The Supreme Court Buys Into Donald Trump’s Anti-Immigrant Fearmongering
Using language evoking pernicious stereotypes about immigration and crime, the Court’s conservative majority clears the way for the Trump administration to deport legal permanent residents for crimes committed long ago.
Jay Willis Apr 29, 2020
This commentary is part of The Appeal’s collection of opinion and analysis.
Last week, the U.S. Supreme Court cleared the way for the Trump administration to deport more legal permanent residents for criminal convictions that occurred in the distant past. The appalling result in Barton v. Barr again demonstrates the five-justice conservative majority’s willingness to defer to the administration’s xenophobia-infused exercises of executive power. It is also a case study in the use of language that dehumanizes people convicted of crimes in order to inflict state-sanctioned cruelty on them.
Andre Barton legally immigrated to the United States from Jamaica in 1989, when he was about 10 years old, and received his green card in 1992. He was arrested and convicted on assault and gun charges in 1996, when he was 18, and twice convicted on state drug charges in the mid-2000s. After that, Barton was never arrested again; he went to rehab, graduated from college, got engaged, and started a family. Until he was deported, the 42-year-old father of four lived in Georgia, where he ran a car repair shop owned by his mother.
Nevertheless, in 2016—nearly a decade after his last arrest—federal immigration authorities detained Barton based on his drug offenses and the 1996 gun conviction, and began the process of deporting him to Jamaica. Federal law permits the government to remove from the country green card holders who have been convicted of certain crimes, and in this case, an immigration judge ruled that Barton was indeed removable.
However, the law includes exceptions that allow otherwise removable people to stay in the United States if they meet certain conditions. In general, the more harmful one’s sudden deportation would be for their family and community, the more generous the law—in theory—is supposed to be. Barton applied for one of these exceptions, a process known as “cancellation of removal.” Among the criteria to qualify for this form of leniency is continuing residency in the United States for seven years after admission. Barton, who hasn’t returned to Jamaica in more than 25 years, would appear to easily pass this part of the test.
The “cancellation of removal” exception, however, contains a statutory exception of its own: the “stop-time” rule. Under that rule, a person’s period of residence legally ends—making them ineligible for relief—if they commit a crime that, under a different statute, makes them an “inadmissible alien.” Again, Barton’s removal was based on his gun and drug convictions, which did not trigger the stop-time rule. But the government argued that his separate 1996 assault, which occurred six-and-a-half years after his arrival, triggered the stop-time rule just shy of seven years, thus rendering him “inadmissible”—and powerless to ask a judge to let him stay.
This logic, on its face, feels a little silly: How can Barton, two decades after being admitted to the United States, now suddenly be “inadmissible”? As a group of law professors explained in an amicus brief filed on Barton’s behalf, immigration law has long distinguished between people who are subject to deportation on the one hand, and people who may be barred from even entering the country on the other: Generally, those who are already here enjoy more protections than those who are not. Subjecting a permanent resident like Barton to the more stringent tests for “admissibility,” the professors wrote, would “impose criminal bars to relief from removal that sweep far beyond those Congress has proposed as appropriate.”
The intertwined statutes and matryoshka dolls of exceptions here managed to confound even the justices charged with deciding the case. In an unusual aside, Justice Brett Kavanaugh’s opinion warned readers that parts of the argument are “not easy to unpack”; at oral argument, Justice Stephen Breyer quipped that whoever drafted the stop-time rule “wasn’t a genius.” But for Andre Barton, the stakes were simple and could not have been higher: If the Court decided in his favor, he had a fighting chance at getting his deportation order overturned, allowing him to remain in the United States with his mother, his fiance, and his children.
Writing for the Court’s conservative majority, Kavanaugh instead decided that Barton is out of time, options, and luck. A crime that eventually prompts one’s removal from the country, he wrote, need not be the crime that triggers the stop-time rule within the initial seven-year window. He also decided that in this context, “admissibility” is a technical term that doesn’t hinge on whether one is literally granted or denied admission to the United States. “As a matter of statutory text and structure,” he asserted, the analysis is “straightforward.”
In an occasionally stinging dissent, Justice Sonia Sotomayor criticizes the majority for “contorting the statutory language” and applying law it “seems to wish [Congress] had written” in order to reach this outcome. The ruling has the absurd effect of transforming Barton’s 1996 assault conviction—an event that wasn’t serious enough to deport him 24 years earlier—into a permanent, absolute bar to any future applications for relief, no matter how much time had elapsed or circumstances had changed since.
“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,” she wrote. “It is also at odds with common sense.”
Two things stand out about this outcome: first, the remarkable philosophical flexibility of the Court’s conservatives when their political allies appear before them. The case is only the latest instance in which they have tacitly endorsed some of the president’s more aggressive legal arguments, legitimizing his use of anti-immigrant fearmongering as public policy.
