Last week, the Supreme Court issued a decision that limited eligibility for Cancellation of Removal. In this post I will discuss the decision and give some guidance on eligibility for Cancellation of Removal. The case is Barton v. Barr.
Facts in Barton v. Barr:
Mr. Barton is an immigrant from Jamaica. He became a lawful permanent resident with his mother in the early 90s. He had an extensive criminal history, including a 1996 conviction for aggravated assault in Georgia. He was also convicted of several other criminal offenses in 2007 and 2008, which led to his placement in removal proceedings.
He conceded removability in immigration court and applied for Cancellation of Removal for Lawful Permanent Residents. The immigration judge denied his application since he did not meet the requirements for relief. He appealed to the Board of Immigration Appeals, which upheld the immigration judge. The Eleventh Circuit did the same reasoning that his 1996 conviction, which was not the basis of his removal proceeding made him ineligible for Cancellation of Removal.
Requirements for Cancellation of Removal for Lawful Permanent Residents:
A lawful permanent resident may apply for Cancellation of Removal for Lawful Permanent Residents must meet the following criteria for relief:
- Be a lawful permanent resident for 5 years
- Reside continuously in the United States for 7 years after a lawful admission in any status
- Must not be convicted of an aggravated felony
There are several disqualifications in the statute, however. One such disqualifying factor is the so-called stop-time rule. The stop-time rules prohibit relief if the immigrant was convicted of a crime which makes him inadmissible or deportable from the United States. Another limitation is the service of the Notice to Appear, which would stop the time from running for continuous residence purposes.
Issues in Barton v. Barr:
The issue in the case was whether the underlying conviction for stop-time rule purposes had to be the basis for removal and whether the conviction had to occur within the initial 7 years of residence.
Justice Kavanaugh delivered the majority opinion. The majority ruled that the Cancellation of Removal statute functions as a traditional recidivist statute, making previous crimes relevant to eligibility. The majority reasoned that prior crimes, in the initial seven years, are relevant, even if the conviction occurred after the seven years elapsed. The main issue for the court was whether the conviction made the immigrant inadmissible. The court ruled that the aggravated assault made him inadmissible and thus ineligible for the Cancellation of Removal.
The majority rejected Barton’s argument that he is eligible for relief since he did not make an application for admission.
Justice Sotomayor delivered the dissent in the case. She argued that the majority conflated inadmissibility and deportability to reach its conclusion. She argued that Barton is eligible for relief since he was not making an application for admission. She argued that since the aggravated assault conviction did not make him removable, he is eligible for Cancellation of Removal.
She added that since Barton was not making an application for admission, then could not be inadmissible and this is eligible for relief.
I agree with the dissent in this case. The majority’s decision that the stop-time rule applies, even when the conviction does not deem the applicant deportable. As to the commission and conviction arguments that the majority makes, I believe the majority was also wrong. The stop-time rule clearly states that it applies in two situations 1) the service of a notice to Appear or 2) commission of a crime that makes an immigrant inadmissible or deportable, whichever occurs earlier. Since Barton was not making an application for admission, and the crime did not make him deportable, then he is eligible for Cancellation of Removal.
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