(Slip Opinion) OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BARTON v. BARR, ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 18–725. Argued November 4, 2019—Decided April 23, 2020
When a lawful permanent resident commits certain serious crimes, the
Government may initiate removal proceedings before an immigration
judge. 8 U. S. C. §1229a. If the lawful permanent resident is found
removable, the immigration judge may cancel removal, but only if the
lawful permanent resident meets strict statutory eligibility requirements. §§1229b(a), 1229b(d)(1)(B).
Over the span of 12 years, lawful permanent resident Andre Barton
was convicted of state crimes, including a firearms offense, drug offenses, and aggravated assault offenses. An Immigration Judge found
him removable based on his state firearms and drug offenses. Barton
applied for cancellation of removal. Among the eligibility requirements, a lawful permanent resident must have “resided in the United
States continuously for 7 years after having been admitted in any status.” §1229b(a)(2). Another provision, the so-called stop-time rule,
provides that a continuous period of residence “shall be deemed to end”
when the lawful permanent resident commits “an offense referred to
in section 1182(a)(2) . . . that renders the alien inadmissible to the
United States under section 1182(a)(2).” §1229b(d)(1)(B). Because
Barton’s aggravated assault offenses were committed within his first
seven years of admission and were covered by §1182(a)(2), the Immigration Judge concluded that Barton was not eligible for cancellation
of removal. The Board of Immigration Appeals and the Eleventh Circuit agreed.
Held: For purposes of cancellation-of-removal eligibility, a §1182(a)(2) offense committed during the initial seven years of residence does not
need to be one of the offenses of removal. Pp. 6–17.
(a) The cancellation-of-removal statute functions like a traditional
2 BARTON v. BARR
Syllabus
recidivist sentencing statute, making a noncitizen’s prior crimes relevant to eligibility for cancellation of removal. The statute’s text clarifies two points relevant here. First, cancellation of removal is precluded when, during the initial seven years of residence, the noncitizen
“committed an offense referred to in section 1182(a)(2),” even if (as in
Barton’s case) the conviction occurred after the seven years elapsed.
Second, the offense must “rende[r] the alien inadmissible” as a result.
For crimes involving moral turpitude, the relevant category here,
§1182(a)(2) provides that a noncitizen is rendered “inadmissible” when
he is convicted of or admits the offense. §1182(a)(2)(A)(i).
As a matter of statutory text and structure, the analysis here is
straightforward. Barton’s aggravated assault offenses were crimes involving moral turpitude and therefore “referred to in section
1182(a)(2).” He committed the offenses during his initial seven years
of residence and was later convicted of the offenses, thereby rendering
him “inadmissible.” Barton was, therefore, ineligible for cancellation
of removal. Pp. 6–10.
(b) Barton’s counterarguments are unpersuasive. First, he claims
that the statute’s structure supports an “offense of removal” approach.
But §1227(a)(2) offenses—not §1182(a)(2) offenses—are ordinarily the
basis for removal of lawful permanent residents. Therefore, Barton’s
structural argument falls apart. If he were correct, the statute presumably would specify offenses “referred to in section 1182(a)(2) or section 1227(a)(2).” By contrast, some other immigration law provisions
do focus only on the offense of removal, and their statutory text and
context support that limitation. See, e.g., §§1226(a), (c)(1)(A),
1252(a)(2)(C).
Second, seizing on the statutory phrase “committed an offense referred to in section 1182(a)(2) . . . that renders the alien inadmissible
to the United States under section 1182(a)(2),” §1229b(d)(1)(B), Barton
argues that a noncitizen is rendered “inadmissible” when actually adjudicated as inadmissible and denied admission to the United States,
something that usually cannot happen to a lawfully admitted noncitizen. But the statutory text employs the term “inadmissibility” as a
status that can result from, e.g., a noncitizen’s (including a lawfully
admitted noncitizen’s) commission of certain offenses listed in
§1182(a)(2). See, e.g., §§1182(a)(2)(A)(i), (B). And Congress has made
that status relevant in several statutory contexts that apply to lawfully admitted noncitizens such as Barton. In those contexts, a noncitizen faces immigration consequences from being convicted of a
§1182(a)(2) offense even though the noncitizen is lawfully admitted
and is not necessarily removable solely because of that offense. See,
e.g., §§1160(a)(1)(C), (a)(3)(B)(ii). Such examples pose a major hurdle
for Barton’s textual argument, and Barton has no persuasive answer.
Cite as: 590 U. S. ____ (2020) 3
Syllabus
Third, Barton argues that the Government’s interpretation treats as
surplusage the phrase “or removable from the United States under
section 1227(a)(2) or 1227(a)(4).” But redundancies are common in
statutory drafting. The Court has often recognized that sometimes the
better overall reading of a statute contains some redundancy. And redundancy in one portion of a statute is not a license to rewrite or eviscerate another portion of the statute contrary to its text.
Finally, Barton argues alternatively that, even if inadmissibility is
a status, and even if the offense that precludes cancellation of removal
need not be one of the offenses of removal, a noncitizen must at least
have been capable of being charged with a §1182(a)(2) inadmissibility
offense as the basis for removal. Because the cancellation-of-removal
statute is a recidivist statute, however, whether the offense that precludes cancellation of removal was charged or could have been charged
as one of the offenses of removal is irrelevant. Pp. 10–17.
904 F. 3d 1294, affirmed.
KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, ALITO, and GORSUCH, JJ., joined. SOTOMAYOR, J., filed
a dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ.,
joined.
Cite as: 590 U. S. ____ (2020) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–725
_________________
ANDRE MARTELLO BARTON, PETITIONER v.
WILLIAM P. BARR, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[April 23, 2020]
JUSTICE KAVANAUGH delivered the opinion of the Court.
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 de-
2 BARTON v. BARR
Opinion of the Court
spite 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.1 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
——————
1 As the statute makes clear, and as we discuss below, committing a
§1182(a)(2) offense precludes cancellation of removal only if the offense
also “renders” the noncitizen inadmissible. See infra, at 10. Section
1182(a)(2) specifies what that means for each of its enumerated offenses.
For the offense at issue in this case, the noncitizen must also have been
convicted of or admitted the offense.
Cite as: 590 U. S. ____ (2020) 3
Opinion of the Court
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.
I
Federal immigration law governs the admission of
noncitizens to the United States and the deportation of
noncitizens previously admitted. See 8 U. S. C. §§1182(a),
1227(a), 1229a.2 The umbrella statutory term for being
inadmissible or deportable is “removable.” §1229a(e)(2).
A noncitizen who is authorized to live permanently in the
United States is a lawful permanent resident, often known
as a green-card holder. When a lawful permanent resident
commits a crime and is determined by an immigration
judge to be removable because of that crime, the Attorney
General (usually acting through an immigration judge) may
——————
2 This opinion uses the term “noncitizen” as equivalent to the statutory
term “alien.” See
8 U. S. C. §1101(a)(3).
4 BARTON v. BARR
Opinion of the Court
cancel removal. §1229b(a). But the comprehensive immigration law that Congress passed and President Clinton
signed in 1996 tightly cabins eligibility for cancellation of
removal. See Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, 110 Stat. 3009–546, 8 U. S. C.
