Amicus Curiae Brief — Andre Martello Barton, Petitioner v. William P. Barr, Attorney General
Supreme Court briefJul 3, 2019
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No. 18-725
IN THE
Supreme Court of the United States
ANDRE MARTELLO BARTON,
Petitioner,
v.
WILLIAM P. BARR, ATTORNEY GENERAL,
Respondent.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF OF MOMODOULAMIN JOBE AND
THE IMMIGRANT DEFENSE PROJECT AS
AMICI CURIAE IN SUPPORT OF PETITIONER
NOAH A. LEVINE
ARI HOLTZBLATT
WILMER CUTLER PICKERING Counsel of Record
AMY C. LISHINSKI*
HALE AND DORR LLP
WILMER CUTLER PICKERING
7 World Trade Center
HALE AND DORR LLP
250 Greenwich Street
1875 Pennsylvania Ave., NW
New York, NY 10007
Washington, DC 20006
(202) 663-6000
ari.holtzblatt@wilmerhale.com
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................... iii
INTEREST OF AMICI....................................................... 1
SUMMARY OF ARGUMENT........................................... 4
ARGUMENT........................................................................ 8
I.
A LAWFULLY ADMITTED PERMANENT
RESIDENT CANNOT BE RENDERED
“INADMISSIBLE” UNLESS AND UNTIL IT IS
LEGALLY POSSIBLE FOR HIM TO BE
CHARGED WITH INADMISSIBILITY ............................. 8
II. CONTINUOUS RESIDENCE CONTINUES TO
ACCRUE UNTIL A PERMANENT RESIDENT
IS
RENDERED
INADMISSIBLE
OR
REMOVABLE ................................................................ 12
A. The Plain Text Of The Statute
Instructs The Clock To Stop When
Two Events Have Occurred .............................. 13
B. Terminating Continuous Residence
Before A Resident Is Rendered
Inadmissible Or Removable Produces
Harsh And Unintended Consequences ............ 16
1.
The
Eleventh
Circuit’s
interpretation cuts off continuous
residence years—or decades—
before lawful permanent residents
like Jobe become removable ....................... 17
ii
TABLE OF CONTENTS—Continued
Page
2.
Lawful permanent residents may
lose eligibility for discretionary
relief even for decades-old conduct
for which they were never arrested
or convicted ................................................... 20
3.
These inequities are triggered by
minor offenses that Congress
elsewhere
exempted
from
immigration consequences ............................. 23
4.
The government’s interpretation
impedes lawful permanent residents’
right to travel, a right of fundamental
importance to lawful permanent
residents ......................................................... 26
C. Pegging The Stop-Time Rule To
Inadmissibility Or Removability Best
Aligns With Congress’s Purposes .................... 29
CONCLUSION .................................................................. 32
iii
TABLE OF AUTHORITIES
CASES
Page(s)
Barton v. U.S. Attorny General, 904 F.3d 1294
(11th Cir. 2018)................................................... passim
Calix v. Lynch, 784 F.3d 1000 (5th Cir. 2015) ............... 12
Heredia v. Sessions, 865 F.3d 60 (2d Cir.
2017) ........................................................... 6, 7, 9, 14, 15
Hossain v. Attorney General of U.S., 434 F.
App’x 128 (3d Cir. 2011) ............................................ 21
In re Perez, 22 I&N Dec. 689 (BIA 1999)................. 14, 15
Jobe v. Whitaker, 758 F. App’x 144 (2d Cir.
2018) ............................................................................... 7
Judulang v. Holder, 565 U.S. 42 (2011) ......................... 17
Kent v. Dulles, 357 U.S. 116 (1958) ........................... 26, 27
Kungys v. United States, 485 U.S. 759 (1988) ............... 11
Landon v. Plasencia, 459 U.S. 21 (1982)........................ 10
Maslenjak v. United States, 137 S. Ct. 1918
(2017) ............................................................................ 26
Nguyen v. Sessions, 901 F.3d 1093 (9th Cir.
2018) ........................................................... 2, 8, 9, 10, 12
Padilla v. Kentucky, 559 U.S. 356 (2010) ...................... 25
Pereira v. Sessions, 138 S. Ct. 2105 (2018) .......... 4, 10, 30
Rosenberg v. Fleuti, 374 U.S. 449 (1963) ................... 6, 26
Vartelas v. Holder, 566 U.S. 257 (2012) ..................... 6, 26
DOCKETED CASES
Heredia v. Sessions, No. 17-661 (U.S.) ........................... 20
iv
TABLE OF AUTHORITIES—Continued
Page(s)
Jobe v. Barr, No. 18-1329 (U.S.) ................................ 5, 6, 8
Jobe v. Whitaker, No. 17-284 (2d Cir.) .............................. 5
Mendez v. Sessions, No. 18-801 (2d Cir.) ................. 18, 19
Nguyen v. Sessions, No. 17-70251 (9th Cir.) ... 11, 12, 22, 23
STATUTORY PROVISIONS
5 U.S.C. §8343 .................................................................... 16
8 U.S.C. §136 (1946)........................................................... 29
8 U.S.C.
§1101 ......................................................................... 6, 10
§1151 ............................................................................. 27
§1153 ............................................................................. 27
§1182 .................................................................... passim
§1227 ................................................... 5, 9, 11, 17, 18, 19
§1229a ............................................................................. 9
§1229b.................................................................. passim
31 U.S.C. §776 .................................................................... 16
50 U.S.C.
§1805 ............................................................................. 16
§1824 ............................................................................. 16
§1861 ............................................................................. 16
§1881b........................................................................... 16
§1881c ........................................................................... 16
Pub. L. No. 82-414, 66 Stat. 163 (1952) ........................... 30
LEGISLATIVE HISTORY MATERIALS
H.R. Conf. Rep. No. 104-828 (1996) ................................ 31
H.R. Rep. No. 100-882 (1988) ....................................... 5, 23
v
TABLE OF AUTHORITIES—Continued
Page(s)
H.R. Rep. No. 104-469, pt. 1 (1996) ........................... 30, 31
S. Rep. No. 82-1137 (1952) ................................................ 29
S. Rep. No. 104-48 (1995) .................................................. 30
OTHER AUTHORITIES
American Heritage Dictionary English
Language (5th ed. 2016) ............................................ 13
Cunnings, Jordan, Nonserious Marijuana
Offenses and Noncitizens: Uncounseled
Pleas and Disproportionate Consequences,
62 UCLA L. Rev. 510 (2015) ..................................... 25
DOJ, Legal Orientation Program, How to
Apply for “Cancellation of Removal for
Certain Lawful Permanent Residents”
(2014), https://tinyurl.com/y58bre4k........................ 21
FBI, Crime Data Explorer: Arrest Data–
Reported Number of Drug Arrests,
https://crime-data-explorer.fr.cloud.gov/
downloads-and-docs (last accessed July 3,
2019) ............................................................................. 25
Hunsucker, Keith, Senior Instructor, Federal
Law Enforcement Training Center,
Criminal
Without
Conviction
–
Prosecuting the Unconvicted Arriving
Alien Under Section 212(a)(2)(A) of the
Immigration and Nationality Act, 2 Q.
