Barton v. Barr: Prior offense precluding cancellation of removal need not be the offense of removal
A prior offense that precludes cancellation of removal of a lawful permanent resident need not be the offense of removal, the U.S. Supreme Court held April 23 in Barton v. Barr.
Andre Barton came to the U.S. lawfully when he was 10 years old, and became a long-time lawful permanent resident.
In 1996, which was within seven years of his entry, he committed state aggravated assault and firearms offenses, but was convicted after seven years. In 2007 and 2008, he was convicted of state drug offenses.
In 2016, the Government sought to remove Barton based on the 1996 firearms offense and the 2007 and 2008 drug crimes.
The question in the case was whether the offense that precludes cancellation of removal – the 1996 aggravated assault offense – must be one of the offenses of removal.
The Supreme Court granted cert. to resolve a circuit split.
In a 5-4 opinion based on statutory interpretation, the Court held the offense that precludes cancellation need not be the offense of removal.
As relevant here, in order to be eligible for cancellation of removal, 8 U.S.C. Sec. 1182(a)(2) – known as the “stop time rule” – provides that a lawful permanent resident, during the initial seven years of residence, cannot have committed an offense referred to in the statute that renders him inadmissible to the U.S. or removable.
“In specifying when cancellation of removal would be precluded because of prior criminal activity, Congress struck a balance that considers both the nature of the prior crime and the length of time that the noncitizen has resided in the United States,” the Court said.
“In providing that a noncitizen’s prior crimes (in addition to the offense of removal) can render him ineligible for cancellation of removal, the cancellation-of-removal statute functions like a traditional recidivist sentencing statute,” the Court said. “It is entirely ordinary to look beyond the offense of conviction at criminal sentencing, and it is entirely ordinary to look beyond the offense of removal at the cancellation-of-removal stage in immigration cases.”
“Cancellation of removal is precluded if a noncitizen committed a Sec. 1182(a)(2) offense during the initial seven years of residence, even if (as in Barton’s case) the conviction occurred after the seven years elapsed,” the Court said. “The date of commission of the offense is the key date for purposes of calculating whether the noncitizen committed a Sec. 1182(a)(2) offense during the initial seven years of residence.”
Because Barton committed his offense during the initial seven years of his residence, he is not eligible for cancellation of removal.
“Removal is particularly difficult when it involves someone such as Barton who has spent most of his life in the United States,” the Court concluded. But “Congress may of course amend the law at any time.”
Justice Sotomayor, joined by Justices Ginsburg, Breyer and Kagan, dissented.