§1101 note.
For a lawful permanent resident, the cancellation-of-removal statute provides that an immigration judge “may
cancel removal in the case of an alien who is inadmissible
or deportable from the United States if the alien—(1) has
been an alien lawfully admitted for permanent residence for
not less than 5 years, (2) has resided in the United States
continuously for 7 years after having been admitted in any
status, and (3) has not been convicted of any aggravated felony.” §1229b(a).3
The statute imposes one other requirement known as the
“stop-time rule.” As relevant here, the statute provides that
a lawful permanent resident, during the initial seven years
of residence, also cannot have committed “an offense referred to in section 1182(a)(2) of this title that renders the
alien inadmissible to the United States under section
1182(a)(2) of this title or removable from the United States
under section 1227(a)(2) or 1227(a)(4) of this title.”
§1229b(d)(1)(B).
Andre Barton is a Jamaican national and a lawful permanent resident of the United States. In 1996, he was convicted in a Georgia court of a firearms offense stemming
from an incident where Barton and a friend shot up the
house of Barton’s ex-girlfriend. In separate proceedings in
2007 and 2008, he was convicted in Georgia courts of state
drug offenses. One case involved methamphetamine, and
the other involved cocaine and marijuana.
——————
3 The immigration laws impose a similar but even stricter set of eligi-
bility requirements for noncitizens who are not lawful permanent residents. §1229b(b).
Cite as: 590 U. S. ____ (2020) 5
Opinion of the Court
In 2016, the U. S. Government charged Barton with deportability under 8 U. S. C. §1227(a)(2) based on the 1996
firearms offense and the 2007 and 2008 drug crimes. See
§§1227(a)(2)(B)(i), (C). Barton conceded that he was removable based on his criminal convictions for the firearms offense and drug offenses, and an Immigration Judge found
him removable.
Barton applied for cancellation of removal. All agree that
Barton meets two of the eligibility requirements for cancellation of removal. He has been a lawful permanent resident
for more than five years. And he has not been convicted of
an “aggravated felony,” as defined by the immigration laws.
The Immigration Judge concluded, however, that Barton
had committed an offense listed in §1182(a)(2) during his
initial seven years of residence. In 1996, 61⁄2 years after his
admission to this country, Barton committed aggravated
assault offenses for which he was later convicted in a Georgia court. The Immigration Judge concluded that those aggravated assault offenses were covered by §1182(a)(2) and
that Barton was therefore not eligible for cancellation of
removal.
The Board of Immigration Appeals and the U. S. Court of
Appeals for the Eleventh Circuit likewise concluded that
Barton was not eligible for cancellation of removal. Barton
v. United States Atty. Gen.,
904 F. 3d 1294, 1302 (2018).
The key question was whether the offense that precludes
cancellation of removal (here, Barton’s 1996 aggravated
assault offenses) must also be one of the offenses of
removal.4 The Board of Immigration Appeals has long
interpreted the statute to mean that “an alien need not
actually be charged and found inadmissible or removable
on the applicable ground in order for the criminal conduct
——————
4 The term “offense of removal” describes the offense that was the
ground on which the immigration judge, at the removal proceeding,
found the noncitizen removable.
6 BARTON v. BARR
Opinion of the Court
in question to terminate continuous residence in this
country” and preclude cancellation of removal. Jurado-Delgado, 24 I. & N. Dec., at 31. In this case, the Eleventh
Circuit likewise indicated that the §1182(a)(2) offense that
precludes cancellation of removal need not be one of the
offenses of removal. 904 F. 3d, at 1299–1300. And the
Second, Third, and Fifth Circuits have similarly construed
the statute. See Heredia v. Sessions,
865 F. 3d 60, 68 (CA2
2017); Ardon v. Attorney General of United States,
449 Fed.
Appx. 116, 118 (CA3 2011); Calix v. Lynch,
784 F. 3d 1000,
1011 (CA5 2015).
But in 2018, the Ninth Circuit disagreed with those
courts and with the BIA. The Ninth Circuit ruled that a
lawful permanent resident’s commission of an offense listed
in §1182(a)(2) makes the noncitizen ineligible for
cancellation of removal only if that offense was one of the
offenses of removal. Nguyen v. Sessions,
901 F. 3d 1093,
1097 (2018). Under the Ninth Circuit’s approach, Barton
would have been eligible for cancellation of removal because
his §1182(a)(2) offenses (his 1996 aggravated assault
offenses) were not among the offenses of removal (his 1996
firearms offense and his 2007 and 2008 drug crimes).
In light of the division in the Courts of Appeals over how
to interpret this statute, we granted certiorari.
587 U. S.
___ (2019).
II
A
Under the immigration laws, when a noncitizen has committed a serious crime, the U. S. Government may seek to
remove that noncitizen by initiating removal proceedings
before an immigration judge. If the immigration judge determines that the noncitizen is removable, the immigration
judge nonetheless has discretion to cancel removal. But the
immigration laws impose strict eligibility requirements for
cancellation of removal. To reiterate, a lawful permanent
Cite as: 590 U. S. ____ (2020) 7
Opinion of the Court
resident such as Barton who has been found removable because of criminal activity is eligible for cancellation of removal “if the alien—(1) has been an alien lawfully admitted
for permanent residence for not less than 5 years, (2) has
resided in the United States continuously for 7 years after
having been admitted in any status, and (3) has not been
convicted of any aggravated felony.” §1229b(a).
To be eligible for cancellation of removal, the lawful permanent resident, during the initial seven years of residence
after admission, also must not have committed “an offense
referred to in section 1182(a)(2) of this title that renders the
alien inadmissible to the United States under section
1182(a)(2) of this title or removable from the United States
under section 1227(a)(2) or 1227(a)(4) of this title.”
§1229b(d)(1)(B).
The law therefore fashions two distinct ways in which a
lawful permanent resident’s prior crimes may preclude cancellation of removal.
The law precludes cancellation of removal if the lawful
permanent resident has been convicted of an “aggravated
felony” at any time. The statutory list of aggravated felonies is long: murder, rape, drug trafficking, firearms trafficking, obstruction of justice, treason, gambling, human
trafficking, and tax evasion, among many other crimes.
§§1101(a)(43)(A)–(U).
In addition, the law precludes cancellation of removal if
the lawful permanent resident committed certain other serious crimes during the initial seven years of residence. The
law defines those offenses by cross-referencing §1182(a)(2),
which specifies the offenses that can render a noncitizen
“inadmissible” to the United States. Section 1182(a)(2) includes “crime[s] involving moral turpitude,” which is a general category that covers a wide variety of crimes. Section
1182(a)(2) also expressly encompasses various violations of
drug laws, prostitution, money laundering, and certain
DUIs involving personal injury, among other crimes.
8 BARTON v. BARR
Opinion of the Court
§§1182(a)(2)(A)(i), (C), (D), (E), (I); see §1101(h).
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. If a lawful permanent resident has been
convicted at any time of certain crimes (what the immigration laws refer to as an “aggravated felony”), then the
noncitizen is not eligible for cancellation of removal. If during the initial 7-year period of residence, a lawful permanent resident committed certain other offenses referred to
in §1182(a)(2), then the noncitizen likewise is not eligible
for cancellation of removal.
