Supreme Court to Consider Grounds for Deporting Permanent Residents

April 29, 2019 Updated: April 29, 2019

WASHINGTON—The Supreme Court could make it easier for lawful permanent residents to stay in the United States after being convicted of felonies.

As of January 2014, the most recent date for which Department of Homeland Security figures are available, there were about 13.2 million lawful permanent residents in the United States.

The Supreme Court agreed April 22 to hear the case of Andre Martello Barton, 40, a lawfully admitted permanent resident and Jamaican national. Oral arguments in the highly technical immigration law case likely won’t take place until the fall.

The government asserts that several crimes Barton was convicted of constitute crimes involving moral turpitude—grounds for deportation—but he’s fighting to cancel a removability determination made against him.

Barton sought relief from the high court after the 11th Circuit Court of Appeals ruled against him on Sept. 25, 2018. Barton and his mother were legally admitted to the country in 1989 when he was a minor. He obtained his green card granting lawful permanent residence in 1992.

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.

But the permanent resident’s period of continuous residence is “deemed to end” under the “stop-time rule,” as soon as he commits an offense that makes him inadmissible to or removable from the United States, Barton states in his petition to the Supreme Court.

In 1996, when Barton’s continuous residence in the country hadn’t yet reached the seven-year mark, he was charged with aggravated assault, criminal damage to property, and possession of a firearm during the commission of a felony. He was arrested for drug possession in 2007 and 2008 and received drug treatment, and states that he hasn’t been in trouble with the law since that time.

He 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 is now the primary breadwinner in his family and has no close relatives in Jamaica.

After the 2008 arrest, the government initiated removal proceedings, charging him with being deportable, as opposed to inadmissible, a legally significant distinction. An immigration judge, as well as the Board of Immigration Appeals, ruled against him, so he applied for cancellation of removal. The government refused to cancel the removal, arguing he was ineligible for relief because the seven-year continuous residence period was halted in 1996.

The 11th Circuit denied Barton’s appeal. The Supreme Court agreed to review the case April 22 at Barton’s request.

The 11th Circuit, along with the Second, Third, and Fifth Circuits, determined the stop-time rule applies regardless of whether an admitted immigrant is seeking admission to the United States, but the Ninth Circuit diverged, finding that immigrants can’t be deemed “inadmissible” unless they are actually applying for admission.

Barton argues his 1996 conviction did not make him inadmissible because he “had already been admitted to the United States and did not need to be readmitted. A person who has already been admitted can be rendered deportable—i.e., eligible to lose the status of a lawfully admitted permanent resident. But once the alien has been ‘lawfully admitted,’ he cannot be ‘rendered inadmissible.’”

The government countered in a brief that the circuit court split identified by Barton was not something the Supreme Court needed to resolve.

“Premature adjudication of the issue could result in a waste of judicial resources, or could unnecessarily cabin the discretion of the agency,” the government stated.

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