Rev. (2d ed. 2001), https://tinyurl.com/
y3xqobbe ...................................................................... 28
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Letter from Christopher Setz-Kelly, Staff Attorney, Nationalities Service Center to
Amy Lishinski, Associate, Wilmer Cutler
Pickering Hale and Dorr (July 1, 2019) (on
file with Wilmer Cutler Pickering Hale and
Dorr) ............................................................................. 24
Pennsylvania
State
Law
School
&
Pennsylvania
Immigration
Resource
Center,
Practitioner’s
Toolkit
on
Cancellation of Removal for Lawful
Permanent Residents (2016), https://
tinyurl.com/y42nrgju ................................................. 21
Presidential Statement on Signing the
Omnibus Consolidated Appropriations Act
1997, reprinted in 1 Legislative History of
the Omnibus Consolidated Appropriations
Act of 1997 P.L. 104-208 (1997) ................................ 30
U.S. Department of State, Visa Bulletin for
June 2019 (2019) ......................................................... 27
IN THE
Supreme Court of the United States
No. 18-725
ANDRE MARTELLO BARTON,
Petitioner,
v.
WILLIAM P. BARR, ATTORNEY GENERAL,
Respondent.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF OF MOMODOULAMIN JOBE AND
THE IMMIGRANT DEFENSE PROJECT AS
AMICI CURIAE IN SUPPORT OF PETITIONER
INTEREST OF AMICI1
Amicus curiae Momodoulamin Jobe is a Gambian
citizen and long-time lawful permanent resident who
was denied eligibility for cancellation of removal under
the stop-time rule even though he did not seek admission and so was not capable of being “render[ed] … inadmissible” until after he had resided continuously and
lawfully in the United States for more than the required seven-year period.
1
No counsel for a party authored this brief in whole or in
part, and no entity or person, other than amici curiae and their
counsel, made a monetary contribution intended to fund the preparation or submission of this brief. All parties have consented to
the filing of this brief.
2
Amicus curiae Immigrant Defense Project is a
not-for-profit immigrant rights organization, including a
legal resource and training center that provides immigrants and their attorneys with expert legal advice on
issues involving the interplay between criminal and immigration law. In this capacity, it advises individuals
like Jobe, whom the government is seeking to deny eligibility for cancellation of removal even though they too
accrued seven years of residence in the United States
before being rendered inadmissible or deportable.
Jobe’s case, and others like it, implicate two closely-related issues addressed by the Eleventh Circuit on
which the “circuits have divided.” Barton v. U.S. Attorney General, 904 F.3d 1294, 1295 (11th Cir. 2018).
Petitioner’s brief addresses the first issue: Whether a
lawfully admitted permanent resident can be “render[ed] … inadmissible” at a time when he remains
lawfully admitted and is not required to seek admission. Pet. Br. i. Amici agree with Petitioner that a lawfully admitted permanent resident is not “render[ed] …
inadmissible” unless and until it is “legally possible” for
the government to charge him with inadmissibility. Id.
48; see also id. 43-53.
This brief primarily focuses on the second issue:
For a lawful permanent resident who (like Jobe, but unlike Petitioner) is eventually rendered inadmissible after
seven years have elapsed, does the clock stop at the time
that he commits a section 1182(a)(2) offense or when that
offense renders him inadmissible? Because the stoptime rule, by its plain terms, “is triggered by two
events,” the more natural reading is that continuous residence continues to accrue until a lawful permanent resident both commits a section 1182(a)(2) offense and is
rendered inadmissible. Nguyen v. Sessions, 901 F.3d
1093, 1096 (9th Cir. 2018) (emphasis added). The Elev-
3
enth Circuit nonetheless opined that the “period of continuous residence is deemed to terminate on the date
[the resident] initially committed th[e] offense.” Barton,
904 F.3d at 1301 n.3. In his brief, Petitioner “assumes”
the correctness of this view, while also emphasizing that
this Court has never decided the question. Pet. Br. 9 n.4.
Because these two questions arise from the same statutory text and are deeply intertwined, it is necessary to
consider both questions together to properly interpret
the statute and avoid the harsh and anomalous consequences highlighted by stories like Jobe’s. Amici urge
this Court to reject the Eleventh Circuit’s countertextual reading of the statute with respect to this second,
closely-related issue, or to at least reserve it for a case
that more squarely presents the issue.
This amicus brief explains why the Eleventh Circuit’s resolution of both issues is erroneous. And it highlights the stories of lawful permanent residents who, like
Jobe, committed minor criminal offenses that did not
subject them to removal on any ground and who thereafter continued to reside in the United States, accruing
more than seven years of lawful residence. During those
seven-plus years, it was legally impossible for the government to remove these individuals. They built lives
here in reliance on their status as lawfully admitted
permanent residents—maintaining employment, contributing to their communities, paying taxes, and starting families. Many years later, they traveled abroad for
various reasons and found, on their return, that the
years during which they lived in this country without
even the possibility of being removed did not “count” for
purposes of the stop-time rule. As these stories illustrate, the interpretation of the stop-time rule adopted by
the Eleventh Circuit creates harsh and anomalous consequences that Congress never intended.
4
SUMMARY OF ARGUMENT
A lawfully admitted permanent resident who is
removable from the United States may seek cancellation of removal if, among other things, he has resided in
the United States continuously for at least seven years.
8 U.S.C. §1229b(a)(2). But that seven-year period
“shall be deemed to end” under certain circumstances.
Id. §1229b(d)(1). This is commonly referred to as the
“stop-time” rule. See Pereira v. Sessions, 138 S. Ct.
2105, 2109 (2018).
As relevant here, the stop-time rule is triggered by
two events: (1) “commi[ssion] [of] an offense referred
to in section 1182(a)(2),” and (2) the offense’s effect of
“render[ing]” the permanent resident either “inadmissible … or … removable.” 8 U.S.C. §1229b(d)(1). As
noted above, the question presented in this case primarily concerns the second triggering event: Whether
a lawful permanent resident who is not seeking admission to the United States and so cannot possibly be removed on inadmissibility grounds can nonetheless be
“render[ed] … inadmissible” for purposes of the stoptime rule, id.
In its opinion below, the Eleventh Circuit also addressed another closely related issue: For a lawful
permanent resident who is eventually rendered inadmissible or removable after the seven-year period, does
the resident stop accruing continuous residence at the
moment that he “commits an offense referred to in section 1182(a)(2)” or as of the moment the offense “renders [him] inadmissible” or “removable”? 8 U.S.C.
§1229b(d). For lawful permanent residents like Jobe,
the choice between these two options makes all the difference.
5
Jobe, a Gambian citizen, lawfully entered the United
States in November of 2003. Five years later, having
married a United States citizen, he adjusted his status to
lawful permanent resident. For many years, Jobe lived
in Connecticut, contributing to his community by forming close friendships, maintaining steady employment,
and consistently paying his taxes. Motion for Stay 4,
Jobe v. Whitaker, No. 17-284 (2d Cir. Jan. 30, 2017).