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. In
an ordinary criminal case, a defendant may be convicted of
a particular criminal offense. And at sentencing, the defendant’s other criminal offenses may be relevant. So too
in the immigration removal context. A noncitizen may be
found removable based on a certain criminal offense. In applying for cancellation of removal, the noncitizen must detail his entire criminal record on Form EOIR–42A. An immigration judge then must determine whether the
noncitizen has been convicted of an aggravated felony at
any time or has committed a §1182(a)(2) offense during the
initial seven years of residence. It is entirely ordinary to
look beyond the offense of conviction at criminal sentencing,
and it is likewise entirely ordinary to look beyond the offense of removal at the cancellation-of-removal stage in immigration cases.5
——————
5 If the offense of removal itself was an aggravated felony or was an
offense listed in §1182(a)(2) that was committed during the initial seven
years of residence, then the offense of removal alone precludes cancellation of removal, regardless of whether the noncitizen has an additional
Cite as: 590 U. S. ____ (2020) 9
Opinion of the Court
It is not surprising, moreover, that Congress required immigration judges considering cancellation of removal to
look in part at whether the noncitizen has committed any
offenses listed in §1182(a)(2). The offenses listed in
§1182(a)(2) help determine whether a noncitizen should be
admitted to the United States. Under the cancellation-of-removal statute, immigration judges must look at that
same category of offenses to determine whether, after a previously admitted noncitizen has been determined to be deportable, the noncitizen should nonetheless be allowed to
remain in the United States. If a crime is serious enough
to deny admission to a noncitizen, the crime can also be serious enough to preclude cancellation of removal, at least if
committed during the initial seven years of residence.
Importantly, the text of the cancellation-of-removal statute does not simply say that cancellation of removal is precluded when, during the initial seven years of residence, the
noncitizen was convicted of an offense referred to in
§1182(a)(2). Rather, the text says that cancellation of removal is precluded when, during the initial seven years of
residence, the noncitizen “committed an offense referred to
in section 1182(a)(2) . . . that renders the alien inadmissible.” §1229b(d)(1)(B). That language clarifies two points of
relevance here.
First, cancellation of removal is precluded if a noncitizen
committed a §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. In other words,
as Congress specified in the statute and as the BIA and the
Courts of Appeals have recognized, the date of commission
of the offense is the key date for purposes of calculating
whether the noncitizen committed a §1182(a)(2) offense
during the initial seven years of residence. See In re Perez,
——————
record of prior crimes.
10 BARTON v. BARR
Opinion of the Court
22 I. & N. Dec. 689, 693–694 (BIA 1999) (date of commission is controlling date); see also Heredia, 865 F. 3d, at 70–
71 (“the date of the commission of the offense governs the
computation of a lawful permanent resident’s continuous
residency in the United States”); Calix,
784 F. 3d, at 1012
(“Once he was convicted of the offense” referred to in
§1182(a)(2), “he was rendered inadmissible to the United
States. His accrual of continuous residence was halted as
of the date he committed that offense”).
Second, the text of the law requires that the noncitizen
be rendered “inadmissible” as a result of the offense. For
crimes involving moral turpitude, which is the relevant category of §1182(a)(2) offenses here, §1182(a)(2) provides that
a noncitizen is rendered “inadmissible” when he is convicted of or admits the offense. §1182(a)(2)(A)(i). As the
Eleventh Circuit explained, “while only commission is required at step one, conviction (or admission) is required at
step two.”
904 F. 3d, at 1301.
In this case, Barton’s 1996 state aggravated assault offenses were crimes involving moral turpitude and therefore
“referred to in section 1182(a)(2).” Barton committed those
offenses during his initial seven years of residence. He was
later convicted of the offenses in a Georgia court and
thereby rendered “inadmissible.” Therefore, Barton was ineligible for cancellation of removal.
As a matter of statutory text and structure, that analysis
is straightforward. The Board of Immigration Appeals has
long interpreted the statute that way. See Jurado-Delgado,
24 I. & N. Dec., at 31. And except for the Ninth Circuit, all
of the Courts of Appeals to consider the question have interpreted the statute that way.
B
Barton pushes back on that straightforward statutory interpretation and the longstanding position of the Board of
Cite as: 590 U. S. ____ (2020) 11
Opinion of the Court
Immigration Appeals. Barton says that he may not be denied cancellation of removal based on his 1996 aggravated
assault offenses because those offenses were not among the
offenses of removal found by the Immigration Judge in Barton’s removal proceeding. Rather, his 1996 firearms offense
and his 2007 and 2008 drug offenses were the offenses of
removal.
To succinctly summarize the parties’ different positions
(with the difference highlighted in italics below): The Government would preclude cancellation of removal under this
provision if the lawful permanent resident committed a
§1182(a)(2) offense during the initial seven years of residence. Barton would preclude cancellation of removal under this provision if the lawful permanent resident committed a §1182(a)(2) offense during the initial seven years of
residence and if that §1182(a)(2) offense was one of the offenses of removal in the noncitizen’s removal proceeding.
To support his “offense of removal” approach, Barton advances three different arguments. A caution to the reader:
These arguments are not easy to unpack.
First, according to Barton, the statute’s overall structure
with respect to removal proceedings demonstrates that a
§1182(a)(2) offense may preclude cancellation of removal
only if that §1182(a)(2) offense was one of the offenses of
removal. We disagree. In removal proceedings, a lawful
permanent resident (such as Barton) may be found “deportable” based on deportability offenses listed in §1227(a)(2).
A noncitizen who has not previously been admitted may be
found “inadmissible” based on inadmissibility offenses
listed in §1182(a)(2). See §§1182(a), 1227(a), 1229a(e)(2).
Importantly, then, §1227(a)(2) offenses—not §1182(a)(2) offenses—are typically the basis for removal of lawful permanent residents.
Because the offense of removal for lawful permanent residents is ordinarily a §1227(a)(2) offense, Barton’s structural argument falls apart. If Barton were correct that this
12 BARTON v. BARR
Opinion of the Court
aspect of the cancellation-of-removal statute focused only
on the offense of removal, the statute presumably would
specify offenses “referred to in section 1182(a)(2) or section
1227(a)(2).” So why does the statute identify only offenses
“referred to in section 1182(a)(2)”? Barton has no good answer. At oral argument, when directly asked that question,
Barton’s able counsel forthrightly acknowledged: “It’s a little hard to explain.” Tr. of Oral Arg. 27.
This point is the Achilles’ heel of Barton’s structural argument. As we see it, Barton cannot explain the omission
of §1227(a)(2) offenses in the “referred to” clause for a simple reason: Barton’s interpretation of the statute is incorrect. Properly read, this is not simply an “offense of removal” statute that looks only at whether the offense of
removal was committed during the initial seven years of
residence. Rather, this is a recidivist statute that uses
§1182(a)(2) offenses as a shorthand cross-reference for a
category of offenses that will preclude cancellation of removal if committed during the initial seven years of
residence.
