No. 18-725

In the

Supreme Court of the United States__________________

ANDRE MARTELLO BARTON,Petitioner,

v.

WILLIAM P. BARR, ATTORNEY GENERAL,Respondent.

__________________

On Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit

__________________

Brief for Amici Curiae Former United StatesImmigration Judges in Support of Petitioner

__________________

July 3, 2019

David G. Keyko Counsel of RecordRobert L. SillsEric EpsteinMatthew F. PutortiNicholas M. BuellHinako GojimaPILLSBURY WINTHROP SHAW PITTMAN LLP31 West 52nd StreetNew York, NY 10019-6131(212) 858-1604david.keyko@pillsburylaw.com

Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

BRIEF OF FORMER UNITED STATESIMMIGRATION JUDGES AS AMICI CURIAE IN SUPPORT OF PETITIONER . . . . . . . . . . . . . 1

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . 1

INTRODUCTION AND ARGUMENT SUMMARY . 6

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

I. Deportability Versus Admissibility . . . . . . . . 8

II. The Stop-Time Rule. . . . . . . . . . . . . . . . . . . . 11

III. Immigration Courts and RemovalProceedings . . . . . . . . . . . . . . . . . . . . . . . . . . 12

A. Initiation of Removal Proceedings . . . . . 14

B. The Master Calendar Hearing . . . . . . . . 14

C. Prehearing Submissions . . . . . . . . . . . . . 16

D. Establishing Eligibility for Cancellation ofRemoval . . . . . . . . . . . . . . . . . . . . . . . . . . 16

E. The Merits Hearing . . . . . . . . . . . . . . . . . 17

F. Pretermission . . . . . . . . . . . . . . . . . . . . . . 20

IV. The Government’s Interpretation ofAdmissibility Would Change an EssentialFunction of Immigration Courts. . . . . . . . . . 21

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A. The Government’s Interpretation IsContrary to the Purpose of the Statute. . 23

1. The Government’s InterpretationWould Deprive Immigration Judges ofthe Authority to Exercise Discretionby Pretermitting Merits Hearings . . . 24

2. No Consideration Will Be Given to theSeverity of the Offense, Warrantingthe Same Drastic Result. . . . . . . . . . . 25

3. Immigration Judges Will Be Deprivedof Evidence Needed to EffectivelyExercise Discretion . . . . . . . . . . . . . . . 27

4. The Government’s InterpretationDisproportionately Disadvantages ProSe Applicants . . . . . . . . . . . . . . . . . . . 29

B. The Government’s Interpretation WouldCreate Inefficiencies in an Already Over-Burdened System . . . . . . . . . . . . . . . . . . . 31

1. Immigration Courts Will Be Forced toDetermine Whether Resident Aliens’Admissions Are Sufficient to RenderThem Inadmissible . . . . . . . . . . . . . . . 33

2. The Government’s InterpretationWill Encourage Dilatory LegalStrategies . . . . . . . . . . . . . . . . . . . . . . 35

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

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TABLE OF AUTHORITIES

CASES

Agyeman v. INS, 296 F.3d 871 (9th Cir. 2002). . . . . . . . . . . . . . . . 31

Capric v. Ashcroft, 355 F.3d 1075 (7th Cir. 2004). . . . . . . . . . . . . . . . 9

Fong Yue Ting v. United States, 149 U.S. 698 (1893). . . . . . . . . . . . . . . . . . . . 13, 26

Gutierrez v. Holder, 662 F.3d 1083 (9th Cir. 2011). . . . . . . . . . . . . . . 36

INS v. St. Cyr, 533 U.S. 289 (2001). . . . . . . . . . . . . . . . . . . . . . . 23

Jay v. Boyd, 351 U.S. 345 (1956). . . . . . . . . . . . . . . . . . . . . . . 23

Landon v. Plasencia, 459 U.S. 21 (1982). . . . . . . . . . . . . . . . . . . . . . . . . 8

Leng May Ma. v. Barber, 357 U.S. 185 (1958). . . . . . . . . . . . . . . . . . . . . . . . 9

Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99 (2d Cir. 2006) . . . . . . . . . . . . . . . 9, 17

Maslenjak v. United States, 137 S. Ct. 1918 (2017). . . . . . . . . . . . . . . . . . 36, 37

Matter of Arreguin de Rodriguez, 21 I. & N. Dec. 38 (BIA 1995). . . . . . . . . . . . . . . 24

Matter of C-V-T, 22 I. & N. Dec. 7 (BIA 1998). . . . . . . 18, 19, 20, 24

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Matter of Edwards, 10 I. & N. Dec. 506 (BIA 1964). . . . . . . . . . . 17, 19

Matter of J, 2 I. & N. Dec. 285 (BIA 1945). . . . . . . . . . . . 10, 33

Matter of K, 7 I. & N. Dec. 594 (BIA 1957). . . . . . . . . 10, 11, 33

Matter of Marin, 16 I. & N. Dec. 581 (BIA 1978). . . . . 17, 19, 20, 21

Matter of S-O-G & F-D-B, 27 I. & N. Dec. 462 (A.G. 2018) . . . . . . . . . . . . . 13

Michel v. INS, 206 F.3d 253 (2d Cir. 2000) . . . . . . . . . . . . . . . . 26

Moncrieffe v. Holder, 569 U.S. 184 (2013). . . . . . . . . . . . . . . . . . . . . . . 32

Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2011). . . . . . . . . . . . 25, 26

Ng Fung Ho v. White, 259 U.S. 276 (1922). . . . . . . . . . . . . . . . . . . . . . . . 7

Nguyen v. Sessions,901 F.3d 1093 (9th Cir. 2018). . . . . . . . . . . . . . . 28

Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002). . . . . . . . . . . . . . . 10