Jobe had no criminal convictions until January of
2010, when he pleaded guilty to possession of a small
amount of marijuana. Pet. App. 26a, Jobe v. Barr,
No. 18-1329 (U.S.). This conviction did not bring about
any immediate change in Jobe’s immigration status: As
a lawfully admitted permanent resident, Jobe had no
need to seek admission and thus could not be charged
with inadmissibility. See Pet. Br. 3 & n.1 (explaining
when admission is required). And Jobe’s offense is one
that Congress expressly exempted from deportation, see
8 U.S.C. §1227(a)(2)(B)(i), because Congress “believe[d]
that aliens convicted of a minor possession offense involving marihuana do not pose a significant threat to society or U.S. citizens,” H.R. Rep. No. 100-882, at 43
(1988). As a result, after pleading guilty to marijuana
possession, Jobe continued to reside in the United States
as a lawfully admitted permanent resident until well
past the seven-year threshold of eligibility for cancellation of removal. Throughout those seven-plus years, it
was legally impossible for the government to remove
Jobe from the United States on any ground.
But that all changed in 2012 when—after nine years
of continuous and lawful residence in the United States—
Jobe took a brief trip abroad to Gambia, where his mother and teenage daughter were living. Pet. App. 26a, Jobe
v. Barr, No. 18-1329 (U.S.); Administrative Record 55,
Jobe v. Whitaker, No. 17-284 (2d Cir. Feb. 13, 2018). Im-
6
migration law ordinarily permits a lawfully admitted
permanent resident to briefly travel outside the United
States without seeking readmission upon return. See 8
U.S.C. §1101(a)(13)(C). But the Board of Immigration
Appeals (BIA) and the Second Circuit have interpreted
section 1101(a)(13)(C) to require a permanent resident to
“seek formal admission—even if returning from a brief
trip abroad” in six situations, including “if he has committed a drug offense.” Heredia v. Sessions, 865 F.3d 60, 64
(2d Cir. 2017), cert. denied, 138 S. Ct. 677 (2018) (citation
and quotation marks omitted). And in contrast to the
statutory provision setting forth grounds for deportability (section 1227), the provision delineating grounds for
inadmissibility (section 1182) contains no exception for
minor marijuana-possession convictions.
8 U.S.C.
§1182(a)(2)(A)(i)(II). The upshot of these provisions, as
interpreted, is that a traveling lawful permanent resident, such as Jobe, who has a single minor marijuana
conviction, is required to seek admission when he attempts to return to the United States and, at that point,
he may be deemed inadmissible.2
Jobe’s trip is what, for the first time in nine years,
required him to seek a new admission and exposed him
to removal on inadmissibility grounds. It would therefore be natural to peg the trip as the moment when Jobe
was “render[ed] … inadmissible.” And because Jobe had
been unremovable until that trip, it would also be natu2
Prior to enactment of IIRIRA, this Court held that a brief,
casual, and innocent trip abroad, like Jobe’s, did not subject a lawful permanent resident to the grounds of exclusion (the former
name for “inadmissibility”). See Rosenberg v. Fleuti, 374 U.S. 449,
462 (1963). The BIA and Second Circuit have construed 8 U.S.C.
§1101(a)(13)(C)(v) to abrogate Fleuti prospectively. Heredia, 865
F.3d at 64. This Court, however, has expressly declined to decide
that question. See Vartelas v. Holder, 566 U.S. 257, 262 n.2 (2012).
7
ral to credit him with having continuously resided in the
United States for the entire preceding nine years during
which he had lived here lawfully. Instead, the BIA and
the Second Circuit held that Jobe stopped accruing continuous residence when he committed the marijuana offense in September 2009, even though that offense did
not render him deportable, and even though he had no
need to seek admission at that time and so could not possibly have been rendered inadmissible. Jobe v. Whitaker, 758 F. App’x 144, 148 (2d Cir. 2018), petition for cert.
filed, No. 18-1329 (U.S. Apr. 19, 2019) (citing Heredia,
865 F.3d at 68-69 (which adopted this construction of the
stop-time rule)). As a result, the nine years that Jobe
had resided continuously in the United States, during
which it was legally impossible to remove him on any
ground, were transformed into less than six years of
“continuous residence.”
The Eleventh Circuit endorsed the same rule in a
footnote of the decision under review here. Like the
Second Circuit, the Eleventh Circuit took the view
that, no matter when a lawful permanent resident is
rendered inadmissible, the “period of continuous residence is deemed to terminate on the date he initially
committed th[e] offense.” Barton, 904 F.3d at 1301 n.3.
The Eleventh Circuit’s fleeting consideration of
this issue is troubling: Cases like Jobe’s starkly
demonstrate the strange results that flow from the
court’s reading of the stop-time rule—treating a lawful
permanent resident as having been “render[ed] … inadmissible” at a time when he remains lawfully admitted to the United States, and disregarding years or
even decades during which he continued to reside in the
United States without being subject to removal on either deportability or inadmissibility grounds. Amici
urge this Court either to reject this anomalous and
8
countertextual reading of the statute or to at least reserve it for a case that squarely presents the issue.3
ARGUMENT
The Eleventh Circuit erred in two respects. First,
as demonstrated by Petitioner, the court’s conclusion
that a noncitizen can be rendered inadmissible even
though he remains lawfully admitted and cannot possibly be charged with inadmissibility disregards the text
and structure of the statute. See Pet. Br. 43-53. Second, the text, context, and purposes of the statute also
foreclose the Eleventh Circuit’s view that continuous
residence terminates on the date of the statute’s first
triggering event (commission of a section 1182(a)(2) offense), rather than on the date of the second triggering
event (when the offense renders the resident inadmissible). See Barton, 904 F.3d at 1301 n.3. As the Ninth
Circuit has explained, the statute creates two triggering events, not just one, and so both events must occur
before continuous residence stops accruing. Nguyen v.
Sessions, 901 F.3d 1093, 1096 (9th Cir. 2018).
I.
A LAWFULLY ADMITTED PERMANENT RESIDENT CANNOT BE RENDERED “INADMISSIBLE” UNLESS AND UNTIL IT IS LEGALLY POSSIBLE FOR HIM TO BE CHARGED
WITH INADMISSIBILITY
Petitioner Barton was not “render[ed] … inadmissible” by his 1996 conviction for a single crime involving
moral turpitude. At the time of his conviction, he had
already been admitted to the United States and had no
need to be readmitted in order to continue to reside
3
Jobe has presented this issue to the Court in his petition for
certiorari, which remains pending. See Case No. 18-1329. This
Court should also grant Jobe’s petition.
9
lawfully in this country. 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 Barton’s conviction did not do that: A
single crime involving moral turpitude committed outside the first five years of an immigrant’s admission
does not render the immigrant deportable. See 8
U.S.C. §1227(a)(2)(A). And, since Barton had been
“lawfully admitted” and had no need to seek readmission, he also was not “render[ed] … inadmissible,” because he could not be so “rendered” until he did something that required him to seek admission. Put another
way: Barton was never “render[ed] … inadmissible”
because it was never legally possible for the government to remove him on inadmissibility grounds. See
Pet. Br. 43-53.
The Eleventh Circuit advanced the view that the
word “inadmissible,” “[b]y [its] very nature” as a word
ending in “-ible,” “connote[s] a person’s or thing’s character, quality, or status[,] which … exists independent
of any particular facts on the ground.” Barton v. U.S.
