be no need to consider whether, in the alternative, the offense render[s] the alien removable under8 U.S.C. § 1227 (a)(2) or (a)(4).
Br. of Petitioner at 11.
Although we find Barton's surplusage-based argument a little hard to follow, he seems to be saying something like the following. At the outset, he correctly recognizes that in order to trigger § 1229b(d)(1) 's stop-time rule, two conditions must be met: first, the alien must have "committed an offense referred to in section 1182(a)(2)"; second, and separately, that offense must "render[ ] the alien" either "inadmissible ... under section 1182(a)(2)" or "removable ... under section 1227(a)(2) or 1227(a)(4)...."
See
Heredia v. Sessions
,
We reject Barton's argument for two reasons. As an initial matter, the Supreme Court has repeatedly explained that the usual "preference" for "avoiding surplusage constructions is not absolute" and that "applying the rule against surplusage is, absent other indications, inappropriate" when it would make an otherwise unambiguous statute ambiguous.
Lamie v. U.S. Trustee
,
Moreover, and in any event, Barton's surplusage-based argument misunderstands the stop-time rule's operation. Contrary to Barton's assumption, answering "yes" to the first question-whether the alien has "committed an offense referred to in section 1182(a)(2)"-does
not
necessarily require a "yes" to the second question-whether that offense "renders the alien inadmissible ... under section 1182(a)(2)." The reason is that while the mere "commi[ssion]" of a qualifying offense satisfies the prefatory clause, actually "render[ing] the alien inadmissible" demands more. Under § 1182(a)(2), an alien "is inadmissible"-here, as a result of a "crime involving moral turpitude"-only if he is "convicted of, or ... admits having committed, or ... admits committing acts which constitute the essential elements of" the listed offense.
So contrary to Barton's contention, there is no surplusage. The statutory language *1302 that he assails as superfluous is in fact the second of two independent requirements, both of which are necessary to trigger the stop-time rule. 4
III
For the foregoing reasons, we hold, per the stop-time provision's plain language, that a lawful-permanent-resident alien need not be seeking admission to the United States in order to be "render[ed] ... inadmissible." Accordingly, the Board correctly concluded that Barton is ineligible for cancellation of removal because the stop-time rule-triggered when he committed a crime involving moral turpitude in January 1996-ended his continuous residence a few months shy of the required seven-year period. 5
PETITION DENIED.
For an explanation of the differences-why sometimes "able" and sometimes "ible"?- see Catherine Soanes, Do you know your -ibles from your -ables? , Oxford Dictionaries: OxfordWords (Oct. 23, 2013), https://blog.oxforddictionaries.com/2012/10/23/ibles-and-ables/ (last visited Sept. 15, 2018).
In
Nguyen
, the Ninth Circuit acknowledged that § 1101(a)(13)(C) specifies circumstances in which a lawful permanent resident might have to seek readmission, but answered that none of them applied in the case before it.
There is one clarification worth making here. Although it is an alien's conviction of a qualifying offense that "renders [him] inadmissible" for stop-time purposes, his period of continuous residence is deemed to terminate on the date he initially committed that offense. So, in effect, his conviction-based inadmissibility "relates back" (our term) to the date of the crime's commission.
See, e.g.
,
Heredia
,
Although the Ninth Circuit embraced a version of this surplusage-based argument in
Nguyen
,
see
Because we conclude that the stop-time provision's statutory language is unambiguous, we needn't definitively determine whether, as the government contends, the Board's decision here-which the parties agree is a non-precedential single-member order-is entitled to
Chevron
deference.
See
Chevron
,
It is true, as the government says, that the single-member opinion here cited (parenthetically) the Board's earlier decision in
Matter of Jurado-Delgado
for the proposition that "the phrase 'renders the alien admissible ... or removable' in section [1229b(d)(1) ] requires only that an alien 'be or become' inadmissible or removable, i.e., be potentially removable if so charged,"
One of the principal justifications for granting deference to administrative agencies is that they operate pursuant to regular procedures that ensure thorough consideration and vetting of interpretive issues.
See
Chevron
,
Reference
- Full Case Name
- Andre Martello BARTON, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
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