Reno v. Flores, 507 U.S. 292 (1993). . . . . . . . . . . . . . . . . . . . . 9, 13

United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). . . . . . . . . . . . . . . . . . . . . . . 23

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United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011). . . . . . . . . . . . . . . . 25

United States v. U.S. Steel Corp., 251 U.S. 417 (1920). . . . . . . . . . . . . . . . . . . . . . . 21

STATUTES AND REGULATIONS

8 C.F.R. § 240.21(c)(1) . . . . . . . . . . . . . . . . . . . . . . . 20

8 C.F.R. § 1003.10(a)(1) . . . . . . . . . . . . . . . . . . . . . . 12

8 C.F.R. § 1003.10(b) . . . . . . . . . . . . . . . . . . . . . 18, 23

8 C.F.R. § 1003.14(a) . . . . . . . . . . . . . . . . . . . . . . . . 14

8 C.F.R. § 1240.8(a) . . . . . . . . . . . . . . . . . . . . . . . . . 16

8 C.F.R. § 1240.8(d) . . . . . . . . . . . . . . . . . . . . . . . . . 16

8 C.F.R. § 1240.10 . . . . . . . . . . . . . . . . . . . . . . . . . . 15

8 U.S.C. § 1182 . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 26

8 U.S.C. § 1182(a)(2) . . . . . . . . . . . . . . . . . . . . . 11, 12

8 U.S.C. § 1182(a)(2)(A) . . . . . . . . . . . . . . . . . . . . . . 11

8 U.S.C. § 1182(a)(2)(A)(i) . . . . . . . . . . . . . . . . . . . . 10

8 U.S.C. § 1182(a)(2)(C)(i) . . . . . . . . . . . . . . . . . . . . 27

8 U.S.C. § 1227 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

8 U.S.C. § 1227(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

8 U.S.C. § 1227(a)(1)-(6). . . . . . . . . . . . . . . . . . . . . . 15

8 U.S.C. § 1227(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 12

8 U.S.C. § 1227(a)(2)(A) . . . . . . . . . . . . . . . . . . . . . . 25

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8 U.S.C. § 1227(a)(2)(A)(i) . . . . . . . . . . . . . . . . . . . . . 9

8 U.S.C. § 1227(a)(2)(B)(i) . . . . . . . . . . . . . . . . . . . . 26

8 U.S.C. § 1227(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . 12

8 U.S.C. § 1229(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 14

8 U.S.C. § 1229(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 14

8 U.S.C. § 1229(a)(1)(E) . . . . . . . . . . . . . . . . . . . . . . 14

8 U.S.C. § 1229a(a)(1) . . . . . . . . . . . . . . . . . . . . . . . 12

8 U.S.C. § 1229a(a)(3) . . . . . . . . . . . . . . . . . . . . . . . 12

8 U.S.C. § 1229a(b). . . . . . . . . . . . . . . . . . . . . . . . . . 15

8 U.S.C. § 1229a(b)(1) . . . . . . . . . . . . . . . . . . . . . . . 18

8 U.S.C. § 1229a(c)(3)(A) . . . . . . . . . . . . . . . . . . . . . 16

8 U.S.C. § 1229a(c)(4)(A) . . . . . . . . . . . . . . . . . . 16, 17

8 U.S.C. § 1229a(c)(4)(C) . . . . . . . . . . . . . . . . . . 19, 24

8 U.S.C. § 1229b . . . . . . . . . . . . . . . . . . . . . . 15, 16, 21

8 U.S.C. § 1229b(a)(1)-(3). . . . . . . . . . . . . . . . . . 11, 16

8 U.S.C. § 1229b(d)(1) . . . . . . . . . . . . . . . . . . . . . 6, 12

18 U.S.C. § 1015(a). . . . . . . . . . . . . . . . . . . . . . . . . . 36

18 U.S.C. § 1425(a). . . . . . . . . . . . . . . . . . . . . . . 36, 37

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OTHER AUTHORITIES

Average Time Pending Cases Have Been Waiting inImmigration Courts as of May 2019, TRACReports, Inc., https://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog_avgdays.php . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Kathy Brady, Zachary Nightingale & Matt Adams,Practice Advisory: Immigration Risks ofLegalized Marijuana, Immigrant LegalResources Center (Jan. 2018), https://www.ilrc.org/sites/default/files/resources/marijuana_advisory_jan_2018_final.pdf. . . . . . . . . . . . . . . . 30

Ingrid Eagly & Steven Shafer, Access to Counsel inImmigration Court, American ImmigrationCouncil (Sept. 28, 2016), https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court . . . . . . . . . . . . . . . . 13

Executive Office for Immigration Review, U.S.Department of Justice, Immigration CourtPractice Manual 88 (Aug. 2, 2018) . . . . . . . . . . . 31

H.R. Rep. No. 82-1365 (1952), reprinted inLegislative Histories doc. 4, also reprinted in1952 U.S.C.C.A.N. 1653 . . . . . . . . . . . . . . . . . . . 10

Immigration Court Backlog Through May 2019,T R A C R e p o r t s , I n c . ,https://trac.syr.edu/phptools/immigration/court_backlog/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

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Daniel Kanstroom, Surrounding the Hole in theDoughnut: Discretion and Deference inU.S. Immigration Law, 71 TUL. L. REV. 703(1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Jennifer Lee Koh, Crimmigration Beyond theHeadlines: The Board of Immigration Appeals’Quiet Expansion of the Meaning ofMoral Turpitude, 71 STAN. L. REV. ONLINE 267(2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Office of the Chief Immigration Judge, UnitedStates Department of Justice (Feb. 21, 2019),https://www.justice.gov/eoir/office-of-the-chief-immigration-judge . . . . . . . . . . . . . . . . . . . . . . . 12