Attorney General, 904 F.3d 1294, 1299 (11th Cir. 2018).
The Second Circuit shared a similar view in Heredia,
concluding that an immigrant “‘becomes inadmissible’”
when he is “‘potentially removable if so charged.’” 865
F.3d at 68 (emphasis added).
But, as the Ninth Circuit recognized, neither Barton nor Jobe were “potentially removable” at the time
of their convictions: “Lawful permanent residents—
who have been ‘admitted’—are under most circumstances subject to the grounds of removability, not inadmissibility.” Nguyen, 901 F.3d at 1097; see also 8
U.S.C. §1229a(e)(2) (defining “removable,” for purposes
of sections 1229a and 1229b, as “in the case of an alien
not admitted to the United States, that the alien is in-
10
admissible … or … in the case of an alien admitted to
the United States, that the alien is deportable”); Landon v. Plasencia, 459 U.S. 21, 28 (1982). And, as discussed above supra pp. 5, 9, neither Jobe nor Barton
were convicted of offenses that met the requirements
of deportability. Accordingly, it was only once Jobe
traveled abroad and sought to return that he was required to seek admission and became potentially removable if charged with inadmissibility. See 8 U.S.C.
§1101(a)(13)(C)(v). It was at that point, not earlier,
that Jobe was rendered inadmissible. As for Barton,
having never travelled abroad, he never became subject to the grounds of admissibility and thus never became inadmissible. Nguyen, 901 F.3d at 1100 (“[A] lawful permanent resident cannot be ‘rendered inadmissible’ unless he is seeking admission.”).
The Eleventh Circuit’s interpretation conflicts with
the specialized meaning that “admission” and “admitted” carry in the immigration statute. Under the statute, “admission” and “admitted” are defined terms, and
section 1182—to which section 1229b(d)(1) refers—uses
the term “inadmissible” no less than 70 times. As the
Ninth Circuit explained, nowhere does the statute “divorce ‘inadmissibility’ from the admissions context.”
Nguyen, 901 F.3d at 1098.
It defies logic to think that Congress would have
singled out “inadmissibility” in the stop-time rule to
carry some anomalous meaning. “After all, it is a normal rule of statutory construction that identical words
used in different parts of the same act are intended to
have the same meaning.” Pereira v. Sessions, 138 S.
Ct. 2105, 2115 (2018) (quotation marks omitted). Yet,
as Petitioner explains (Br. 35), the Eleventh Circuit’s
view would assign different meanings to the word “inadmissible” not only within the same act, but in inter-
11
locking provisions of the same simultaneously-enacted
section. Subsection (a) of section 1229b authorizes the
Attorney General to “cancel removal in the case of an
alien who is inadmissible or deportable.” 8 U.S.C.
§1229b(a). “[A]n alien who is inadmissible” plainly refers to one who the government could remove on inadmissibility grounds. After all, the only noncitizens who
need, or could conceivably receive, cancellation are
those who are legally removable. But in subsection (d)
of section 1229b (the stop-time rule), the Eleventh Circuit would read “inadmissible” “alien[s]” to include
noncitizens who it is legally impossible to remove on
inadmissibility grounds. No principle of statutory construction justifies such a divergent interpretation of
the same term across a single section.
The Eleventh Circuit’s construction also “violates
the cardinal rule of statutory interpretation that no
provision should be construed to be entirely redundant.”
Kungys v. United States, 485 U.S. 759, 778 (1988) (Scalia, J., concurring). Section 1229b(d)(1) identifies three
clock-stopping scenarios: (i) service of a notice to appear; (ii) commission of an offense “referred to in section
1182(a)(2) … that renders the alien inadmissible … under section 1182(a)(2)”; and (iii) commission of an offense
“referred to in section 1182(a)(2) … that renders the alien … removable … under section 1227(a)(2) or
1227(a)(4).” Yet as the government just recently conceded in its en banc rehearing petition to the Ninth Circuit, its preferred reading makes the third scenario superfluous of the second. See Petition for Rehearing 13,
Nguyen v. Sessions, No. 17-70251 (9th Cir. Nov. 7,
2018). Even the government acknowledges that there is
no offense “referred to in section 1182(a)(2)” that would
not render a noncitizen “inadmissible” (as the government understands the term) but that would render the
12
noncitizen “removable.” See id.; see also Pet. Br. 30-34.
That “immigration statutes … can be difficult to harmonize,” Calix v. Lynch, 784 F.3d 1000, 1006 (5th Cir.
2015), is no excuse to “read superfluousness into a statute when applying the traditional rules of statutory construction leads to a perfectly reasonable reading,” Nguyen, 901 F.3d at 1099.
All of this indicates that a lawful permanent resident is “render[ed] … inadmissible to the United States
under section 1182(a)(2),” not by mere conviction or
confession, but only once the resident takes some further step, such as traveling abroad and seeking to return to the United States, that requires him to seek
admission and thus makes an inadmissibility charge
“legally possible.” Pet. Br. 48.
II. CONTINUOUS RESIDENCE CONTINUES TO ACCRUE UNTIL A PERMANENT RESIDENT IS RENDERED INADMISSIBLE OR REMOVABLE
The Eleventh Circuit further erred in holding that
continuous residence ends before a lawful permanent
resident is rendered inadmissible or removable. As the
Ninth Circuit explained, “the stop-time rule is triggered by two events.” Nguyen, 901 F.3d at 1096. Continuous residence thus continues to accrue until the resident both commits a section 1182(a)(2) offense (the
first event) and that offense renders the resident inadmissible or removable (the second event). See id. The
contrary reading adopted by the Eleventh and Second
Circuits—that the clock stops upon the first triggering
event alone—conflicts with the relevant text, statutory
13
context, and statutory purposes, and produces harsh
and unintended consequences.4
A. The Plain Text Of The Statute Instructs The
Clock To Stop When Two Events Have Occurred
The stop-time rule provides that a lawful permanent resident’s period of continuous residence “shall be
deemed to end … when the alien has committed an offense … that renders the alien inadmissible … or removable.” 8 U.S.C. §1229b(d)(1). “When” here means
“[a]t the time that.” American Heritage Dictionary
English Language 1971 (5th ed. 2016). And the phrase
following “when” identifies two distinct events, indicating that the clock “shall” stop “at the time that” both
events have come to pass.
The plain language of the statute compels this interpretation. If a parent tells his child, “you will understand parenting when you have had a child that refuses
to go to bed,” he does not mean that understanding will
arrive when the grandchild is born. He means that understanding will come once that grandchild resists bedtime. Similarly, if a store pledges that it “shall provide
a refund when you have bought a stainless-steel pot
that rusts,” it is promising to provide a refund when the
pot rusts, not when it is first purchased. So too, a statute that assesses fines against a contractor who “has
built a structure that collapses”: It authorizes fines upon collapse, not construction.
The stop-time rule has the same linguistic structure as these sentences and so conveys the same mean4
Petitioner assumes the correctness of the Eleventh Circuit’s
holding in his briefing, while emphasizing that this Court has never addressed the issue. Pet. Br. 9 n.4.