By contrast to this cancellation-of-removal provision,
some other provisions of the immigration laws do focus only
on the offense of removal—for example, provisions governing mandatory detention and jurisdiction. See §§1226(a),
(c)(1)(A), (B), 1252(a)(2)(C). But the statutory text and context of those provisions support that limitation. Those provisions use the phrase “inadmissible by reason of ” a
§1182(a)(2) offense, “deportable by reason of ” a §1227(a)(2)
offense, or “removable by reason of ” a §1182(a)(2) or
§1227(a)(2) offense. And the provisions make contextual
sense only if the offense justifying detention or denying jurisdiction is one of the offenses of removal. The cancellation-of-removal statute does not employ similar language.
Second, moving from overall structure to precise text,
Barton seizes on the statutory phrase “committed an offense referred to in section 1182(a)(2) . . . that renders the
Cite as: 590 U. S. ____ (2020) 13
Opinion of the Court
alien inadmissible to the United States under section
1182(a)(2).” §1229b(d)(1)(B) (emphasis added). According
to Barton, conviction of an offense listed in §1182(a)(2)—for
example, conviction in state court of a crime involving
moral turpitude—does not itself render the noncitizen “inadmissible.” He argues that a noncitizen is not rendered
“inadmissible” unless and until the noncitizen is actually
adjudicated as inadmissible and denied admission to the
United States. And he further contends that a lawfully admitted noncitizen usually cannot be removed from the
United States on the basis of inadmissibility. As Barton
puts it (and the dissent echoes the point), how can a lawfully admitted noncitizen be found inadmissible when he
has already been lawfully admitted?
As a matter of common parlance alone, that argument
would of course carry some force. But the argument fails
because it disregards the statutory text, which employs the
term “inadmissibility” as a status that can result from, for
example, a noncitizen’s (including a lawfully admitted
noncitizen’s) commission of certain offenses listed in
§1182(a)(2).
For example, as relevant here, §1182(a)(2) flatly says that
a noncitizen such as Barton who commits a crime involving
moral turpitude and is convicted of that offense “is inadmissible.” §1182(a)(2)(A)(i). Full stop. Similarly, a noncitizen
who has two or more convictions, together resulting in aggregate sentences of at least five years, “is inadmissible.”
§1182(a)(2)(B). A noncitizen who a consular officer or the
Attorney General knows or has reason to believe is a drug
trafficker “is inadmissible.” §1182(a)(2)(C)(i). A noncitizen
who receives the proceeds of prostitution within 10 years of
applying for admission “is inadmissible.” §1182(a)(2)(D)(ii).
The list goes on. See, e.g., §§1182(a)(2)(C)(ii)–(E), (G)–(I).
Those provisions do not say that a noncitizen will become
inadmissible if the noncitizen is found inadmissible in a
subsequent immigration removal proceeding. Instead,
14 BARTON v. BARR
Opinion of the Court
those provisions say that the noncitizen “is inadmissible.”
Congress has in turn made that status—inadmissibility
because of conviction or other proof of commission of
§1182(a)(2) offenses—relevant in several statutory contexts
that apply to lawfully admitted noncitizens such as Barton.
Those contexts include adjustment to permanent resident
status; protection from removal because of temporary protected status; termination of temporary resident status;
and here cancellation of removal. See, e.g., §§1160(a)(1)(C),
(a)(3)(B)(ii), 1254a(a)(1)(A), (c)(1)(A)(iii), 1255(a), (l)(2). In
those contexts, the noncitizen faces immigration consequences from being convicted of a §1182(a)(2) offense even
though the noncitizen is lawfully admitted and is not necessarily removable solely because of that offense.
Consider how those other proceedings work. A lawfully
admitted noncitizen who is convicted of an offense listed in
§1182(a)(2) is typically not removable from the United
States on that basis (recall that a lawfully admitted noncitizen is ordinarily removable only for commission of a
§1227(a)(2) offense). But the noncitizen is “inadmissible”
because of the §1182(a)(2) offense and for that reason may
not be able to obtain adjustment to permanent resident status. §§1255(a), (l)(2). So too, a lawfully admitted noncitizen
who is convicted of an offense listed in §1182(a)(2) is “inadmissible” and for that reason may not be able to obtain temporary protected status. §§1254a(a)(1)(A), (c)(1)(A)(iii). A
lawfully admitted noncitizen who is a temporary resident
and is convicted of a §1182(a)(2) offense is “inadmissible”
and for that reason may lose temporary resident status.
§§1160(a)(1)(C), (a)(3)(B)(ii).
Those statutory examples pose a major hurdle for Barton’s textual argument. The examples demonstrate that
Congress has employed the concept of “inadmissibility” as
a status in a variety of statutes similar to the cancellation-of-removal statute, including for lawfully admitted noncitizens. Barton has no persuasive answer to those examples.
Cite as: 590 U. S. ____ (2020) 15
Opinion of the Court
Barton tries to say that some of those other statutes involve
a noncitizen who, although already admitted to the United
States, is nonetheless seeking “constructive admission.”
Reply Brief 12; Tr. of Oral Arg. 11. But that ginned-up label
does not avoid the problem. Put simply, those other statutes show that lawfully admitted noncitizens who are, for
example, convicted of §1182(a)(2) crimes are “inadmissible”
and in turn may suffer certain immigration consequences,
even though those lawfully admitted noncitizens cannot
necessarily be removed solely because of those §1182(a)(2)
offenses.
The same is true here. A lawfully admitted noncitizen
who was convicted of a crime involving moral turpitude during his initial seven years of residence is “inadmissible” and
for that reason is ineligible for cancellation of removal.
In advancing his structural and textual arguments, Barton insists that his interpretation of the statute reflects congressional intent regarding cancellation of removal. But if
Congress intended that only the offense of removal would
preclude cancellation of removal under the 7-year residence
provision, it is unlikely that Congress would have employed
such a convoluted way to express that intent. Barton cannot explain why, if his view of Congress’ intent is correct,
the statute does not simply say something like: “The alien
is not eligible for cancellation of removal if the offense of
removal was committed during the alien’s initial seven
years of residence.”
Third, on a different textual tack, Barton argues that the
Government’s interpretation cannot be correct because the
Government would treat as surplusage the phrase “or removable from the United States under section 1227(a)(2) or
1227(a)(4) of this title.” Recall that the statute, as relevant
here, provides that a lawful permanent resident is not eligible for cancellation of removal if, during the initial seven
years of residence, he committed “an offense referred to in
16 BARTON v. BARR
Opinion of the Court
section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of
this title or removable from the United States under section
1227(a)(2) or 1227(a)(4) of this title.” §1229b(d)(1)(B) (emphasis added).
To begin with, all agree that under either side’s interpretation, the reference to §1227(a)(4)—as distinct from
§1227(a)(2)—is redundant surplusage. See §1229b(c)(4);
Brief for Petitioner 32–33 & n. 7. Under the Government’s
interpretation, it is true that the reference to §1227(a)(2)
also appears to be redundant surplusage. Any offense that
is both referred to in §1182(a)(2) and an offense that would
render the noncitizen deportable under §1227(a)(2) would
also render the noncitizen inadmissible under §1182(a)(2).