Cristina M. Rodríguez, Uniformity and Integrity inImmigration Law: Lessons from the Decisions ofJustice (and Judge) Sotomayor, 123 YALE L.J.FORUM 499 (2014) . . . . . . . . . . . . . . . . . . . . . . . . 21

S. Rep. No. 82-1137 (1952), reprinted in Oscar M.Trelles, II & James F. Bailey, III, 3 Immigrationand Nationality Acts Legislative Histories andRelated Documents doc. 3 (1979) . . . . . . . . . . . . 10

Abraham D. Sofaer, Judicial Control of InformalDiscretionary Adjudication and Enforcement, 72COLUM L. REV. 1293 (1972) . . . . . . . . . . . . . 23, 24

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Strengthening and Reforming America’sImmigration Court System: Hearing Before theSubcomm. on Border Sec. and Immigration ofthe S. Comm. on Judiciary, 115th Cong. 2 (2018)(statement of Judge A. Ashley Tabaddor, Pres.of the National Association of ImmigrationJudges) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

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BRIEF OF FORMER UNITED STATESIMMIGRATION JUDGES AS AMICI CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE1

Amici, all former United States ImmigrationJudges, have, collectively, presided over thousands ofimmigration cases and appeals, including thoseinvolving cancellation of removal.

Hon. Steven Abrams was an Immigration Judgefrom 1997 to 2013 in New York City. Before hisappointment to the bench, he was a general attorneyfor the former Immigration Naturalization Service(“INS”).

Hon. Sarah M. Burr was an Immigration Judge inNew York City from 1994 to 2006. In 2006, she wasappointed Assistant Chief Immigration Judge for theNew York, Fishkill, Ulster, Bedford Hills, and VarickStreet immigration courts, and served in that capacityuntil 2011, when she returned to the bench full-timeuntil she retired in 2012.

Hon. Teofilo Chapa was an Immigration Judge inMiami, Florida from 1995 to 2018.

1 All parties have consented to the filing of this brief. See Sup. Ct.R. 37.3(a). No counsel for either party authored this brief in wholeor in part, and no person or entity other than the Amici or theircounsel made a monetary contribution to the brief’s preparation orsubmission.

2

Hon. Jeffrey S. Chase was an Immigration Judgein New York City from 1995 to 2007, and an attorneyadvisor and senior legal advisor at the Executive Officefor Immigration Review (“EOIR”) Board of ImmigrationAppeals (“BIA”) from 2007 to 2017.

Hon. George T. Chew, after serving as an INStrial attorney, was an Immigration Judge in New Yorkfrom 1995 to 2017.

Hon. Bruce J. Einhorn was an Immigration Judgein Los Angeles, California from 1990 to 2007.

Hon. Cecelia M. Espenoza was a Member of theEOIR BIA from 2000 to 2003, and served in the Officeof the General Counsel from 2003 to 2017, where shewas Senior Associate General Counsel, Privacy Officer,Records Officer and Senior FOIA Counsel.

Hon. Noel Ferris was an Immigration Judge inNew York from 1994 to 2013, and an attorney advisorto the EOIR BIA from 2013 to 2016. Before her judicialappointment, she was Chief of the Southern District ofNew York’s Immigration Unit from 1987 to 1990.

Hon. John F. Gossart, Jr. was an ImmigrationJudge in Baltimore, Maryland from 1982 to 2013, andis the former president of the National Association ofImmigration Judges. From 1975 to 1982, he heldvarious positions with the INS, including generalattorney, naturalization attorney, trial attorney, andDeputy Assistant Commissioner for Naturalization. Heis the co-author of the National Immigration CourtPractice Manual, which is used by practitioners acrossthe United States.

3

Hon. Miriam Hayward was an Immigration Judgein San Francisco, California from 1997 to 2018.

Hon. Rebecca Jamil was an Immigration Judge inSan Francisco, California from 2016 to 2018, beforewhich she served as Assistant Chief Counsel for U.S.Immigration and Customs Enforcement in SanFrancisco beginning in 2011.

Hon. William P. Joyce was an Immigration Judgein Boston, Massachusetts from 1996 to 2002, beforewhich he served as legal counsel to the ChiefImmigration Judge and as Associate General Counselfor enforcement for INS.

Hon. Carol King was an Immigration Judge in SanFrancisco, California from 1995 to 2017, and atemporary Member of the EOIR BIA for six months in2010/2011.

Hon. Elizabeth A. Lamb was an ImmigrationJudge in New York City from 1995 to 2018.

Hon. Margaret McManus was an ImmigrationJudge in New York City from 1991 to 2018.

Hon. Charles Pazar was an Immigration Judge inMemphis, Tennessee from 1998 to 2017, before whichhe was Senior Litigation Counsel in the Department ofJustice Office of Immigration Litigation, and in the INSOffice of General Counsel.

Hon. Laura Ramirez was an Immigration Judge inSan Francisco, California from 1997 to 2018.

Hon. John W. Richardson was an ImmigrationJudge in Phoenix, Arizona from 1990 to 2018.

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Hon. Lory D. Rosenberg was a Member of theEOIR BIA from 1995 to 2002. She is the author ofImmigration Law and Crimes.

Hon. Susan Roy was an Immigration Judge inNewark, New Jersey from 2008 to 2010, before whichshe was an Assistant Chief Counsel, National SecurityAttorney, and Senior Attorney for the DHS Office ofChief Counsel in Newark. She is the Chair-Elect of theNew Jersey State Bar Association Immigration LawSection. She serves on the Executive Committee of theNew Jersey Chapter of the American ImmigrationLawyers Association (“AILA”) as Secretary, and is theNew Jersey AILA Chapter Liaison to EOIR. She alsoserves on the AILA-National 2019 Convention DueProcess Committee.