14
ing. The rule combines the future perfect tense—“any
period of continuous residence … shall be deemed to
end”—with the present perfect tense “has committed”
and the present tense “renders.” 8 U.S.C. §1229b(d)(1).
This indicates that the “deem[ing]” will be completed
(future perfect tense) at the same time as the “render[ing]” (present tense), which in turn must follow the
completion of the “commi[ssion]” (present perfect
tense). In other words, as the above examples demonstrate, continuous residence stops accruing only once
both triggering events occur: (1) the alien “has committed” the requisite offense; and (2) the offense later
“renders the alien inadmissible … or removable.” Id.
Resisting this straightforward reading, the Second
Circuit (whose analysis the Eleventh Circuit endorsed)
took the position that the “‘renders’ clause does not impose a separate temporal requirement,” but rather only
“‘limit[s] and defin[es] the types of offenses which cut
off the accrual of further time.’” Heredia, 865 F.3d at
69 (quoting In re Perez, 22 I&N Dec. 689, 693 (BIA
1999)); Barton, 904 F.3d at 1301 n.3 (endorsing the Second Circuit’s reading).
That reading cannot be squared with the statutory
text. The stop-time rule points twice to the exact same
statutory subsection: first, in requiring the noncitizen
to have “committed an offense referred to in section
1182(a)(2),” and second, in requiring that the offense
“render[] the alien inadmissible under section
1182(a)(2).” 8 U.S.C. §1229b(d)(1) (emphases added).
To avoid redundancy, the rule’s second reference to
section 1182(a)(2) must therefore do something beyond
limiting the types of clock-stopping offenses. And indeed it does. It identifies a distinct event that must occur before the clock stops: the moment when the offense “renders the alien inadmissible”—that is, the
15
moment when it becomes legally possible for the government to seek to remove him on inadmissibility
grounds. See supra pp. 11-12.
Moreover, the Eleventh and Second Circuits are
wrong that this distinct inadmissibility event somehow
“‘relates back’ … to the date of the crime’s commission.”
Barton, 904 F.3d at 1301 n.3; Heredia, 865 F.3d at 70-71.
To achieve its reading, the Eleventh Circuit mangled the
statute’s chronology, concluding that, “as long as a qualifying offense later does render the non-citizen inadmissible … the date of the commission of the offense governs.” Barton, 904 F.3d at 1301 n.3. It is telling that this
restatement required the court to ignore the statute’s
verb tenses and even add the word “later.” Such a tortured reading is entirely unnecessary when a plain-text
interpretation is available. The requirement that the
offense “render[] the alien inadmissible” is “attached to,
and an integral part of” the phrase defining “when” the
clock stops. Perez, 22 I&N Dec. at 702 (Guendelsberger,
BIA Member, dissenting). The text plainly mandates
that both triggering events “must have occurred before
accrual of residence ends.” Id.
The statute’s broader context further confirms this
reading. Under the reading adopted by the Eleventh
and Second Circuits, there are only two possible continuous-residence endpoints (i.e., times at which the
clock stops running): when a noncitizen (1) receives a
notice to appear, or (2) commits a section 1182(a)(2) offense. See Heredia, 865 F.3d at 69. But the stop-time
rule ends with an instruction that continuous residence
stops accruing upon “whichever [endpoint] is earliest.”
8 U.S.C. §1229b(d)(1) (emphasis added). By using the
superlative “earliest” rather than the comparative
“earlier,” Congress indicated that the rule lays out at
least three, not just two, possible endpoints. Indeed, no
16
provision of the United States Code uses the phrase
“whichever is earliest” to refer to a two-endpoint scenario.5 Yet the Second and Eleventh Circuit’s reading
gives no effect to this legislative choice. By contrast,
the reading set forth above gives full effect to Congress’s use of the term “earliest” by identifying three
possible endpoints: when the noncitizen (1) receives a
notice to appear, (2) becomes inadmissible, or (3) becomes removable.
B. Terminating Continuous Residence Before A
Resident Is Rendered Inadmissible Or Removable Produces Harsh And Unintended
Consequences
Even beyond these textual and contextual cues,
there are other good reasons to doubt that Congress
intended continuous residence to stop accruing before a
lawful permanent resident is rendered inadmissible or
removable. As the examples described below demonstrate, stopping the clock earlier deprives many lawful
permanent residents of full credit for years—or even
decades—during which they continued to live lawfully
5
The phrase “whichever is earliest” appears only seven other
times in the U.S. Code. All seven involve a choice between three
possible endpoints. See 5 U.S.C. §8343(a)(1) (rate compounded annually to date of payment, separation, or transfer, “whichever is earliest”); 31 U.S.C. §776(b)(2) (annuity ends when the child becomes 18
years of age, marries, or dies, “whichever is earliest”); 50 U.S.C.
§1805 (surveillance shall terminate when information is obtained,
application is denied, or after 7 days, “whichever is earliest”); see
also id. §§1824, 1861, 1881b, 1881c. As these examples demonstrate,
while the phrase “whichever is earliest” does not require that every
application of the statute present all three options (e.g., that every
child will turn 18, marry, and die), it certainly requires that at least
some applications of the statute present all three options (e.g., that a
child could marry, turn 18, and die)—a requirement that the government’s construction in no way satisfies.
17
in the United States and were unremovable. Such a
rule also threatens to deprive residents of discretionary
relief based solely on decades-old conduct for which the
resident was neither arrested nor convicted. Neither
the Eleventh nor Second Circuits pointed to any indication that Congress intended the stop-time rule to produce such harsh and anomalous consequences.
1. The Eleventh Circuit’s interpretation
cuts off continuous residence years—or
decades—before lawful permanent residents like Jobe become removable
As Jobe’s own case illustrates, certain—often minor—offenses preclude a noncitizen from admission to
the United States but do not subject a noncitizen that
has already been admitted to deportation from the
United States. Compare, e.g., 8 U.S.C. §1227(a)(2)(B)(i)
with id. §1182(a)(2)(A)(i)(II); see also Judulang v. Holder, 565 U.S. 42, 46 (2011) (categories of deportability and
inadmissibility “sometimes diverge[]”). Accordingly,
after conviction of one of these offenses, a lawful permanent resident may continue to reside lawfully in the
United States and the government cannot seek to remove him. Only if the lawful permanent resident travels abroad and attempts to return does removal based
on the offense even become possible. At that point—but
not until that point—he may be charged with inadmissibility and be subjected to possible removal.
According to the Eleventh Circuit, however, the
stop-time rule erases years—or even decades—during
which the resident lived lawfully in the United States
without even the possibility of being removed by
“relat[ing] back” to when the resident committed his
offense. Barton, 904 F.3d at 1301 n.3.
18
The cases of Amicus Jobe (discussed supra pp. 5-7),
Tomas Mendez, and Hoxquelin Gomez Heredia (described below) illustrate how years of continued residence as unremovable lawful permanent residents are
disregarded under the interpretation adopted by the
Eleventh and Second Circuits.
Tomas Mendez was already married to his U.S. citizen wife when he entered the United States in January
2004 as a conditional permanent resident. He received
full permanent resident status in July 2006. Over the
next decade, Mendez developed significant ties to the
United States, and raised two daughters, one a U.S. citizen and one a lawful permanent resident.
