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A linguistic debate over a seemingly innocuous phrase is raging at the Supreme Court

Ephrat Livni
Lady justice and a US flag at SCOTUS.

The US Supreme Court heard arguments today in an immigration case that’s spawned debate over a two-word phrase that, on its face, seems simple enough. The term is “renders inadmissible” and, based on the debate in the courtroom, it’s actually nearly incomprehensible.

How the two words are interpreted will affect whether some lawful permanent residents, also known as green card holders, are eligible for cancellation of removal. The question before the court is highly technical and will turn on their reading of a law that the justices couldn’t help but disparage.

“This statute is as obscure as any I’ve seen,” justice Stephen Breyer remarked. “It wasn’t a genius who drafted this.”

Linguistic gymnastics

The dispute arises from the immigration proceedings of Andre Martello Barton, a Jamaican who came to the United States at age 11 with his mother and became a lawful permanent resident in 1992 when he was a teenager. At age 18, Barton pled guilty to felony criminal charges. In 2007 and 2008, he again was convicted of drug offenses. In 2016, the Department of Homeland Security began removal proceedings against him and Barton applied for cancellation of removal.

A noncitizen is eligible for the cancellation if they’ve been a lawful permanent resident for at least five years, have resided in the US continuously for seven years after having been admitted in any status, and have not been convicted of an aggravated felony. But the clock on continuous residence can be stopped if the applicant has committed an offense that “renders” them “inadmissible.”

It was the ideal hearing for a grammar nerd, perhaps. Justice Elena Kagan asked the attorney for the government, “Could you make sense of the verb tenses for me?” As he urged her to read the rule in present tense, she resisted, saying it could only be read in the subjective.

Still, arguments seemed to yield little illumination. Each side has a simple claim. But the statute in question is so complicated that agreeing on how to read it seems impossible.

Barton pled guilty to his first offense just months before he reached the full seven years of continual residence in the United States. The government argues this 1996 guilty plea stopped the clock on his continuous residence and that, therefore, he isn’t eligible for cancellation of removal because it rendered him inadmissible before he’d spent seven years here. In the government’s view, inadmissibility is a status that arose when he took the plea and remains unchanged.

Quite simply, Barton’s counsel counters that his client can’t be rendered inadmissible when he’s already here and has been since he was a kid. He says the government’s reading of the immigration law is too expansive.

His first offense, he contends, did not stop the clock because no immigration judge adjudicated him inadmissible. The government is thus relying on a counterfactual to prove his ineligibility for relief, he says, claiming that because he could have been inadmissible he is forever in a state of inadmissibility though he’s not even seeking to be admitted and was never found inadmissible by an immigration judge.

Breyer seemed to see Barton’s point, and restated it for the government’s counsel, “He’s been admitted. How could he be inadmissible? They admitted him. Ahh, you mean he would have been inadmissible had he not been admitted.”

Rotting fish

But justice Samuel Alito seemed more inclined to take the government’s perspective on status. He asked:

Can I take you back to Justice Breyer’s intriguing question about the meaning of inadmissibility? The Eleventh Circuit had some very colorful examples about status and words that end in “a-b-l-e” or “i-b-l-e,” and one of them had to do with rotten fish. So if a fish rots and it is inedible, they say, well, it was inedible before the person ate it. But under Justice Breyer’s interpretation of admissibility, suppose this person eats the fish and then goes to the emergency room to have his stomach pumped, would the doctor say, well, the fish wasn’t actually inedible because he ate it?”

The courtroom erupted in laughter, as the government’s counsel responded, “No, no, you wouldn’t, because the fish has the status of being inedible.”

But, despite his certainty, there appeared to be little clarity among the justices by the hearing’s end, only a promise from Breyer that he’d give the question of rotting fish his additional consideration.

 

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