Supreme Court Considers Whether Criminal Lawful Permanent Resident Can Avoid Deportation

By Matthew Vadum
Matthew Vadum
Matthew Vadum
Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.
November 4, 2019 Updated: November 4, 2019

WASHINGTON—The lawyer for a lawful U.S. permanent resident told the Supreme Court on Nov. 4 that the hard-to-interpret wording of a federal immigration statute doesn’t allow the government to deport the man, even though in later years he was convicted of serious crimes.

The case, cited as Barton v. Barr, is important because if the Supreme Court sides with the Trump administration, which is seeking the man’s removal, it could be easier in the future for the government to deport lawful permanent residents, or LPRs, convicted of felonies.

President Donald Trump ran on a platform involving stronger enforcement of the nation’s immigration laws.

According to the most current publicly available figures, there were about 13.2 million LPRs living in the United States as of January 2015, the Office of Immigration Statistics of the U.S. Department of Homeland Security stated in a report earlier this year. Of that total, 9 million were eligible to seek U.S. citizenship.

The government asserts that several crimes that Andre Martello Barton, a Jamaican national, was convicted of involve “moral turpitude”—grounds for deportation—but he’s fighting to cancel a removability determination made against him.

Barton graduated from a technical college in 2009 and now runs a car repair shop that his mother owns. He has four young children, all of whom are U.S. citizens, and has a disabled fiancée in the United States who is unable to work. He’s now the primary breadwinner in his family and has no close relatives in his native Jamaica.

But after gaining LPR status, Barton was convicted in 1996 of aggravated assault, criminal damage to property, and possession of a firearm during the commission of a felony. In 2007 and 2008, he was also convicted under the Georgia Controlled Substances Act.

Federal law states at 8 U.S.C. § 1229b(a) that the attorney general may cancel the removal of an alien who is inadmissible or deportable, if the individual has been a lawful permanent resident for five years and has resided continuously in the United States for seven years, during which time he hasn’t been convicted of an aggravated felony.

Justices disagreed whether the “stop-time rule,” which determines whether an LPR has resided in the U.S. long enough to be eligible to avoid removal, should be construed broadly or narrowly. The high court considered what crimes bring the rule into play and stop time from being calculated during the seven-year residency period needed to seek relief from removal.

Barton acquired LPR status in 1989, and that meant he was several months shy of the seven-year residency period.

Barton sought relief from the Supreme Court after the 11th Circuit Court of Appeals, based in Atlanta, ruled against him in September 2018.

During oral arguments Nov. 4, the justices argued at length with attorneys about the meaning of words such as “inadmissible” that appear in the Immigration and Nationality Act (INA).

Justices Stephen Breyer and Elena Kagan suggested the statute was poorly drafted.

Whoever wrote the language in the law “wasn’t a genius,” Breyer said.

Kagan got into the niceties of English grammar, asking attorney Frederick Liu from the U.S. solicitor general’s office, to “make sense of the verb tenses” in the INA for her.

“I would think that you would have an extremely good argument if the tenses were subjunctive … if it said—if it would render the alien inadmissible, but it doesn’t say that. It says renders the alien inadmissible, which seems not to refer to something that could happen in the future if the alien, again, tried to gain admission.”

Justices Brett Kavanaugh and Ruth Bader Ginsburg seemed to favor the Trump administration’s position.

It seems fair to assume Congress intended that “any blemish” on a person’s record should render them ineligible for relief.

Ginsburg said that argument had “appeal.”

Why wouldn’t Congress have intended the residency period calculation to stop after a person has “abused the hospitality of the United States?” Ginsburg said.

Justice Sonia Sotomayor said the statute should be interpreted more narrowly to benefit LPRs, given the “solicitude” the INA shows “to long-time … permanent residents.”

The Nov. 4 hearing came after U.S. District Judge Michael H. Simon issued a sweeping nationwide injunction Nov. 2 temporarily preventing the Trump administration from enforcing Proclamation 9945, which requires would-be permanent residents to demonstrate they can pay for their own health care. Simon, who is based in Portland, Oregon, was appointed in 2011 by then-President Barack Obama.


Matthew Vadum
Matthew Vadum
Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.