In October 2010, Mendez pleaded guilty to one
count of misprision of felony for failing to notify authorities that he had learned of someone else’s crime. The
government sought no jail time, and Mendez was sentenced to one year of probation, which he successfully
completed. A single conviction for misprision of a felony, which the BIA held is a “crime involving moral turpitude,” does not subject a lawful permanent resident
to deportation unless committed within the first five
years of admission. 8 U.S.C. §1227(a)(2)(A)(i)(I). Accordingly, like Jobe, Mendez continued to reside in the
United States as a lawfully admitted permanent resident for years longer.6
All that changed, however, when Mendez took a
two-week trip to the Dominican Republic in 2016—by
which point he had resided continuously in the United
States for 12 years without being subject to removal on
any ground. Unlike deportability, inadmissibility is
6
See Brief for Petitioner 5-8, Mendez v. Sessions, No. 18-801
(2d Cir. July 30, 2018).
19
triggered by a single crime involving moral turpitude
even if committed more than five years after admission.
Compare 8 U.S.C. §1182(a)(2)(A)(i) (inadmissibility),
with id. §1227(a)(2)(A)(i)(I) (deportability triggered by
two crimes involving moral turpitude or one within five
years of admission). Accordingly, assuming Mendez’s
conviction was a crime involving moral turpitude, it
was a ground for inadmissibility under section 1182,
even though it had not been a ground for deportability
under section 1227. As a result, Mendez’s trip required
him to seek a new admission and he was—at that
point—deemed inadmissible. And because Mendez had
committed that offense six years and nine months after
entering this country (rather than a full seven years),
he was also denied eligibility for cancellation of removal. The twelve years that Mendez had resided continuously in the United States, during which it was legally
impossible to remove him, were transformed into just
less than seven years of “continuous residence.”7
Hoxquelin Gomez Heredia entered the United
States as a lawful permanent resident in August 1997
when he was approximately 20 years old. For two decades, Heredia has been in a committed relationship
with a U.S. citizen, with whom he has raised her two
U.S. citizen children from a previous relationship, as
well as their three U.S. citizen children (one of whom is
now deceased).
In 2015, upon his return from a family trip to the
Dominican Republic, Heredia was charged as inadmissible and removal proceedings were initiated against
him. Ultimately, the BIA determined that Heredia was
removable based on a 2010 conviction. The BIA further
concluded that Heredia was ineligible for cancellation
7
See id. at 8-9, 11-12.
20
of removal based on a 1999 conviction for possession of
less than thirty grams of marijuana, even though he
remained unremovable for over a decade following that
conviction. Thus, after building a life, raising a family,
and even losing a child in the United States over the
course of two decades—half of his life—a mistake
Heredia made in his 20s has come back to separate him
from his home, his partner, and his children without
even the opportunity for discretionary relief.8
Under the Eleventh Circuit’s reading of the stoptime rule, a minor marijuana offense can erase not just
years, but decades spent living in this country as a lawfully admitted and unremovable permanent resident.
While Jobe, Mendez, and Heredia had resided here for
9, 12, and 13 years before becoming removable on any
ground, there is no limiting principle to the Eleventh and
Second Circuit’s reading of the statute. Indeed, a lawful
permanent resident could reside in the United States for
fifty years without any possibility of removal and yet be
deemed ineligible for cancellation of removal for an offense committed as a teenager five decades earlier.
2. Lawful permanent residents may lose eligibility for discretionary relief even for
decades-old conduct for which they were
never arrested or convicted
Even decades-old conduct for which a resident was
never arrested or convicted can deprive the resident of
eligibility for cancellation of removal under the Eleventh and Second Circuit’s reading of the statute. Unlike deportation, inadmissibility can be triggered not
only by a conviction but also by admitting to having
8
See Petition 10-13, Heredia v. Sessions, No. 17-661 (U.S.
Oct. 25, 2017).
21
once committed an offense. 8 U.S.C. §1182(a)(2)(A)(i)
(“[A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute
the essential elements of [certain crimes] is inadmissible.”). A lawful permanent resident returning from a
trip abroad who merely admits, for example, to having
smoked marijuana as a teenager is thus exposed to removal on inadmissibility grounds—even if he smoked
marijuana only once and was never arrested. And if
that youthful indiscretion occurred within seven years
of admission to the United States, that confession will
also make the lawful permanent resident ineligible for
cancellation of removal, under the reading embraced by
the Eleventh and Second Circuits.
That consequence is not only inexplicably harsh; it
also threatens to transform cancellation of removal
hearings into inquisitions at which an immigrant’s honesty is a liability. Speaking candidly about their pasts
is precisely what noncitizens are expected to do at cancellation of removal hearings. Indeed, one practitioner
even describes the hearings as “confessionals.” 9 And
Immigration Judges advise noncitizens to “own up” to
past mistakes. See Hossain v. Attorney Gen. of U.S.,
434 F. App’x 128, 130 (3d Cir. 2011) (recounting an IJ’s
admonishment to a lawful permanent resident seeking
cancellation of removal that “‘it is important to come to
9
See Pennsylvania State Law School & Pennsylvania Immigration Resource Center, Practitioner’s Toolkit on Cancellation
of Removal for Lawful Permanent Residents (2016), https://
tinyurl.com/y42nrgju (recounting one immigration law practitioner’s view that “the client should be candid”); see also DOJ, Legal
Orientation Program, How to Apply for “Cancellation of Removal
for Certain Lawful Permanent Residents” 24 (2014), https://
tinyurl.com/y58bre4k (“If you cannot admit you did something
wrong, it does not help your case.”).
22
the Court with clean hands [and] to own up to all failures that an individual causes himself’ when seeking
discretionary relief”). Yet, because merely admitting
to certain offenses can become a basis for inadmissibility, the Eleventh and Second Circuits’ rule that “inadmissibility ‘relates back’ … to the date of the crime’s
commission” puts noncitizens at risk of losing eligibility
for cancellation of removal simply by faithfully fulfilling
their obligation to speak candidly at their hearings.
The case of Vu Minh Nguyen illustrates how an
admission during a cancellation of removal hearing can
threaten to deprive a permanent resident of eligibility
for cancellation of removal.
Vu Minh Nguyen was eighteen years old when he
entered the United States as a lawful permanent resident in 2000. He lawfully resided in this country for
fifteen years, raising his two U.S. citizen children in
Washington State, where he lived with his U.S. citizen
mother. In December 2015, Nguyen was convicted of
criminal offenses for which he served 30 days in jail,
after which he was taken into custody by immigration
officials and placed into removal proceedings. Nguyen
applied for cancellation of removal, for which he appeared to be eligible.10
At the August 2016 hearing on his application for
cancellation of removal, however, Nguyen revealed,
under cross-examination by counsel for the Department of Homeland Security, that he had experimented
with cocaine at parties he attended in his early 20s.
Nguyen was never arrested or charged for these youthful lapses. Nonetheless, the government seized on these
10
See Opening Brief for Petitioner 5-7, Nguyen v. Sessions,
No. 17-70251 (9th Cir. Dec. 18, 2017).
