Supreme Court Makes It Easier to Deport Green Card Holders Convicted of Serious Crimes

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
April 23, 2020Updated: April 23, 2020

A divided Supreme Court on Thursday ruled to make it easier for the federal government to deport lawful permanent residents (LPRs) who have been convicted of serious crimes.

In a 5-4 decision, the top court justices sided against a man who was seeking to cancel deportation orders stemming from firearm and drug offenses. LPRs who are subject to deportation orders can apply to have their removal canceled under a federal immigration law if they meet strict eligibility requirements.

That law gives the attorney general power to cancel the removal of an applicant who has been an LPR for five years and has resided continuously in the United States for seven years, during which time he or she must not have been convicted of an aggravated felony. If an LPR is found to have committed such felonies, a rule called the “stop-time rule” would be triggered. This rule would cause the accrual of the seven-year requirement to pause from the time when the individual commits a crime that renders them “inadmissible.”

The court on Thursday ruled to uphold a lower court decision that found the man ineligible for the discretionary cancellation of his removal because he had committed aggravated assault offenses within the initial seven years of his residency, even though those crimes were not grounds for his deportation.

The ruling is widely viewed as a victory for the Trump administration. President Donald Trump has been running on a platform that pushes for stronger enforcement of national immigration laws.

In the case at hand, Andre Barton, a lawful permanent resident and Jamaican national, had applied to have his removal canceled. Barton and his mother were legally admitted to the country in 1989 and he obtained his green card in 1992. The case is cited as Barton v. Barr.

During his time in the United States, he has been convicted of state crimes on three separate occasions spanning 12 years. 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 of drug offenses in Georgia state courts.

In 2016, the federal government sought his removal under his firearms offense and drug offenses. Barton conceded that he was removable on those offences and an immigration judge found him removable. He then applied for cancellation of removal. The immigration judge and the Board of Immigration Appeals found that he was not eligible for the cancellation because he had committed the aggravated assault during his first seven years of his residency rendering him inadmissible.

Barton argues that because he was already lawfully admitted, he could not be “rendered inadmissible” under the meaning of the cancellation of removal law.

On appeal, the U.S. Court of Appeals for the 11th Circuit agreed with the immigration judge. The 11th circuit had taken the same view as the 2nd, 3rd, and 5th Circuits, determining that the stop-time rule applies to immigrants like Barton. Meanwhile, the 9th Circuit said immigrants can’t be deemed “inadmissible” unless they are seeking admission into the United States.

Barton then appealed the ruling to the Supreme Court.

Justice Brett Kavanaugh, who wrote the majority opinion, agreed with the 11th circuit but also noted that the deportation process is a “wrenching process” especially for family members. The court decided along conservative-liberal ideological lines.

“Removal is particularly difficult when it involves someone such as Barton who has spent most of his life in the United States,” Kavanaugh wrote (pdf). “Congress made a choice, however, to authorize removal of noncitizens—even lawful permanent residents—who have committed certain serious crimes. And Congress also made a choice to categorically preclude cancellation of removal for noncitizens who have substantial criminal records. Congress may of course amend the law at any time. In the meantime, the Court is constrained to apply the law as enacted by Congress.”

The majority found that there was no problem with considering the aggravated assault offenses even though they were not grounds for Barton’s deportation.

“It is entirely ordinary to look beyond the offense of conviction at criminal sentencing, and it is likewise entirely ordinary to look beyond the offense of removal at the cancellation-of-removal stage in immigration cases,” he wrote.

Justice Sonia Sotomayor dissented, arguing that the majority ruling was “at odds with common sense.” She was joined by the other liberal justices. She argued that the majority had conflated “inadmissibility” with “deportability.” She said for someone to be inadmissible, that individual must be a noncitizen seeking admission.

“Barton cannot and should not be considered inadmissible for purposes of the stop-time rule because he has already been admitted to the country,” she wrote. “Thus, for the stop-time rule to render Barton ineligible for relief from removal, the Government must show that he committed an offense that made him deportable.”

About 13.2 million LPRs were living in the United States as of January 2015, according to the latest figures from the Office of Immigration Statistics of the U.S. Department of Homeland Security published in 2019 (pdf). Among that number, 9 million were eligible to seek U.S. citizenship.

Matthew Vadum contributed to this report.