Green Card Holder Up for Removal Loses High Court Appeal

(Photo by JACK RODGERS/Courthouse News Service)

WASHINGTON (CN) — Backing the deportation of a Jamaican green card holder in a 5-4 decision, the Supreme Court ruled Thursday that the man’s teenage criminal exploits stopped the clock on his U.S. residency.

The liberal wing of the bench railed against the decision in a scathing dissent, saying the majority’s reading of the Immigration and Nationality Act “is at odds with common sense.”

For the dissenters, the law draws a clear line between removal of immigrants lawfully living in the U.S. and those without residency.

“Those words have meaning — invoking the two-track structure of the INA and the distinction between grounds of inadmissibility and grounds of deportability — and the court cannot simply will them out of existence,” Justice Sonia Sotomayor wrote, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.

At 15 pages, the dissent is nearly the same length as the majority opinion.

The case erupted out of a drive-by shooting that took place nearly a quarter-century ago in Duluth, Georgia. In January 1996, then-18-year-old Andre Martello Barton drove past his ex-girlfriend’s house while a friend stood through the car’s sunroof and opened fire.

Today Barton runs a car-repair shop and is the father of four children, all U.S. citizens. His court defeat Thursday spurred immigration advocacy groups to demand more safeguards for long-term residents.

Justice Brett Kavanaugh wrote for the majority that the Jamaican-born Barton faced a clear standard: The law states that lawfully admitted noncitizens found guilty of a crime “involving moral turpitude” during their initial seven years of residence are “inadmissible” and thus ineligible for cancellation of removal. 

In the final paragraph of his 17-page opinion, Kavanaugh recognized that deportation is a “wrenching process.”

“Removal is particularly difficult when it involves someone such as Barton who has spent most of his life in the United States,” the Trump appointee wrote. “Congress made a choice, however, to authorize removal of noncitizens — even lawful permanent residents — who have committed certain serious crimes.”

Barton had fought for a way around his removal by seeking “constructive admission,” which Kavanaugh slammed as a “ginned-up label.” But Sotomayor schooled the newest member of the bench, arguing the term “expresses precisely how the INA conceives of adjustment of status: an admissions process that occurs inside the United States as opposed to outside of it.”

The Supreme Court heard the case last year, with Jenner Block attorney Adam Unikowsky arguing for Barton and Frederick Liu, assistant to the U.S. solicitor general, for the government.

Kavanaugh called it indisputable that Congress did not intend to let noncitizens who have substantial criminal records cancel their removals. 

Barton was charged with three counts of aggravated assault as well as criminal damage to property and possession of a firearm in commission of a felony. He pleaded guilty to those state charges and was later convicted on separate state drug charges in 2007 and 2008. 

Based on those convictions, the Department of Homeland Security began removal proceedings in 2016.

Arriving in the U.S. on a nonimmigrant tourist visa in 1989, Barton became a lawful permanent resident three years later. Though he admitted that the drug and gun charges made him deportable, Barton asked to remain in the country based on a provision of federal immigration law that gives the attorney general discretion to cancel removal proceedings for certain people. 

To qualify for cancellation of removal, lawful permanent residents must show, among other things, that they have lived in the United States for at least seven years after being admitted and that they have not been convicted of an aggravated felony. 

Barton would normally have met the timing requirement, but Homeland Security argued to an immigration judge that the 1996 drive-by triggered the end of his permanent residency, making him ineligible for cancellation. 

The immigration judge agreed, as did the Board of Immigration Appeals and the 11th Circuit, on the grounds that Barton had committed a crime of moral turpitude that ended his period of U.S. residence and rendered him inadmissible.

But Manuel Vargas, senior counsel for the Immigrant Defense Project, said in an interview that, had the government not taken such an aggressive position in Barton’s case, the judge would have granted the long-term resident permission to continue on with his life in the U.S.

“What this ruling particularly highlights is the need for immigration reform that restores relief for longtime lawful permanent resident immigrants like Mr. Barton so that an immigration judge is allowed to consider all these factors that would make it in the interest of this country to allow him to stay,” Vargas said.

The high court’s majority argued Thursday that the cancellation-of-removal statute functions like a traditional recidivist sentencing statute, weighing a noncitizen’s prior crimes when considering a cancellation of removal.

But Claudia Cubas, litigation director of Capital Area Immigrants’ Rights Coalition, said that such a comparison fails to consider inequity in the criminal justice system.

“It’s divorced from the reality of our removal proceedings but also the way our criminal justice system operates and who ultimately gets convicted under it,” Cubas said in an interview, taking the same stance as Vargas that the ruling heightened the need for urgent reform.

Green card holders convicted of a criminal offense will now be completely ineligible for relief, Cubas explained, with an initial offense no matter how small compounding a secondary offense to send a nonresident into removal proceedings.

Data from the Justice Department clearly outlines the grand scale disparity between criminal prosecutions of white offenders in the U.S. compared with those from minority communities.

“There’s definitely racial disparities there,” Cubas said, explaining that Thursday’s ruling “severely complicates” the job of immigrant defense attorneys who are obligated to advise their clients on the consequences of pleading guilty.

“A small conviction from 10 years ago can come back to haunt you,” Cubas said.

Attorneys weighing the risk of a guilty plea may not be aware of prior offenses that can now trigger removal. Cubas said not all criminal records are available online because some municipalities do not have search portals or may not have transitioned all physical records to online databases.

Charles Roth, director of appellate litigation at the National Immigrant Justice Center, told Courthouse News Service that the Supreme Court not only misinterpreted the Immigration and Nationality Act, but missed the point of the at-issue statute entirely.

“It makes no sense to apply the stop-time rule to permanently cut off accrual of time for someone who has resided here for decades after that offense,” Roth continued. “Why would Congress want to allow Cancellation for someone who committed a recent crime, but to bar relief for someone who committed an offense decades ago?”

Marking the end of the road for Barton, Kavanaugh wrote that it is unlikely that Congress would have employed such a convoluted way of expressing that “only the offense of removal would preclude cancellation of removal under the 7-year residence provision,” if that was indeed its intent.

But Roth, with the National Immigration Justice Center, said the high court ruling punishes nonresidents for decades-old offenses, noting Barton committed his crime nearly 25 years ago, when he was 18.

“Why deport them now, when they’ve made a life here and are raising a family?” Roth asked. “The statute is complicated, no doubt, but this interpretation just doesn’t make sense.”

Last year, House Democrats advanced new legislation titled the New Way Forward Act to do away with certain crime-related grounds of inadmissibility and deportability.

But with the focus on Capitol Hill having dramatically shifted to providing emergency relief during the coronavirus pandemic, the reform bill is not expected to make its way out of committee any time soon.

“Like many other things it’s kind of at a standstill right now,” Vargas said. “But that is really what this decision highlights is needed now to restore rationality and compassion to the current immigration laws.”

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