Hon. Paul W. Schmidt was an Immigration Judgein Arlington, Virginia from 2003 to 2016, before whichhe was Chairman of the EOIR BIA from 1995 to 2001,and a Member from 2001 to 2003. He was DeputyGeneral Counsel of the INS from 1978 to 1987, andActing General Counsel from 1986 to 1987 and 1979 to1981. He was a founding member of the InternationalAssociation of Refugee Law Judges, and presently is itsAmericas Vice President.

Hon. Ilyce S. Shugall was an Immigration Judgein San Francisco, California from 2017 to 2019.

Hon. Denise Slavin was an Immigration Judge inBaltimore, Maryland and the Krome Processing Centerin Miami, Florida from 1995 to 2019.

Hon. Andrea Hawkins Sloan was an ImmigrationJudge in Portland, Oregon from 2010 to 2017.

5

Hon. William Van Wyke was an ImmigrationJudge in New York City and York, Pennsylvania from1995 to 2015.

Hon. Gustavo D. Villageliu was a Member of theEOIR BIA from July 1995 to April 2003, and SeniorAssociate General Counsel for the EOIR until heretired in 2011. He was an Immigration Judge inMiami, Florida from 1990 to 1995, presiding over bothdetained and non-detained dockets, as well as theFlorida Northern Region Institutional Criminal AlienHearing Docket. He joined the EOIR BIA as a staffattorney in 1978, specializing in war criminal, investor,and criminal alien cases.

Hon. Polly A. Webber was an Immigration Judgefrom 1995 to 2016 in San Francisco, California, withdetails in Tacoma, Port Isabel, Boise, Houston, Atlanta,Philadelphia, and Orlando Immigration Courts. Shewas National President of AILA from 1989 to 1990, anda National AILA Officer from 1985 to 1991.

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INTRODUCTION AND ARGUMENT SUMMARY

This brief presents the view of former immigrationjudges on two issues: first, the proper standard forassessing whether a lawful permanent resident may bebarred from seeking relief from removal; and second,the impact on the administration of immigration courtswere Respondent’s interpretation of the “stop-time”rule, set forth in 8 U.S.C. § 1229b(d)(1), to be adopted.

Petitioner correctly contends that, for purposes ofthe stop-time rule, a lawful permanent resident who isnot actively seeking admission to the United Statescannot retroactively be rendered inadmissible. Petitioner’s interpretation is consistent with thepurpose of the law and reflects the proper role ofimmigration judges.

Respondent incorrectly argues that a lawfulpermanent resident may be rendered inadmissibleyears after a criminal act for purposes of the stop-timerule, despite the fact that the resident is not activelyseeking admission to the United States. Thatinterpretation, if adopted, would interfere with theappropriate exercise of discretion by immigrationjudges in removal cases, transform discretionaryhearings from open explorations of whether the lawfulpermanent resident has been genuinely rehabilitatedinto opportunities to extract evidence to form a basisfor the government to argue that the hearings not goforward, and create practical difficulties for theadministration of the immigration courts.

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The standard by which an immigration judgeassesses an alien’s eligibility for cancellation of removalfrom the United States is distinct from the concernsabout an alien’s eligibility for admission to the UnitedStates. However, the government would applyinadmissibility standards—the stringent rules used todetermine whether to permit aliens’ entry into theUnited States in the first instance—to thedetermination of whether to allow a lawful permanentresident to make his case that he should not bedeported.

Doing so would impermissibly diminish the dueprocess protections guaranteed to aliens duringremoval proceedings—rights that reflect longtimeresidency in the United States and anacknowledgement that deportation often means the“loss of both property and life, or of all that makes lifeworth living.” Ng Fung Ho v. White, 259 U.S. 276, 284(1922).

This brief explains (1) the differences betweendeportability and admissibility, (2) the stop-time rule,(3) the immigration court system and proceedings toremove a lawful permanent resident alien from theUnited States, and (4) the practical impact thatadoption of the government’s position would have onremoval proceedings.

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ARGUMENT

I. Deportability Versus Admissibility

Considerations regarding an alien’s eligibility forcancellation of removal from the United States aredistinct from the concerns surrounding an alien’seligibility for admission to the United States.

Federal law recognizes that deportability andadmissibility present different issues, Landon v.Plasencia, 459 U.S. 21, 25 (1982), and provides distinctprocesses for each. An alien is “deportable” when he is“in and admitted to the United States” and falls underone of the categories of “deportable aliens” listed in 8U.S.C. § 1227(a). Admissibility, on the other hand, isgoverned by 8 U.S.C. § 1182, which lists ten groundsthat render an alien ineligible for entry into the UnitedStates. When seeking admission to the United States,an alien must receive approval for entry from one ofseveral Executive Branch agencies. This may be doneoutside the United States (for example, by applying fora visa at an American consulate or embassy) as well aswhen seeking entry at the border (through an arrivalinspection by a Customs and Border Protection officer).Aliens may also seek “admission” after a period ofresidence in the United States by applying for anadjustment of status (for example, an alien whoentered the United States on a non-immigrant visamay apply for permanent residency).

Aliens living lawfully in the United States possessgreater rights, benefits, and privileges than thoseseeking admission. As this Court observed, Congresshas “long made a distinction between those aliens who

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have come to our shores seeking admission . . . andthose who are within the United States after an entry.” Leng May Ma. v. Barber, 357 U.S. 185, 187 (1958).Aliens residing in the United States are entitled to dueprocess under the Fifth Amendment; accordingly,removal proceedings are conducted in immigrationcourts before immigration judges. See Reno v. Flores,507 U.S. 292, 306 (1993) (“[T]he Fifth Amendmententitles aliens to due process of law in deportationproceedings.”); Li Hua Lin v. U.S. Dep’t of Justice, 453F.3d 99, 104–05 (2d Cir. 2006) (“Due process requiresthat an applicant receive a full and fair hearing whichprovides a meaningful opportunity to be heard.”)(quoting Capric v. Ashcroft, 355 F.3d 1075, 1087 (7thCir. 2004)).

