Today in Barton v. Barr #SCOTUS struggled with two competing theories on Congressional purpose.
At oral arguments, this seemed to play out thematically in two arguments: "Congress wanted to be precise," vs. "Congress wanted to be harsh."
I want to offer a third possible theme.
At oral arguments, this seemed to play out thematically in two arguments: "Congress wanted to be precise," vs. "Congress wanted to be harsh."
I want to offer a third possible theme.
So—when Congress eliminated 212(c) relief in 1996, one reason for doing so was to end a circuit split which allowed some people to become eligible for relief during exclusion/deportation proceedings.
In fact, this fix was the main explanation provided in the legislative history.
In fact, this fix was the main explanation provided in the legislative history.
Of course, when 212(c) was replaced with cancellation of removal, there were other changes; Congress made it harder to win, for one thing. But I think that fix (which I'll expand on in a second), was a key motivator for the stop time rule; which I believe supports the petitioner.
Here's a section from an amicus I helped draft at the Council on an unrelated issue that touches on this "fix" and what Congress was trying to do with the timing rules in 240A(a)—stop people from becoming eligible *during* removal proceedings just because the process is slow.
In Barton, the petitioner says Congress wants like to match like: There's an inadmissibility clock which stops when someone is found inadmissible, and there's a deportability clock which stops when someone is found deportable.
The government says that distinction is artificial.
The government says that distinction is artificial.
I think petitioner's argument gets stronger when you view it through the lens of the "fix"; the purpose is stopping people from becoming eligible through court delay.
But someone who commits an offense that renders them deportable—but not inadmissible—*can't* be put into court!
But someone who commits an offense that renders them deportable—but not inadmissible—*can't* be put into court!
The government wants it to be about harshness; Congress got rid of 212(c) to make relief harder to win.
But Congress didn't mention that! It only discussed curbing delay tactics and preventing people from becoming eligible during court—all of which require court to be possible.
But Congress didn't mention that! It only discussed curbing delay tactics and preventing people from becoming eligible during court—all of which require court to be possible.
This is why my theory supports the petitioner's claim that the stop-time rule shouldn't kick into effect when an LPR commits a crime that could *theoretically* prevent them from reentering in the future, but could not get them deported in the present.
Hopefully the Court agrees!
Hopefully the Court agrees!