But redundancies are common in statutory drafting—sometimes in a congressional effort to be doubly sure, sometimes
because of congressional inadvertence or lack of foresight,
or sometimes simply because of the shortcomings of human
communication. The Court has often recognized: “Sometimes the better overall reading of the statute contains
some redundancy.” Rimini Street, Inc. v. Oracle USA, Inc.,
586 U. S. ___, ___ (2019) (slip op., at 11); see Wisconsin Central Ltd. v. United States,
585 U. S. ___, ___ (2018) (slip op.,
at 7); Marx v. General Revenue Corp.,
568 U. S. 371, 385
(2013); Lamie v. United States Trustee,
540 U. S. 526, 536
(2004). So it is here. Most importantly for present purposes, we do not see why the redundant statutory reference
to §1227(a)(2) should cause us to entirely rewrite §1229b so
that a noncitizen’s commission of an offense referred to in
§1182(a)(2) would preclude cancellation of removal only if it
is also the offense of removal. Redundancy in one portion
of a statute is not a license to rewrite or eviscerate another
portion of the statute contrary to its text, as Barton would
have us do.
One final point: Barton argues in the alternative that
even if inadmissibility is a status, and even if the offense
Cite as: 590 U. S. ____ (2020) 17
Opinion of the Court
that precludes cancellation of removal need not be one of
the offenses of removal, the noncitizen must at least have
been capable of being charged with a §1182(a)(2) inadmissibility offense as the basis for removal. The dissent seizes
on this argument as well. But as we have explained, this
cancellation-of-removal statute is a recidivist statute that
precludes cancellation of removal if the noncitizen has committed an offense listed in §1182(a)(2) during the initial
seven years of residence. Whether the offense that precludes cancellation of removal was charged or could have
been charged as one of the offenses of removal is irrelevant
to that analysis.
…
Removal of a lawful permanent resident from the United
States is a wrenching process, especially in light of the consequences for family members. Removal is particularly difficult when it involves someone such as Barton who has
spent most of his life in the United States. Congress made
a choice, however, to authorize removal of noncitizens—
even lawful permanent residents—who have committed
certain serious crimes. And Congress also made a choice to
categorically preclude cancellation of removal for noncitizens who have substantial criminal records. Congress may
of course amend the law at any time. In the meantime, the
Court is constrained to apply the law as enacted by Congress. Here, as the BIA explained in its 2006 Jurado-Delgado decision, and as the Second, Third, Fifth, and Eleventh Circuits have indicated, the immigration laws enacted
by Congress do not allow cancellation of removal when a
lawful permanent resident has amassed a criminal record
of this kind.
We affirm the judgment of the U. S. Court of Appeals for
the Eleventh Circuit.
It is so ordered.
Cite as: 590 U. S. ____ (2020) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–725
_________________
ANDRE MARTELLO BARTON, PETITIONER v.
WILLIAM P. BARR, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[April 23, 2020]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG,
JUSTICE BREYER, and JUSTICE KAGAN join, dissenting.
The stop-time rule ends a noncitizen’s period of continuous residence, making him or her ineligible for certain relief
from removal. But to trigger the rule, it takes more than
commission of a specified criminal offense: The offense
must also render a noncitizen either “inadmissible” or “deportable.” In applying these important limitations, the rule
directly references the two-track nature of the Immigration
and Nationality Act (INA), a statute that has long distinguished between noncitizens seeking admission and those
already admitted. Inadmissibility, of course, pertains to
noncitizens seeking admission; deportability relates to
noncitizens already admitted but removable.
The majority errs by conflating these two terms. It concludes that the term “inadmissible,” for the purposes of the
stop-time rule, refers to a status that a noncitizen could acquire even if he or she is not seeking admission. Under this
logic, petitioner Andre Barton is inadmissible yet, at the
same time, lawfully admitted. Neither the express language of the statute nor any interpretative canons support
this paradox; Barton cannot and should not be considered
inadmissible for purposes of the stop-time rule because he
has already been admitted to the country. Thus, for the
2 BARTON v. BARR
SOTOMAYOR, J., dissenting
stop-time rule to render Barton ineligible for relief from removal, the Government must show that he committed an
offense that made him deportable. Because the Government cannot meet that burden, Barton should prevail.
I respectfully dissent.
I
A
Cancellation of removal is a form of immigration relief
available to lawful permanent residents (LPRs) and other
noncitizens, including those who have never been lawfully
admitted. 8 U. S. C. §1229b. To obtain this relief, both
groups must continuously reside in the United States for a
certain amount of time. §1229b(a)(2) (seven years for
LPRs); §1229b(b)(1)(A) (10 years for non-LPR noncitizens).
The stop-time rule ends a noncitizen’s period of continuous residence (1) when the noncitizen “has committed an
offense referred to in section 1182(a)(2) of this title” that
either (2) “renders” the noncitizen “inadmissible to the
United States under section 1182(a)(2) of this title” or (3)
renders the noncitizen “removable from the United States
under section 1227(a)(2) or 1227(a)(4) of this title.”
§1229b(d)(1). The second clause directly invokes grounds of
inadmissibility; the third clause, although using the term
“removable,” directly invokes grounds of deportability. See
§1227(a) (specifying “[c]lasses of deportable aliens”).1 Both
the second and the third clauses are cabined by the first: In
addition to rendering a noncitizen either inadmissible or
deportable, the offense must also be one “referred to” in
§1182(a)(2). That provision includes some—but not all—of
the grounds of deportability in §1227.
This distinction between “inadmissible” and “deportable”
matters. Indeed, both are terms of art, so it is critical to
——————
1 Because the third clause refers to grounds of deportability, the Gov-
ernment appears to agree that the terms “removable” and “deportable”
are interchangeable. See Brief for Respondent 21–22.
Cite as: 590 U. S. ____ (2020) 3
SOTOMAYOR, J., dissenting
understand their histories and their attached meaning over
time. See INS v. St. Cyr, 533 U. S. 289, 312 n. 35 (2001)
(noting that “ ‘[w]here Congress borrows terms of art,’ ” with
settled meaning, it “ ‘presumably knows and adopts the
cluster of ideas that were attached to each borrowed word’ ”
(quoting Morissette v. United States,
342 U. S. 246, 263
(1952))).
Until Congress passed the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA), noncitizens seeking physical entry were placed in “ ‘exclusion proceeding[s],’ ” while those already physically present were
placed in “ ‘deportation proceeding[s].’ ” Judulang v.
Holder,
565 U. S. 42, 45 (2011). Although the grounds for
exclusion and deportation—and the procedures applying to
each—evolved over time, the immigration laws retained a
two-track system; different procedures and processes applied to noncitizens who were deportable and noncitizens
who were excludable. Brief for Immigration Law Professors
as Amici Curiae 3–8.
IIRIRA changed the proceedings and some of the language. All noncitizens are now channeled into “ ‘removal
proceeding[s],’ ” and noncitizens previously labeled “excludable” are now labeled “ ‘inadmissible.’ ” Judulang,
565
U. S., at 46. IIRIRA also altered when a noncitizen faces
grounds of inadmissibility, formerly exclusion: Rather than
focusing on whether a noncitizen had physically entered the
country, the statute now asks whether the noncitizen had
been lawfully admitted, in any status, to the country. See
§§1101(a)(13)(A), 1182(a).
