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Immigration – Removal Order

By: Derek Hawkins//May 27, 2020//

Immigration – Removal Order

By: Derek Hawkins//May 27, 2020//

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United States Supreme Court

Case Name: Andre Martello Barton v. William P. Barr

Case No.: 18-725

Focus: Immigration – Removal Order

Under the immigration laws, a noncitizen who is authorized to live permanently in the United States is a lawful permanent resident—also commonly known as a green-card holder. But unlike a U. S. citizen, a lawful permanent resident who commits a serious crime may be removed from the United States.

Andre Barton is a Jamaican national and a longtime lawful permanent resident of the United States. During his time in the United States, Barton has been convicted of state crimes on three separate occasions spanning 12 years. The crimes include a firearms offense, drug offenses, and aggravated assault offenses. By law, the firearms offense and the drug offenses each independently rendered Barton eligible for removal from the United States. In September 2016, the U. S. Government sought to remove Barton, and a U. S. Immigration Judge determined that Barton was removable.

Barton applied for cancellation of removal, a form of relief that allows a noncitizen to remain in the United States despite being found removable. The immigration laws authorize an immigration judge to cancel removal, but Congress has established strict eligibility requirements. See 8 U. S. C. §§1229b(a), (d)(1)(B). For a lawful permanent resident such as Barton, the applicant for cancellation of removal (1) must have been a lawful permanent resident for at least five years; (2) must have continuously resided in the United States for at least seven years after lawful admission; (3) must not have been convicted of an aggravated felony as defined in the immigration laws; and (4) during the initial seven years of continuous residence, must not have committed certain other offenses listed in 8 U. S. C. §1182(a)(2). If a lawful permanent resident meets those eligibility requirements, the immigration judge has discretion to (but is not required to) cancel removal and allow the lawful permanent resident to remain in the United States. Under the cancellation-of-removal statute, the immigration judge examines the applicant’s prior crimes, as well as the offense that triggered his removal. If a lawful permanent resident has ever been convicted of an aggravated felony, or has committed an offense listed in §1182(a)(2) during the initial seven years of residence, that criminal record will preclude cancellation of removal. In that way, the statute operates like traditional criminal recidivist laws, which ordinarily authorize or impose greater sanctions on offenders who have committed prior crimes.

In this case, after finding Barton removable based on his state firearms and drug offenses, the Immigration Judge and the Board of Immigration Appeals (BIA) concluded that Barton was not eligible for cancellation of removal. Barton had committed offenses listed in §1182(a)(2) during his initial seven years of residence—namely, his state aggravated assault offenses in 1996. Barton’s 1996 aggravated assault offenses were not the offenses that triggered his removal. But according to the BIA, and contrary to Barton’s argument, the offense that precludes cancellation of removal need not be one of the offenses of removal. In re Jurado Delgado, 24 I. & N. Dec. 29, 31 (BIA 2006). The U. S. Court of Appeals for the Eleventh Circuit agreed with the BIA’s reading of the statute and concluded that Barton was not eligible for cancellation of removal. The Second, Third, and Fifth Circuits have similarly construed the statute; only the Ninth Circuit has disagreed.

Barton argues that the BIA and the Eleventh Circuit misinterpreted the statute. He contends that the §1182(a)(2) offense that precludes cancellation of removal must be one of the offenses of removal. We disagree with Barton, and we affirm the judgment of the U. S. Court of Appeals for the Eleventh Circuit.

Affirmed

Dissenting: SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined.

Concurring:

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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