The statutory bases for deportability andinadmissibility can both involve the consideration of analien’s criminal activity, but that analysis differssignificantly based on whether the issue is deportationor admission. Of particular relevance to the presentcase, 8 U.S.C. § 1227 provides that an alien is“deportable” if he is “convicted of a crime involvingmoral turpitude committed within five years . . . afterthe date of admission [and] for which a sentence of oneyear or longer may be imposed.” Id. § 1227(a)(2)(A)(i).2 On the other hand, 8 U.S.C. § 1182, which governsadmissibility, is not limited to formal convictions of acrime; it provides that an alien is “inadmissible” if heis either “convicted of, or . . . admits committing actswhich constitute the essential elements of . . . a crimeinvolving moral turpitude . . . or a violation of . . . any

2 All emphasis has been added unless otherwise stated.

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law or regulation . . . relating to a controlledsubstance.” Id. § 1182(a)(2)(A)(i). Congress added thisclause to ensure that immigration officers “will be ableto determine from the information supplied by the alienwhether he falls within the ‘criminal’ category ofexcludables, notwithstanding the fact that there maybe no record of conviction or admission of thecommission of a specific offense.” S. Rep. No. 82-1137,at 9 (1952), reprinted in Oscar M. Trelles, II & JamesF. Bailey, III, 3 Immigration and Nationality ActsLegislative Histories and Related Documents doc. 3(1979) (“Legislative Histories”); H.R. Rep. No. 82-1365,at 48 (1952), reprinted in Legislative Histories doc. 4,also reprinted in 1952 U.S.C.C.A.N. 1653, 1702.

An alien’s confession to having committed a crime(or the essential elements of a crime) may only be usedto bar admission if certain procedural rules arefollowed. The Board of Immigration Appeals (“BIA”)decisions have established those rules. See, e.g., Matterof K, 7 I. & N. Dec. 594 (BIA 1957); Matter of J, 2 I. &N. Dec. 285 (BIA 1945). The rules include:

the admitted conduct must constitute theessential elements of a crime in the jurisdictionwhere it occurred; (2) the applicant foradmission must have been provided with thedefinition and essential elements of the crimeprior to his admission; (3) this admission musthave been voluntary.

Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002). These rules are intended to ensure that aliens “receivefair play” while also precluding any later claims thatthe alien was “unwittingly entrapped into admitting

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the commission of a crime involving moral turpitude.”Matter of K, 7 I. & N. Dec. at 597. If an immigrationofficer fails to adhere to these rules, then anyadmission to criminal conduct by the alien is invalidand cannot be used to preclude his entry under 8U.S.C. § 1182(a)(2)(A).

II. The Stop-Time Rule

In the event the government initiates removalproceedings against a lawful permanent resident alien,the alien may apply for relief in the form of“cancellation of removal.” As with most forms of reliefin immigration courts, cancellation of removal isgranted or denied at the discretion of the immigrationjudge. In order to qualify for cancellation of removal,a lawful permanent resident alien must prove that hehas: (1) been admitted for permanent United Statesresidence for not less than five years; (2) resided in theUnited States continuously for seven years after beingadmitted in any status; and (3) not been convicted ofany aggravated felony. 8 U.S.C. § 1229b(a)(1)-(3). Inaddition to satisfying these statutory requirements, analien must establish that he warrants relief in theimmigration judge’s discretion.

Additionally, the seven-year continuous residencerequirement is subject to the “stop-time” rule, whichprovides that the lawful permanent residency period is“deemed to end” when two requirements areestablished: (1) the “commi[ssion] [of] an offensereferred to in section 1182(a)(2) of [Title 8],” and(2) that offense’s effect of “render[ing]” the applicant“inadmissible to the United States under section1182(a)(2) of [Title 8] or removable from the United

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States under section 1227(a)(2) or 1227(a)(4) of[Title 8].” 8 U.S.C. § 1229b(d)(1).

The question here is whether an applicant who haspreviously been admitted to the United States (and istherefore not actively seeking admission), can berendered “inadmissible” by acknowledging thecommission of an offense referred to in section 1182(a)(2).

The government answers that questionaffirmatively, and, in doing so, conflates inadmissibilityrequirements with those for removal. Under thegovernment’s interpretation, a lawful permanentresident may be deemed “inadmissible” even though hehas already been lawfully admitted to the UnitedStates, has been a lawful United States resident foryears, and is not seeking admission to the country.

III. Immigration Courts and RemovalProceedings

Immigration courts are the exclusive venue forproceedings to remove an alien from the United States.8 U.S.C. §§ 1229a(a)(1) & (3). The Department ofJustice’s Executive Office for Immigration Review(“EOIR”) operates sixty-three immigration courts. There, immigration judges appointed by the AttorneyGeneral preside over removal proceedings. See 8C.F.R. § 1003.10(a)(1). As of May 2019, there wereapproximately 400 immigration judges and 875,878cases pending before them––over 2,100 cases onaverage for each judge. Office of the Chief ImmigrationJudge, United States Department of Justice (Feb. 21,2019), https://www.justice.gov/eoir/ office-of-the-chief-immigration-judge; Immigration Court Backlog

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Through May 2019, TRAC Reports, Inc.,https://trac.syr.edu/phptools/immigration/court_backlog/.3

The Immigration and Nationality Act (“INA”) veststhe Department of Homeland Security (“DHS”) withthe exclusive authority to commence removalproceedings. See Matter of S-O-G & F-D-B, 27 I. & N.Dec. 462 (A.G. 2018). Unlike defendants in criminalproceedings, aliens in removal proceedings do not havea constitutional right to counsel, and over 60% of aliensproceed pro se, opposed by experienced DHS attorneys. Ingrid Eagly & Steven Shafer, Access to Counsel inImmigration Court, American Immigration Council(Sept. 28, 2016), https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court.