23
candid admissions as grounds for pretermitting Nguyen’s application. The immigration judge held that
Nguyen was ineligible for cancellation, a holding that
the Ninth Circuit eventually reversed.11 The Eleventh
Circuit expressly “disagree[d] with the Ninth” Circuit’s
holding, Barton, 904 F.3d at 1295; under its rule, Nguyen would have been ineligible for cancellation of removal, because the stop-time rule would have cut off
Nguyen’s continuous residence as of his commission of
the offense in the early 2000s, even though he was never charged and did not admit to the offense until 2016,
id. at 1299 n.1—sixteen years after his lawful admission
to the United States.
3. These inequities are triggered by minor
offenses that Congress elsewhere exempted from immigration consequences
These harsh consequences are visited exclusively
upon lawful permanent residents with particularly minor offenses—offenses that Congress determined are
not serious enough to trigger deportation and are sufficient only to trigger inadmissibility. As noted above,
for example, Congress exempted minor marijuana offenders from deportation because it believed that such
individuals “do not pose a significant threat to society
or U.S. citizens” and therefore should be permitted to
remain in the United States. H.R. Rep. No. 100-882, at
43 (1988). Because Congress deemed such offenses to
be so minor, these individuals are able to remain in the
United States after their convictions and build a life
and family for themselves. Yet, under the Eleventh
Circuit’s view, once immigrants with minor marijuana
convictions travel, they suddenly find that years or
11
See id. at 7-8.
24
decades spent living in the United States as unremovable lawfully admitted permanent residents do not count
as “continuous residence.”
Edelinton Henry’s story demonstrates the inequity of this reading.
Henry entered the United States in October 1986
at the age of fifteen after his mother successfully petitioned for him to receive lawful permanent resident
status. Over the more than three decades that Henry
has lived in the United States, he has developed deep
ties to this country. In particular, Henry has shown
himself to be a committed family man—he has been
married to a U.S. citizen for nineteen years and has
raised five U.S. citizen children. Henry has also provided for his family, maintaining steady employment in
construction, and become a fixture of his community,
playing an active role in his church.12
In 1993, when Henry was 22—six years and 50
weeks after he became a lawful permanent resident—
he was arrested for possessing 19 grams of marijuana.
Henry’s subsequent conviction for that offense had no
consequence for his immigration status. Now, however, at age 48, Henry faces removal from the United
States and separation from his family, due to a second
marijuana conviction in 1998. Henry has had no further criminal convictions since that second marijuana
conviction over twenty years ago and, as noted, has
built ties and contributed to this country in precisely
the ways that should trigger cancellation of removal.
Yet under the reading adopted by the Eleventh and
12
See Letter from Christopher Setz-Kelly, Staff Attorney,
Nationalities Service Center to Amy Lishinski, Associate, Wilmer
Cutler Pickering Hale and Dorr (July 1, 2019) (on file with Wilmer
Cutler Pickering Hale and Dorr).
25
Second Circuits, the stop-time rule was triggered just
two weeks shy of seven years, rendering him ineligible
for cancellation of removal due to a minor marijuana
offense he committed in his 20s, notwithstanding the
years that he continued to live in this country as a lawfully admitted and unremovable permanent resident.13
The consequences of imposing such burdens on minor marijuana offenders, such as Jobe, Heredia, and
Henry, are tremendous. Hundreds of thousands of people are arrested for marijuana possession every year.14
Moreover, as more states and municipalities have moved
to “pseudo-decriminaliz[e] marijuana by lowering the
consequences of possessing small amounts of marijuana
for personal use without making personal use affirmatively legal,” it is entirely unsurprising that lawful permanent residents who have spent decades of their lives
in this country could end up with such convictions. Cunnings, Nonserious Marijuana Offenses and Noncitizens:
Uncounseled Pleas and Disproportionate Consequences,
62 UCLA L. Rev. 510, 526 (2015). Because these crimes
are often misdemeanors or civil infractions, the lawful
permanent resident may be unrepresented in these proceedings and thus never made aware that the state’s decision to pseudo-legalize marijuana has no bearing on the
severe consequences that await, should the lawful permanent resident set foot outside the United States. Cf.
Padilla v. Kentucky, 559 U.S. 356 (2010) (holding that
noncitizen criminal defendants have a Sixth Amendment
right to advice regarding immigration consequences of
criminal charges).
13
14
See id.
See FBI, Crime Data Explorer: Arrest Data–Reported
Number of Drug Arrests, https://crime-data-explorer.fr.cloud.gov/
downloads-and-docs (last accessed July 2, 2019).
26
This “world of disquieting consequences,” in which
a lawful permanent resident can be uprooted “even
many years after” committing a minor (and even uncharged) marijuana offense, requires “far stronger textual support” than that amassed by the Eleventh and
Second Circuits. Maslenjak v. United States, 137 S. Ct.
1918, 1927 (2017).
4. The government’s interpretation impedes
lawful permanent residents’ right to travel, a right of fundamental importance to
lawful permanent residents
The reading adopted by the Eleventh and Second
Circuits elevates the consequences of travel in circumstances like Jobe’s from possible removal to nearcertain removal. For lawful permanent residents who
make their lives in the United States, the “[l]oss of the
ability to travel” is, as this Court has recognized, an especially “harsh penalty” because it often “means enduring separation from close family members living
abroad.” Vartelas v. Holder, 566 U.S. 257, 268 (2012).15
This Court’s case law has recognized the importance of the ability to travel internationally. In Kent
v. Dulles, 357 U.S. 116 (1958), the Court discussed the
long pedigree of the right to travel, noting that it “was
emerging at least as early as the Magna Carta” and was
“deeply engrained in our history,” id. at 125-126. Freedom of movement across frontiers, the Court observed,
15
“[T]he punitive consequence of subsequent excludability,”
following a short trip abroad, was precisely what motivated this
Court to conclude that “no rational policy support[ed] application of
a re-entry limitation in all cases in which a resident alien crosses an
international border for a short visit.” Fleuti, 374 U.S. at 461. This
Court has expressly declined to decide whether Fleuti has been abrogated prospectively. See Vartelas, 566 U.S. at 262 n.2 (2012).
27
“was a part of our heritage.” Id. at 126. And beyond its
historical roots, the freedom to travel abroad retained
crucial importance in the modern world: “Travel
abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of
the individual as the choice of what he eats, or wears, or
reads. Freedom of movement is basic in our scheme of
values.” Id. The Court further acknowledged the “social value[]” of international travel, acknowledging that
travel promotes education and serves purposes “close
to the core of personal life—marriage, reuniting families, spending hours with old friends.” Id. (quotation
marks omitted).
International travel is especially important for lawful permanent residents. For many permanent residents, losing the ability to travel means permanent
separation from their family: Family abroad may be
unable to travel to the United States for health or personal reasons, or unable to obtain a visa.16 Even where
a visa is theoretically available, the wait time may be
enormous: As of June 2019, the wait time for spouses
and minor children of lawful permanent residents is
two years.17 Moreover, a loss of travel deprives lawful
permanent residents of the ability to travel for educational pursuits, business relationships, or religious pilgrimages.
16
For lawful permanent residents, some categories of relatives—e.g., parents—are statutorily ineligible for immigration
based on a family relationship. See 8 U.S.C. §§1151, 1153.