Still, the immigration laws have retained their two-track
structure. Inadmissibility and deportability remain separate concepts, triggered by different grounds. With few exceptions, the grounds for inadmissibility are broader than
those for deportability. Compare §1182(a)(2)(A)(i)(I) with
§1227(a)(2)(A)(i) (reflecting different treatment for crimes
involving moral turpitude). Further, while a noncitizen
4 BARTON v. BARR
SOTOMAYOR, J., dissenting
charged with inadmissibility bears the ultimate burden to
show that he is admissible, the Government bears the burden of demonstrating that a noncitizen is deportable.
§§1229a(c)(2), (c)(3).
Whether a noncitizen is charged with inadmissibility or
deportability also affects what the noncitizen or the Government must show to carry their respective burdens. A
criminal ground for inadmissibility can be made out by
showing either that the noncitizen admitted to conduct
meeting the elements of a crime or that she was actually
convicted of an offense. See, e.g., Pazcoguin v. Radcliffe,
292 F. 3d 1209, 1213–1215 (CA9 2002) (noncitizen inadmissible because he admitted to health officer that he smoked
marijuana in his youth); see also §1182(a)(2)(A). By contrast, most criminal grounds for deportability can be established only through convictions. See §§1227(a)(2)(A)(i)–(v),
(a)(2)(B)(i).
Finally, the substantive standards for cancellation of removal are also less stringent for a subset of deportable
noncitizens: LPRs like Barton. Among other things, while
an otherwise-eligible LPR must merely demonstrate that
he or she deserves the relief as a matter of discretion, see
In re C-V-T-,
22 I. & N. Dec. 7, 10–11 (BIA 1998), non-LPRs
must demonstrate exceptional and extremely unusual
hardship to an LPR or citizen parent, spouse, or child,
§1229b(b)(1)(D).
These separate categories and procedures—treating deportable noncitizens more generously than inadmissible
noncitizens, and treating one group of deportable noncitizens (LPRs) the most generously of all—stem from one animating principle. All noncitizens in this country are entitled to certain rights and protections, but the protections
afforded to previously admitted noncitizens and LPRs are
particularly strong. See Demore v. Kim,
538 U. S. 510, 543–
544 (2003) (Souter, J., concurring in part and dissenting in
Cite as: 590 U. S. ____ (2020) 5
SOTOMAYOR, J., dissenting
part). Indeed, “[t]he immigration laws give LPRs the opportunity to establish a life permanently in this country by
developing economic, familial, and social ties indistinguishable from those of a citizen.” Id., at 544. Because those
already admitted, like Barton, are often presumed to have
greater connections to the country, the immigration laws
use separate terms and create separate procedures for
noncitizens seeking admission to the country on the one
hand, and those who were previously admitted on the other.
The stop-time rule carries that distinction forward. The
rule specifies how a period of continuous residence ends for
noncitizens who are seeking admission and thus are inadmissible, as well as noncitizens who are already admitted
and thus are deportable. By using separate terms and
grounds for two groups of people, the stop-time rule thus
reflects the two-track dichotomy for inadmissible or deportable noncitizens that pervades the INA.
B
Barton is a longtime lawfully admitted resident of the
United States. He and his mother moved to the United
States from Jamaica when he was about 10 years old. They
both entered legally and, through Barton’s stepfather, soon
adjusted their status to LPRs. When Barton was placed in
removal proceedings, all of his immediate family—his
mother, his children, his fiancee—were living in the United
States. He had not returned to Jamaica in 25 years.
Barton was first arrested in 1996, when he was 17 or 18,
after a friend shot at his ex-girlfriend’s house while he was
present. Both he and his friend were convicted of, among
other things, aggravated assault and possession of a firearm. Barton later testified before an immigration judge
that he was unaware that his friend had a gun or was planning to shoot it.
After attending a boot camp and obtaining his GED, Barton led a law-abiding life for several years. But in the mid-
6 BARTON v. BARR
SOTOMAYOR, J., dissenting
2000s, Barton developed a drug problem and was convicted
twice on possession charges. After attending two drug rehabilitation programs, Barton was never arrested again.
He graduated from college, began running an automobile
repair shop, and became a father to four young children.
Just a few years ago—nearly 10 years after his last arrest—the Government detained Barton and placed him in
removal proceedings. Because he had been lawfully admitted to the country, the Government could not charge him
with any grounds of inadmissibility. Rather, the Government charged, and Barton conceded, that he was deportable
based on prior firearms and drug convictions. (All agree
that Barton’s aggravated-assault offense did not qualify as
a deportable offense under §1227.) Barton then sought cancellation of removal.
Perhaps recognizing that Barton had a strong case for
cancellation of removal on the merits, see C-V-T-, 22 I. & N.
Dec., at 11 (factors such as “family ties within the United
States, residence of long duration in this country (particularly when the inception of residence occurred at a young
age),” and “business ties” all favor a noncitizen seeking cancellation), the Government contended that Barton was categorically ineligible for that relief. It reasoned that Barton’s prior offenses triggered the stop-time rule and that
Barton therefore could not meet the continuous-residence
requirement.
The problem (for the Government) was finding a prior offense that actually triggered the stop-time rule. None of the
offenses that had made Barton deportable—his firearms
and drug convictions—satisfied the stop-time rule’s first
clause because §1182(a)(2) does not “refe[r] to” those offenses. The Government therefore could not argue that
Barton’s firearms and drug offenses ended Barton’s period
of continuous residence under the stop-time rule. As for
Barton’s aggravated-assault offense, it was not a ground for
deportability under §1227(a) and therefore did not render
Cite as: 590 U. S. ____ (2020) 7
SOTOMAYOR, J., dissenting
him deportable under the third clause of the stop-time rule.
So the Government took a different tack: It argued that,
even though Barton had already been admitted (and was
not seeking readmission), his aggravated-assault offense
“render[ed him] inadmissible” under the second clause of
the stop-time rule. That is, although the Government could
not charge Barton with inadmissibility, it relied upon a
ground of inadmissibility to assert that Barton was not entitled to relief from removal.
The Immigration Judge agreed with the Government.
The judge made clear, however, that she would have
granted Barton’s cancellation application had he satisfied
the continuous-residence requirement. The judge cited,
among other things, Barton’s strong family ties, including
his four young children who were all U. S. citizens. The
judge concluded that because “his last arrest was over 10
years ago,” Barton “is clearly rehabilitated.” The judge also
concluded that Barton’s family “relies on him and would
suffer hardship if he were to be deported to Jamaica.” App.
to Pet. for Cert. 36a.
II
Barton makes two arguments to this Court. The Court
focuses on the first—that the stop-time rule will “rende[r]”
a noncitizen inadmissible only if the person is actually adjudicated inadmissible based on the given offense. But
whether Barton is right on that score is irrelevant because
Barton’s second argument—which the Court fails to grapple with meaningfully—is surely correct: At the very least,
an offense cannot “rende[r]” someone inadmissible unless
the Government can legally charge that noncitizen with a
ground of inadmissibility. That is, the stop-time rule is consistent with basic immigration law: A noncitizen who has
already been admitted, and is not seeking readmission, cannot be charged with any ground of inadmissibility and thus
cannot be deemed inadmissible.