As Professor Nancy Morawetz detailed at the ImmigrationProf Blog, the majority reached its conclusion by selectively applying rules for analyzing vague laws—rules that, if applied to Barton’s case, might have led to a different result. Conservative judges often argue for resolving ambiguities by focusing on the plain meaning of statutory text. As a result, they are supposedly reluctant to assume that any statutory language is redundant or superfluous. (When the Wisconsin Supreme Court’s conservatives decided Democratic Governor Tony Evers couldn’t postpone in-person voting during the COVID-19 pandemic, for example, they leaned heavily on this principle.) But here, the majority’s reasoning required treating part of the text as redundant. Kavanaugh barely bothered to address this divergence from prevailing conservative judicial philosophy: He simply stated that “redundancies are common in statutory drafting,” and that in this case, “the better overall reading of the statute contains some redundancy.”
“That is not the argument you would expect from the conservative wing of the Court,” Professor Morawetz wrote. “It is hard to walk away without the sense that there are different statutory interpretation rules at work for those who are powerful and those who are not.”
The majority and dissenting opinions also contrast sharply in the extent to which the justices considered the impact of their decision on Barton, his family, and other people like Barton whose fates this case determined. The majority begins with a recitation of his involvement with the criminal legal system, noting his convictions “on three separate occasions spanning 12 years.” Later, Kavanaugh takes care to name the substances—methamphetamine, cocaine, and marijuana—involved in the drug arrests, and describes the gun and assault convictions using lurid, cinematic language, explaining that Barton and a friend “shot up” an ex-girlfriend’s house. (This phrase is decidedly not a legal term of art.) Read together, these rhetorical flourishes evoke a familiar stereotype: a scary, drug-involved career criminal who is liable to start shooting at any moment.
The Barton described in Sotomayor’s dissent, which all four liberal justices signed, sounds like a different person altogether. She carefully lays out the facts of Barton’s early life, personal challenges, and subsequent accomplishments—valuable context that Kavanaugh and company conspicuously omitted. (The details about his background included in the beginning of this article come primarily from her opinion.) For example, it was Barton’s friend, Sotomayor notes, who actually fired at the ex-girlfriend’s house. In court, Barton testified that he didn’t know the friend even had a gun, let alone planned to shoot it.
The rest of the dissent fills in more of the blanks left by the majority. She writes about Barton’s stints in boot camp and rehab, and praises him for getting his GED diploma, graduating from college, and leading “a law-abiding life.” She notes that his drug convictions were for possession, not distribution, and linked them to his since-resolved dependency. She frames Barton’s three convictions against the backdrop of his 30 years in the United States, not the 12-year period in which they occurred. And she quotes the immigration judge who evaluated Barton’s initial application for mercy and badly wanted to approve it; he “is clearly rehabilitated,” the judge said, and his family “relies on him and would suffer hardship” if he were deported.
At every juncture, Sotomayor emphasizes the real-world implications of what the conservatives presented as a rather dry question of statutory interpretation: By the time immigration authorities put Andre Barton in removal proceedings, every member of his immediate family was living in America. Deporting him deprives his family of its primary provider, and sends him off to a country he hasn’t seen in decades.
Not until the very end of Kavanaugh’s opinion does he begin to grapple with the stakes of the case before him. “Removal of a lawful permanent resident … is a wrenching process, especially in light of the consequences for family members,” he wrote. “Removal is particularly difficult when it involves someone such as Barton who has spent most of his life in the United States.”
Just as quickly as he began to acknowledge Barton’s humanity, though, Kavanaugh returned to emphasizing the length of Barton’s rap sheet and the gravity of his transgressions. Congress chose to provide for the deportation of immigrants who commit “serious crimes,” he reasons, and to cut off those with “substantial criminal records” from the possibility of relief; the law, he writes, does not extend leniency to someone who “has amassed a criminal record of this kind.” Put differently, the Court’s conservatives are not responsible for what happened to Andre Barton; Barton, in their telling, did this to himself.
The exact words the justices use while resolving arcane questions about obscure immigration statutes may not seem significant. But when the choice the Court ultimately makes is so callously indifferent to the plight of vulnerable people, framing becomes a critical tool for defending their deliberative process. The decision in Barton v. Barr enables an unapologetically anti-immigrant president to deport longtime legal residents over events that took place years ago, breaking up families and depriving children of their parents and parents of their children. Kavanaugh knows this perfectly well; he acknowledges as much in his opinion. By sketching a two-dimensional portrait of Andre Barton as a dangerous ex-con and ignoring decades of growth and development since, Kavanaugh and the conservatives quietly absolve themselves of any moral obligation to think about it.
Jay Willis is a senior contributor at The Appeal.
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