Aliens are protected by the Fifth Amendment’s dueprocess requirements during removal proceedings. SeeReno, 507 U.S. at 306. For over a century, this Courthas recognized that removal is among the gravestpossible punishments and stressed the importance ofprotecting the due process rights of those who faceremoval. See, e.g., Fong Yue Ting v. United States, 149U.S. 698, 740-41 (1893) (removal is “among theseverest of punishments” and “[e]very one knows thatto be forcibly taken away from home, and family, andfriends, and business, and property, and sent acrossthe ocean to a distant land, is punishment, and that

3 TRAC Reports, Inc. is a nonpartisan, nonprofit data researchcenter affiliated with the Newhouse School of PublicCommunications and the Whitman School of Management, both atSyracuse University.

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oftentimes [sic] most severe and cruel”) (Brewer, J.,dissenting).

A. Initiation of Removal Proceedings

DHS initiates removal proceedings by issuing,serving, and filing with the immigration court a Noticeto Appear (“Notice”). 8 U.S.C. § 1229(a); 8 C.F.R.§ 1003.14(a). The Notice specifies the nature of theproceedings against the alien, including the statutoryprovisions alleged to be violated, and the time andplace at which the initial Master Calendar Hearing(“MCH”) will be held. 8 U.S.C. § 1229(a)(1). TheNotice also states that the alien may be represented bycounsel. Id. § 1229(a)(1)(E).

B. The Master Calendar Hearing

In removal proceedings, an alien’s first appearancebefore an immigration judge is at the MCH. TheMCH—which typically lasts no more than five minutes,with dozens of MCHs scheduled at the same time—issimilar in style to the arraignment of a criminaldefendant. The purpose of the MCH is to advise thealien of his rights regarding the removal proceedings,explain the charges and factual allegations in theNotice, and identify and narrow the factual and legalissues regarding removal and the requested relief. During the MCH, the immigration court may: (1) receive pleadings; (2) set deadlines for filingapplications for relief, submitting briefs, motions,prehearing statements, exhibits, witness lists, andother documents; and (3) schedule individual meritshearings to adjudicate any contested matters or

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applications for relief. See 8 U.S.C. § 1229a(b), 8 C.F.R.§ 1240.10.

At the MCH, the alien must admit or deny thecharges and factual allegations contained in the Notice,either conceding or contesting the grounds on whichDHS contends the alien is removable.4 The alien alsomust disclose any applications for relief from removalhe intends to file, including cancellation of removal,which Petitioner sought in this case. 8 U.S.C. § 1229b. In turn, DHS will state its position on the factual andlegal issues, including the alien’s eligibility for relief,and will later file all documents that support thecharges and factual allegations contained in the Notice.

At the end of the MCH, the judge schedules anindividual merits hearing (“Merits Hearing”), akin to atrial, if the alien has pleaded one or more of the basesfor relief from removal. Non-detained aliens can expectto wait an average of over two years for their MeritsHearing.5

4 An alien with lawful permanent resident status who is present inthe United States may be removed for any of the followingviolations of immigration law: (1) being “inadmissible at time ofentry or of adjustment of status or violates status”; (2) “criminaloffenses”; (3) “failure to register and falsification of documents”;(4) “security and related grounds”; (5) “public charge”; or(6) “unlawful voters.” 8 U.S.C. § 1227(a)(1)-(6).

5 This is because of the courts’ large caseload. In somejurisdictions, the average wait is closer to four years. See AverageTime Pending Cases Have Been Waiting in Immigration Courts asof May 2019, TRAC Reports, Inc., https://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog_avgdays.php.

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C. Prehearing Submissions

In advance of the Merits Hearing, the alien andDHS may submit corroborating evidence. For thegovernment, this may include records of criminalarrests, prosecutions, and convictions to establish abasis for removal; for the alien, this may includeevidence of his rehabilitation in the form of, inter alia,psychiatric evaluations, tax records, school documents,evidence about community activities, and affidavitsfrom family, friends, and neighbors, supporting hisentitlement to relief from removal.

D. Establishing Eligibility for Cancellationof Removal

While the government bears the burden of provingthe basis for an alien’s removability (which is oftenuncontested and admitted at the MCH), the alien bearsthe burden of demonstrating eligibility for relief fromremoval. See 8 U.S.C. § 1229a(c)(3)(A), (4)(A); 8 C.F.R§ 1240.8(a), (d). To do so, an alien must show, typicallyat the MCH, that he meets the statutory requirementsof 8 U.S.C. § 1229b.

Relief in the form of cancellation of removal isavailable only to certain categories of aliens placed inremoval proceedings. Lawful permanent residentaliens can qualify for cancellation of removal if theycan prove that they have: (1) been admitted forpermanent residence in the United States for not lessthan five years; (2) resided in the United Statescontinuously for seven years after admission; and(3) not been convicted of any aggravated felony. 8U.S.C. § 1229b(a)(1)-(3).

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The continuous residence requirement is subject tothe “stop-time” rule. If an alien does not meet thecontinuous residency requirements, his application forrelief may be pretermitted and he either will notreceive a Merits Hearing or his hearing will beterminated if it has begun.

E. The Merits Hearing

In addition to satisfying the three statutoryeligibility requirements discussed above, an alien mustestablish that he is potentially entitled to relief fromremoval as a matter of the immigration judge’sdiscretion. 8 U.S.C. § 1229a(c)(4)(A). The MeritsHearing is an evidentiary hearing designed todetermine whether such relief is warranted. Immigration judges are tasked with ascertaining analien’s character, standing in his community andfamily, and history of behavior; the judges must thenbalance the factors weighing for and against an alien todetermine whether, in the judges’ discretion, the alienis entitled to relief. Matter of Edwards, 10 I. & N. Dec.506, 195 (BIA 1964); Matter of Marin, 16 I. & N. Dec.581, 585 (BIA 1978).