8 BARTON v. BARR
SOTOMAYOR, J., dissenting
Because the stop-time rule uses the terms “removable”
(i.e., deportable) and “inadmissible” in the disjunctive, the
Court must analyze the rule against the INA’s historic two-track backdrop. That context confirms that the term “inadmissible” cannot refer to a noncitizen who, like Barton, has
already been admitted and is not seeking readmission. Indeed, the terms “inadmissible” and “deportable” are mutually exclusive in removal proceedings: A noncitizen can be
deemed either inadmissible or deportable, not both.
§1229a(e) (for the purposes of removal statute and
§1229b—governing cancellation of removal—a noncitizen is
“inadmissible under section 1182” if “not admitted to the
United States,” and “deportable under section 1227” if “admitted to the United States”). For the purposes of the stop-time rule, a person is not “inadmissible” unless that person
actually seeks admission, and thus is subject to charges of
inadmissibility.
After all, if the provision applied to those who could hypothetically be rendered inadmissible, it could have said so.
For example, the statute would have said that it applied
when “the alien has committed an offense referred to in section 1182(a)(2) of this title” that either (2) “could render the
alien inadmissible to the United States under section
1182(a)(2) of this title” or (3) could render the noncitizen
“removable [i.e., deportable] from the United States under
section 1227(a)(2) or 1227(a)(4) of this title.”2
——————
2 The Court seems to suggest that the stop-time rule’s tense simply
mirrors §1182(a)(2). See ante, at 13–14. It is true that §1182(a)(2)
speaks in the present tense, stating that a noncitizen “is inadmissible” if
she has been “convicted of ” or “admits having committed” certain offenses. §1182(a)(2)(A)(i). But the Court’s argument does not follow. Section 1182, by its terms, applies only to “[c]lasses of aliens ineligible for
visas or admission.” §1182(a). Because the provision applies only to
noncitizens seeking admission, it is only natural that the clause uses the
present tense to describe when such a noncitizen “is inadmissible.” By
Cite as: 590 U. S. ____ (2020) 9
SOTOMAYOR, J., dissenting
The Government’s reading—that a noncitizen can be inadmissible under the stop-time rule without seeking admission at all—flouts basic statutory-interpretation principles.
Among “the most basic interpretative canons” is “that a
statute should be construed so that effect is given to all its
provisions, so that no part will be inoperative or superfluous, void or insignificant.” Corley v. United States, 556
U. S. 303, 314 (2009) (internal quotation marks and alteration omitted). Were the stop-time rule agnostic to whether
the noncitizen actually seeks admission, then the rule’s
third clause—regarding deportability—would be meaningless. When a noncitizen is “removable”—i.e., deportable—
under §1227 for an offense “referred to” in §1182(a)(2), he
or she is also “inadmissible” for an offense “referred to” in
§1182(a)(2). The third clause has meaning only if inadmissibility and deportability apply, as they always have, to separate groups of noncitizens—noncitizens seeking admission
on the one hand, and noncitizens already admitted on the
other.
To be sure, there are limited exceptions to the general
rule that questions of admissibility apply only to noncitizens seeking formal admission. Noncitizens applying for
adjustment of status must establish admissibility.
§§1255(a), (l)(2). But that is because adjustment of status
is an express proxy for admission: “Congress created the
[process] to enable an alien physically present in the United
States to become an LPR without incurring the expense and
inconvenience of traveling abroad to obtain an immigrant
visa” and then presumably demonstrating admissibility on
return. DHS, U. S. Citizenship and Immigration Services Policy Manual, vol. 7, pt. A, ch. 1 (2020),
https://www.uscis.gov/policy-manual. Far from a “ginned-
——————
contrast, the stop-time rule, under the Government’s and Court’s reading, purports to apply to noncitizens not seeking admission at all—and
who therefore could not possibly be adjudicated inadmissible.
10 BARTON v. BARR
SOTOMAYOR, J., dissenting
up label,” ante, at 15, the term “constructive admission” 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.
Alternatively, the Government also relies on two narrow
provisions of the INA applicable to “[s]pecial agricultural
workers,” 8 U. S. C. §1160(a)(3)(B)(ii), and “certain entrants before January 1, 1982,” §1255a(b)(2)(B). These provisions, it argues, demonstrate that throughout the INA,
inadmissibility is a status untethered to admission. But
these provisions, too, refer to noncitizens seeking adjustment of status. §1160(a)(1) (setting procedures for adjustment of status of certain noncitizens); §1255a(a) (same).3
Even if the Government were correct that these statutes
deem a noncitizen inadmissible outside of an application for
admission, its argument would rise and fall on a few provisions within the expansive INA.4 In any event, neither of
these provisions is similar in structure and purpose to the
stop-time rule. Neither refers to grounds of inadmissibility
and grounds of deportability in tandem. What is more, neither appears to confer or deny relief exclusively in removal
proceedings—where the dichotomy between inadmissibility
and deportability is most important.
——————
3 Indeed, one of the provisions suggests that, outside the context in
which a noncitizen seeks adjustment of status (and thus seeks constructive admission), a noncitizen’s status can be terminated “only upon a determination . . . that the alien is deportable.” §1160(a)(3)(A).
4 The Government also notes that a noncitizen would be deportable
were she inadmissible at entry (or during adjustment of status) but erroneously admitted (or allowed to adjust status). Brief for Respondent
18–19 (citing §1227(a)(1)(A)). But this provision directly undermines the
Government’s reading of the statute. Were inadmissibility a status untethered to admission, a noncitizen inadmissible at the time of entry
would always be inadmissible. But because a noncitizen who was already admitted cannot be adjudicated inadmissible, Congress made erroneous admission a ground of deportability, not inadmissibility.
Cite as: 590 U. S. ____ (2020) 11
SOTOMAYOR, J., dissenting
By contrast, the Government concedes that the term “inadmissible” in the mandatory-detention statute—a provision structurally similar to the stop-time rule—applies only
to noncitizens capable of being charged with inadmissibility. Brief for Respondent 30. That provision specifies, in
relevant part, that the Government “shall take into custody
any alien who—(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2)” or “(C) is
deportable under section 1227(a)(2)(A)(i) . . . on the basis of
an offense for which the alien has been sentence[d] to a
term of imprisonment of at least 1 year.” §1226(c)(1) (footnote omitted).
Although the term “inadmissible” in this context does not
refer to an actual adjudication of inadmissibility, see
Demore, 538 U. S., at 513, 531, the Government accepts
that it must at least refer to a possible charge on a noncitizen seeking admission. Brief for Respondent 30. Otherwise, the statute would subject already-admitted noncitizens—even those who are not deportable for any criminal
offense—to mandatory detention, simply because they occupy the “status” of inadmissibility. This provision’s structure is virtually the same as the stop-time rule: It refers to
grounds of inadmissibility and grounds of deportability separately and applies to a noncitizen in removal proceedings.
