Introduction

On April 23, 2020, the U.S. Supreme Court issued Barton v. Barr, 590 U. S. ___ (2020), where it held that legal permanent residents (LPRs) in removal proceedings might be ineligible for cancellation of removal based on the applicability of the stop-time rule. According to the Court, if an LPR commits an offense considered an inadmissibility ground under INA § 212(a)(2), this could stop the accrual of the requisite seven years of continuous presence needed to establish cancellation eligibility.

Cancellation of Removal

In order to be eligible for cancellation of removal pursuant to INA § 240A, a noncitizen must be an LPR for five years, accrue seven years of continuous presence following an admission into the United States, not have an ”aggravated felony” conviction and not otherwise be subjected to bars listed in INA § 240A(c) (e.g., J-1 exchange visa holders, terrorists). The accrual of seven years of continuous presence can be stopped permanently (known as the stop-time rule) with the issuance of a Notice to Appear or the commission of an offense “referred to in section 212(a)(2),” which would render a noncitizen inadmissible to the United States under section 212(a)(2) or deportable under section 237(a)(2) or (4). See INA § 240(d)(1).

Offences referred to in INA § 212(a)(2) are criminal inadmissibly grounds, which include convictions or admissions crimes involving moral turpitude and controlled substances offences. In addition to being an offense referred to in INA § 212(a)(2), the offense must render a noncitizen either deportable or inadmissible. However, LPRs in removal proceedings are typically subject to deportability grounds of removal under INA § 237 and not inadmissibility grounds under INA § 212. There was a circuit split as to whether LPRs in removal proceedings should be subject to the stop-time rule when they commit an offense referred to in INA § 212(a)(2) regardless whether they are charged as removable under INA § 212(a) (inadmissibility grounds) or INA § 237(a)(2) (deportability grounds).

The Ninth Circuit has held that since LPRs are not seeking admission to the United States, they are not subject to the inadmissibility grounds, and thus any offense that could trigger the stop-time rule cannot render them inadmissible. See Nguyen v. Session, 901 F.3d 1093 (9th Cir. 2018). However, other circuits disagree and have held that LPRs can be rendered either inadmissible or deportable even though they are only subject to deportability grounds in removal proceedings. See Heredia v. Sessions, 865 F. 3d 60, 68 (2nd Cir. 2017); Ardon v. Attorney General of United States, 449 Fed. Appx. 116, 118 (3rd Cir. 2011); Calix v. Lynch, 784 F. 3d 1000, 1011 (5th Cir. 2015). The Supreme Court followed the majority of circuits.

Barton v. Barr

Barton committed an aggravated assault offense in 1996, six and a half years after being admitted to the United States as an LPR and was subsequently convicted of a firearms offense and drug offences. He was placed in removal proceedings in 2016 and charged with deportability grounds of removal based on his firearms and drug convictions. Both the IJ and BIA agreed that Barton met the cancellation of removal requirements of being an LPR for five years and of not having an aggravated felony conviction. However, the IJ and BIA concluded that the 1996 assault conviction was referred to in INA § 212(a)(2) as a CIMT and would have rendered him inadmissible. Even though the assault conviction was not one of the grounds Barton was charged with in removal proceedings, it stopped the accrual of seven years of continuous presence. The BIA, Eleventh Circuit Court of Appeals and eventually the United States Supreme Court agreed.

The Supreme Court found that an LPR (or any noncitizen) who is not seeking admission is still rendered inadmissible for purposes of the stop-time rule if he or she commits an offense enumerated in INA § 212(a)(2). Without much acknowledgment of historical statutory interpretation, Justice Kavanagh summarily concluded that the purpose of INA § 240A(d)(1) is that the stop-time rule applies when LPRs commit an act enumerated in INA § 212(a)(2) even though they are not subject to those grounds of inadmissibility. For a more in-depth analysis of the decision, see the practice alert authored by the Immigrant Legal Resource Center, the National Immigration Project and the Immigrant Defense Project.

Going forward

Practitioners, especially those in the Ninth Circuit, should be aware of how this new ruling will affect their LPR clients seeking cancellation of removal. The commission, or even admission, of an act enumerated in INA § 212(a)(2) now can stop the accrual of the requisite seven years needed to establish continuous presence.

Example: Marta was admitted to the United States in 2010 as an LPR. In 2016, she was convicted of a CIMT, referred to in INA §212(a)(2), for which she was given a seven-month suspended sentence. In 2019, she was arrested and convicted of a deportable offense—not an aggravated felony—committed that same year and she was placed in removal proceedings. Under Barton v. Barr, even though Marta was previously admitted to the United States as an LPR, and not subject to the grounds of inadmissibility in removal proceedings, her prior CIMT stopped the clock of continuous presence as of 2016 because it renders her inadmissible under INA §212(a)(2). She is, therefore, ineligible for cancellation of removal because she does not have seven years of continuous presence.

Example: Jon entered the United States as an LPR in 2005. In 2018 he was arrested and convicted of possession of cocaine. He was charged with the deportation ground based on this controlled substance offense. In 2020, during his first master calendar hearing, the IJ asked Jon about his drug use and he testified that he started using cocaine in 2010. If this admission is considered valid, then the stop-time rule will be triggered because Jon’s admission of cocaine use — even without a conviction — renders him inadmissible under INA § 212(a)(2). Jon will not be able to establish seven years of continuous presence.