17
See U.S. Department of State, Visa Bulletin for June 2019
(2019). For permanent residents’ unmarried children age twentyone or older, the wait is even longer: twenty-one years for relatives in Mexico, twelve for those in the Philippines, and six for
those in all other countries.
28
*
*
*
In sum, the reading of the stop-time rule adopted
by the Eleventh and Second Circuits creates a nightmarish state of affairs for lawful permanent residents.
Under that reading, a noncitizen who arrived lawfully
in the United States as a child and resided in the United States for his entire life—marrying, raising children,
and establishing a life—could be stripped of his status
and even his eligibility for discretionary relief merely
by traveling to visit family abroad and admitting to a
border agent upon his return that he once smoked marijuana as a teenager—even if he was never arrested or
charged with a crime, and despite the many years living in this country without even the possibility of being
removed on any ground.18 Nothing in the text, structure, or history of the statute indicates that Congress
intended such a harsh result.
18
The risk that a noncitizen will admit to minor, uncharged
criminal activity is far from remote: Law enforcement officers are
specifically trained to question arriving immigrants in order to
elicit confessions. See Hunsucker, Senior Instructor, Federal Law
Enforcement Training Center, Criminal Without Conviction –
Prosecuting the Unconvicted Arriving Alien Under Section
212(a)(2)(A) of the Immigration and Nationality Act, 2 Q. Rev. (2d
ed. 2001), https://tinyurl.com/y3xqobbe (providing “practical advice
to the law enforcement officer on how to obtain an admission of
criminal activity sufficient to support a finding of inadmissibility
under [8 U.S.C. §1182(a)(1)(A)(i)]”). “[A]rriving aliens are often
not … savvy … [and] must answer law enforcement questions to
gain admission to the United States,” making them “much more
likely to confess their criminal acts.” Id. at 1.
29
C. Pegging The Stop-Time Rule To Inadmissibility Or Removability Best Aligns With Congress’s Purposes
Congress in no way intended the stop-time rule to
produce such harsh and anomalous impacts. To the contrary, while the legislative history indicates that Congress has, over the last 60 years, layered additional requirements onto discretionary relief from removal, those
requirements have been designed to address specific issues. And nothing in the history of the Immigration and
Nationality Act (INA) or the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) indicates that Congress intended to discount the years of
meaningful residence that lawful permanent residents
accumulate after committing minor offenses (such as
possession of a small amount of marijuana) for which
Congress specifically exempted them from deportation.
For nearly seven decades, immigration law has
keyed discretionary relief for lawful permanent residents to seven years of lawful residence in the United
States. Even before enactment of the INA, the same
seven-year requirement that persists to this day cabined the Attorney General’s discretion to admit otherwise excludable noncitizens. 8 U.S.C. §136(p) (1946).
Both the INA and IIRIRA retained that same sevenyear requirement for discretionary relief. See Pub. L.
No. 82-414, 66 Stat. 163, 187 (1952); 8 U.S.C. §1229b(a).
In enacting the INA, however, Congress—
concerned that discretionary relief was available “even
though the alien had never been lawfully admitted to
the United States”—added a requirement that the individual be lawfully admitted for permanent residence.
S. Rep. No. 82-1137, at 12 (1952); see also Pub. L. No.
82-414, 66 Stat. at 187. That is, faced with a specific
30
concern (namely, that immigrants were able to secure
relief from removal without ever having resided lawfully), Congress enacted a solution tailored to that concern: It added a requirement that the immigrant be
lawfully admitted for permanent residence.
Similarly, as this Court explained just last Term in
Pereira, in enacting IIRIRA, Congress was motivated
by a very specific concern, namely, that immigrants
were “exploiting administrative delays to ‘buy time’
during which they accumulate periods of continuous
presence.” 138 S. Ct. at 2119 (citing H.R. Rep. No. 104469, pt. 1, at 122 (1996)). To address this concern, Congress again enacted a specific solution: the stop-time
rule. Nothing in the enactment of the stop-time rule
suggests, however, that Congress set out to more dramatically reform the basic seven-year requirement by
depriving lawful permanent residents of full credit for
years or decades of continuous residence, during which
they were unremovable from the United States. To the
contrary, IIRIRA was designed to avoid “punishing
[immigrants] living in the United States legally.” Presidential Statement on Signing the Omnibus Consolidated Appropriations Act 1997, reprinted in 1 Legislative History of the Omnibus Consolidated Appropriations Act of 1997 P.L. 104-208, at 1937 (1997).19
19
Petitioner suggests that Congress may have had a second
concern, namely, that “[t]ime spent in … prison … may count toward the 7 year residency requirement.” S. Rep. No. 104-48, at 2
(1995) quoted in Pet. Br. 7. It is unclear whether this discussion of
“criminal aliens … obtain[ing] U.S. Citizenship” (id.) refers to the
stop-time rule, which plays no part in naturalization, but in any
event, it certainly does not refer to immigrants who, like Jobe, are
not removable during the many years that they continue to live in
this country. See id. at 1 (defining “criminal aliens” as “non-U.S.
citizens residing in the U.S. who commit serious crimes for which
31
Pegging continuous residence to the moment a
permanent resident is chargeable as inadmissible or
removable fully addresses Congress’s gamesmanship
concerns by disconnecting eligibility for discretionary
relief from the administrative process and thereby
eliminating any incentive “to delay proceedings until 7
years have accrued.” H.R. Rep. No. 104-469, pt. 1, at
122.
The Eleventh and Second Circuits’ interpretation
of the stop-time rule, by contrast, cuts off continuous
residence far earlier than necessary to achieve that objective. And in doing so, their reading flouts Congress’s longstanding commitment to fully credit noncitizens for years spent residing as lawful permanent residents. By depriving unremovable lawful permanent
residents of stop-time-rule eligibility without regard
for years, or even decades, of lawful residence, the rule
adopted by the Eleventh and Second Circuits flips
Congress’s clear intent on its head.
they may be deportable” (emphasis added)). As for immigrants
who are rendered removable, to the extent Congress intended to
stop continuous residence from accruing while the immigrant
served time for a deportable offense, Congress achieved that goal
with yet another specific fix: cutting off accrual “when the alien is
convicted of an offense that renders the alien deportable.” H.R.
Conf. Rep. No. 104-828, at 214 (1996) (emphasis added). Tellingly,
this legislative history shows that Congress understood continuous residence to stop accruing upon conviction of a deportable offense, not commission—the opposite of the reading adopted by
the Eleventh Circuit below.
32
CONCLUSION
For these reasons and the reasons stated in Petitioner’s brief, the decision of the Court of Appeals
should be reversed.
Respectfully submitted.
NOAH A. LEVINE
ARI HOLTZBLATT
WILMER CUTLER PICKERING Counsel of Record
AMY C. LISHINSKI*
HALE AND DORR LLP
WILMER CUTLER PICKERING
7 World Trade Center
HALE AND DORR LLP
250 Greenwich Street
1875 Pennsylvania Ave., NW
New York, NY 10007
Washington, DC 20006
(202) 663-6000
ari.holtzblatt@wilmerhale.com
*Admitted to practice only
in Illinois. Supervised by
members of the firm admitted
to the District of Columbia bar.
JULY 2017
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.