At the Merits Hearing, “[d]ue process requires thatan applicant receive a full and fair hearing whichprovides a meaningful opportunity to be heard.”Lin, 453 F.3d at 104–05. While the Federal Rules ofCivil Procedure and Evidence do not apply in MeritsHearings, those hearings proceed in trial-like fashion. For example, the alien and DHS typically makeopening statements, present and object to evidence,present and cross-examine witnesses and object totestimony, and offer closing statements. The alien is

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almost always the first witness because the purpose ofthe Merits Hearing is to examine the equities,including evidence of rehabilitation. Other witnesseswho testify under oath in support of the alien ofteninclude family members whose livelihood depend on thealien’s income, colleagues who depend on the alien’scontributions at work, close friends who speak to thealien’s character, and neighbors who speak to thealien’s standing and influence in the community. Atypical Merits Hearing lasts three to four hours.

A unique feature of immigration courts is thatimmigration judges have authority under the INA to“interrogate, examine, and cross-examine the alien andany witnesses” during the Merits Hearing. 8 U.S.C.§ 1229a(b)(1). More broadly, “[i]n deciding theindividual cases before them … immigration judgesshall exercise their independent judgment anddiscretion and may take any action consistent withtheir authorities under the Act and regulations that isappropriate and necessary for the disposition of suchcases.” 8 C.F.R. § 1003.10(b). Particularly for pro sealiens, immigration judges typically exercise thatauthority and actively question the alien and anywitnesses.

The Merits Hearing is intended to be a probing,personal inquiry: “there is no inflexible standard fordetermining who should be granted discretionary relief,and each case must be judged on its own merits.”Matter of C-V-T, 22 I. & N. Dec. 7, 11 (BIA 1998). Immigration judges are broadly empowered to makecredibility determinations based on such factors as: “the demeanor, candor, or responsiveness of the

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applicant or witness, the inherent plausibility of theapplicant’s or witness’s account, the consistencybetween the applicant’s or witness’s written and oralstatements, . . . and any inaccuracies or falsehoods insuch statements.” 8 U.S.C. § 1229a(c)(4)(C).

The positive factors that an immigration judge mayconsider include: family ties within the United Statesand hardship to the resident alien’s family ifdeportation occurs; residency of long duration in theUnited States; service in the Armed Forces;employment history; ownership of property; businessties; value and service to the community; proof ofgenuine rehabilitation if there was criminal conduct;and other evidence attesting to good character. Matterof C-V-T, 22 I. & N. Dec. at 7.

The negative factors that an immigration judge mayconsider include: the nature of the grounds forremoval; additional immigration violations; existenceof a criminal record; and other evidence of badcharacter. Matter of Edwards, 10 I. & N. Dec. at 195;Matter of Marin, 16 I. & N. Dec. at 585.

In practice, this necessitates that lawful permanentresident aliens with criminal records provideimmigration judges with evidence of theirrehabilitation in order to tip the balance in favor of agrant of cancellation of removal. Matter of C-V-T, 22 I.& N. Dec. at 12 (“With respect to the issue ofrehabilitation, a respondent who has a criminal recordwill ordinarily be required to present evidence ofrehabilitation before relief is granted as a matter ofdiscretion”). An alien’s candid discussion of his pastbehavior is essential to showing rehabilitation.

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After both sides have presented their respectivecases, and after assessing the record as a whole andweighing the positive and negative considerations inthe alien’s specific case, the immigration judge willdetermine whether “the granting of . . . relief appearsin the best interest of this country.” Matter of C-V-T,22 I. & N. Dec. at 11 (quoting Matter of Marin, 16 I. &N. Dec. at 584-85). The immigration judge may issuean oral decision at the Merits Hearing or issue an oralor written decision at a later date.

F. Pretermission

Aliens in removal proceedings are only entitled to aMerits Hearing where the alien contests thegovernment’s charges of removability or has assertedthat he can satisfy the statutory bases for certain relief,such as cancellation of removal. Thus, the governmentcan move to pretermit a Merits Hearing if the lawfulpermanent resident alien: (1) does not have any basison which to challenge removability; and (2) cannotsatisfy the eligibility requirements for any form ofrelief. DHS may move to pretermit by written or oralmotion at the MCH, by written motion before theMerits Hearing, or by written or oral motion during theMerits Hearing. If the court grants DHS’s pretermitmotion, the proceedings immediately end—meaningeither no Merits Hearing or the cessation of the MeritsHearing if it had begun. See 8 C.F.R. § 240.21(c)(1).

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IV. The Government’s Interpretation ofAdmissibility Would Change an EssentialFunction of Immigration Courts

Immigration proceedings are designed to allowjudges to evaluate the equities of an individual alien’ssituation. See Cristina M. Rodríguez, Uniformity andIntegrity in Immigration Law: Lessons from theDecisions of Justice (and Judge) Sotomayor, 123 YALE

L.J. FORUM 499, 506 (2014). In order to do so,immigration judges must have the authority to exercisebroad discretion—an “essential function” withimmeasurable “value in our jurisprudence.” UnitedStates v. U.S. Steel Corp., 251 U.S. 417, 452 (1920). Such discretion can only be exercised if a full MeritsHearing occurs.