Given the similar structure, the stop-time rule should be
read the same as the mandatory-detention provision: to refer to adjudications that are possible rather than impossible. If a noncitizen seeking admission has committed a
crime under §1182(a)(2) and is convicted of or admits to the
offense, that offense “renders” the noncitizen “inadmissible”
because the noncitizen can be charged and found inadmissible based on that crime. But such an offense does not render a noncitizen inadmissible if, like Barton, he or she was
admitted years earlier and does not seek readmission. For
a noncitizen who has already been admitted, Congress
carved out a separate category of offenses in both the stop-
12 BARTON v. BARR
SOTOMAYOR, J., dissenting
time rule and the mandatory-detention provision: here,
those referred to in §1182(a)(2) that render a noncitizen deportable under §§1227(a)(2) and (a)(4).
III
The Court reaches a different result only by contorting
the statutory language and by breezily waving away applicable canons of construction. At various points the Court
seems to ignore the rule’s second and third clauses entirely—clauses that, as mentioned above, distinguish between grounds of inadmissibility and grounds of deportability. The Court insists that the statute “operates like
traditional criminal recidivist laws” because it precludes
cancellation of removal for a noncitizen who “has committed
an offense listed in §1182(a)(2) during the initial seven
years of residence.” Ante, at 2; see also ante, at 7, 8, n. 5,
17.
Had Congress intended for commission of a crime in
§1182(a)(2) alone to trigger the stop-time rule, it would
have said so. In fact, it would have stopped at the rule’s
first clause, which (without more) states the Court’s rule:
that the time of continuous residence stops whenever a
noncitizen “has committed an offense referred to in section
1182(a)(2) of this title.” §1229b(d)(1).
But that reading ignores the rest of what Congress wrote.
Congress specified that it is not enough for a noncitizen to
commit a crime listed in §1182(a)(2); that crime must also
“rende[r] the alien inadmissible to the United States under
section 1182(a)(2) of this title” or “removable from the
United States under section 1227(a)(2) or 1227(a)(4) of this
title.” §1229b(d)(1). 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.
Even when the Court finally discusses the second clause,
“renders the alien inadmissible,” the Court raises more
Cite as: 590 U. S. ____ (2020) 13
SOTOMAYOR, J., dissenting
questions than it answers—and answers questions that it
need not address at all. First, the Court claims, the clause
makes clear that “cancellation of removal is precluded if an
alien committed a §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.” Ante, at
9. Despite the emphasis the Court lays on this point, it is
irrelevant to this case: Barton does not dispute that the
stop-time rule is triggered by the date of commission of a
crime rather than a later date of conviction. Brief for Petitioner 9, n. 4. The question in this case is whether certain
offenses can possibly render Barton inadmissible when he
does not seek admission and has already been admitted—
regardless of whether one looks to the date of commission
or the date of conviction of those offenses.5
Even if this question mattered and were properly before
us, Congress could have made the same point—that the
stop-time rule is triggered by commission of a crime—by
omitting the second and third clauses entirely. It again
could have written what the Court, at various points, seems
to wish it had written: The stop-time rule is triggered whenever a noncitizen “has committed an offense referred to in
section 1182(a)(2) of this title.” The second and third
clauses—which refer to later events, when a noncitizen is
actually “render[ed]” inadmissible or deportable—make the
Court’s aside less plausible, not more.
The Court next insists that the second clause makes clear
that the crime must “rende[r]” the noncitizen “inadmissible”—which, in the Court’s view, requires only that a
noncitizen admit the crime or be convicted of it. Ante, at 10.
——————
5 Courts have split over what event triggers the stop-time rule—com-
mission of the offense or a second, later point at which the offense “render[s]” the noncitizen inadmissible. Brief for Momodoulamin Jobe et al.
as Amici Curiae 12–13. Because this point about the trigger date is neither disputed here nor briefed by either party, the Court’s opinion should
not be read to resolve a Circuit split that is not before this Court.
14 BARTON v. BARR
SOTOMAYOR, J., dissenting
But given the INA’s historic two-track structure, a noncitizen is not “render[ed]” inadmissible when convicted of an
offense that cannot serve as a ground of removal at all. The
Court also fails to clarify why, if conviction or admission
alone renders any noncitizen inadmissible regardless of admission status, Congress chose to add a third clause referring to grounds of deportability.
Indeed, what does the Court do about the canon against
surplusage? The Court does not dispute that its reading
makes the entire third clause of the stop-time rule meaningless. It offers only two rejoinders: (1) that the reference
to subsection (a)(4) in the third clause is superfluous under
either party’s reading, and (2) that a bit of surplusage
makes no difference in any event. Ante, at 15–16. To be
sure, “[s]ometimes the better overall reading of the statute
contains some redundancy.” Rimini Street, Inc. v. Oracle
USA, Inc., 586 U. S. ___, ___ (2019) (slip op., at 11). But the
Court relies on more than just “some redundancy.” It dismisses out of hand one of only three clauses in the stop-time
rule—without regard for the clause’s pedigree or the core
difference between deportability and inadmissibility.
It remains this Court’s “ ‘duty “to give effect, if possible,
to every clause and word of a statute.” ’ ” Duncan v. Walker,
533 U. S. 167, 174 (2001) (quoting United States v.
Menasche,
348 U. S. 528, 538–539 (1955)). It must therefore be “ ‘reluctan[t] to treat statutory terms as surplusage’
in any setting,” 533 U. S., at 174 (quoting Babbitt v. Sweet
Home Chapter, Communities for Great Ore.,
515 U. S. 687,
698 (1995))—especially in this context, where each word
could dictate categorical ineligibility for relief from removal. It also does not matter that, as the Government
points out, §1227(a)(4) did not initially refer to any crimes
cross-referenced in §1182(a)(2). Brief for Respondent 32–
Cite as: 590 U. S. ____ (2020) 15
SOTOMAYOR, J., dissenting
33.6 Congress’ decision to make a noncitizen ineligible for
cancellation based on a to-be-determined class of crimes is
far different from excising and giving no meaning to an entire clause.
…
At bottom, the Court’s interpretation is at odds with the
express words of the statute, with the statute’s overall
structure, and with pertinent canons of statutory construction. It is also at odds with common sense. With virtually
every other provision of the INA, Congress granted preferential treatment to lawfully admitted noncitizens—and
most of all to LPRs like Barton. But because of the Court’s
opinion today, noncitizens who were already admitted to
the country are treated, for the purposes of the stop-time
rule, identically to those who were not—despite Congress’
express references to inadmissibility and deportability.
The result is that, under the Court’s interpretation, an immigration judge may not even consider whether Barton is
entitled to cancellation of removal—because of an offense
that Congress deemed too trivial to allow for Barton’s removal in the first instance. Because the Court’s opinion
does no justice to the INA, let alone to longtime LPRs like
Barton, I respectfully dissent.
——————
6 Barton acknowledges that, even now, the reference to §1227(a)(4)
“does little or no work” for a separate reason: Noncitizens who are deportable under that subsection are ineligible for cancellation of removal.
Brief for Petitioner 33, n. 7. But, according to Barton, there are scenarios
in which the reference to §1227(a)(4) nevertheless “ ‘may . . . not be a redundancy,’ ” ibid., and perhaps for this reason, the Government does not
focus on this argument in its brief.