Respondent’s interpretation underminesimmigration judges’ authority to exercise theirdiscretion and drastically changes the way in whichrelief hearings work. It would divorce cancellation ofremoval procedures from the spirit and purpose of 8U.S.C. § 1229b for three reasons:

First, immigration judges would be deprived of theirright to exercise discretion in contexts where, typically,decisions are made by balancing “the adverse factorsevidencing an alien’s undesirability as a permanentresident with the social and humane considerationspresented in his behalf to determine whether thegranting of . . . relief appears in the best interests ofthis country.” Matter of Marin, 16 I. & N. Dec. 581 at584.

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Second, lawful permanent resident aliens wouldlose their right to challenge removal if they wereconvicted of, or admitted to, a listed offense,irrespective of the severity of that offense and thealien’s rehabilitation. This deprives immigrationjudges of the ability to exercise any discretion becauseeven minor offenses would become outcome-determinative, rendering a lawful permanent residentalien ineligible for relief. This is so notwithstandingthat the commission of petty offenses currently oftendoes not lead immigration judges to deny a lawfulpermanent resident alien relief, particularly when thealien’s application demonstrated positive communityties and rehabilitation.

Third, because admissibility would be determinedbased not only on convictions, but also confessions topast criminal acts, the government’s interpretationwould set up traps for the unwary. DHS would be ableto use a resident alien’s candor as a basis forinadmissibility. Applicants thus would be forced to bevery circumspect in answering questions, in order towalk a fine line between omitting relevant informationand foregoing their Fifth Amendment rights againstself-incrimination. What was once a positive factorthat immigration judges could weigh in exercising theirdiscretion (i.e., the demonstration of genuinerehabilitation from past criminal conduct), may becomea liability for resident aliens. This woulddisproportionately harm pro se applicants—themajority of those seeking relief from removal—whomay be unaware that conduct to which they admitcould end their hearing and result in their deportation.

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Finally, the government’s interpretation wouldcreate inefficiency and more delays in the immigrationcourt system. It would strongly incentivize DHSattorneys to engage in time-consuming, open-endedquestioning during Merits Hearings in the hopes ofobtaining confessions of past criminal conduct, forcingimmigration courts to devote precious time andresources to numerous “mini-hearings” to determinethe validity and effect of those confessions.

A. The Government’s Interpretation IsContrary to the Purpose of the Statute

Immigration judges exercise discretion “according to[their] own understanding and conscience.” UnitedStates ex rel. Accardi v. Shaughnessy, 347 U.S. 260,266–67 (1954); see also 8 C.F.R. § 1003.10(b). Thisauthority to exercise discretion has been inextricably“woven into the fabric of the [immigration court]system.” Daniel Kanstroom, Surrounding the Hole inthe Doughnut: Discretion and Deference in U.S.Immigration Law, 71 TUL. L. REV. 703, 751-52 (1997).The immigration process relies on immigration judgesmaking discretionary determinations of relief as“matters of grace” based on the personal narrativesconveyed by individual immigrants. Jay v. Boyd, 351U.S. 345, 354 (1956); see also INS v. St. Cyr, 533 U.S.289, 308 (2001). “Discretion is often needed to enable[immigration judges] to respond creatively to thecircumstances of individual cases,” and, whileimmigration judges’ discretion is bounded and cannotbe arbitrary, it “allows for the operation of expertiseand human sensitivity where standards or stringentreview might stifle such expression.” Abraham D.

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Sofaer, Judicial Control of Informal DiscretionaryAdjudication and Enforcement, 72 COLUM L. REV. 1293,1296 (1972).

1. The Government’s InterpretationWould Deprive Immigration Judgesof the Authority to ExerciseDiscretion by Pretermitting MeritsHearings

Immigration judges can only exercise discretion ifthey can conduct a hearing, during which they oftenexamine witnesses. By statute, immigration judgesassess the credibility and significance of the evidenceto decide what weight to apply to it. 8 U.S.C.§ 1229a(c)(4)(C); Matter of C-V-T, 22 I. & N. Dec. 7.

Immigration judges frequently exercise theirdiscretion to give lesser weight to evidence of criminalconduct that did not result in a conviction. See, e.g.,Matter of C-V-T, 22 I. & N. Dec. 7 (granting relief toalien whose single minor drug offense was not aparticularly serious crime or ongoing threat); Matter ofArreguin de Rodriguez, 21 I. & N. Dec. 38, 42 (BIA1995) (“Just as we will not go behind a record ofconviction to determine the guilt or innocence of analien, so we are hesitant to give substantial weight toan arrest report, absent a conviction or corroboratingevidence of the allegations contained therein.”).

The government’s interpretation of the stop-timerule, however, would allow DHS to move to pretermitthe Merits Hearing if the lawful permanent residentalien has a conviction or admits to conduct constitutinga crime involving moral turpitude or a violation of the

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controlled substances laws, regardless of their severityor surrounding circumstances. Doing so would preventimmigration judges from exercising their statutorilyprescribed discretion to balance evidence of pastcriminal conduct or crimes—including convictions oflow-level misdemeanors, expunged convictions of low-level misdemeanors, or even facts that would constitutea low-level misdemeanor admitted by an alien who hadbeen honest and forthcoming in his reliefproceeding—against positive factors such as importantties to the United States, community involvement,hardship to the lawful permanent resident alien’sfamily if he is deported, and positive evidence ofrehabilitation. This positive evidence would never beheard by the immigration judge if the Merits Hearingwere pretermitted based on the government’sconstruction of the stop-time rule.

2. No Consideration Will Be Given tothe Severity of the Offense,Warranting the Same Drastic Result

A lawfully admitted permanent resident may bedeported for a single crime involving “moral turpitude.”8 U.S.C. § 1227(a)(2)(A). Neither the INA nor anyother statute defines “crime involving moral turpitude”(“CIMT”). See Navarro-Lopez v. Gonzales, 503 F.3d1063, 1068 (9th Cir. 2011) (“there are no statutorilyestablished elements for a crime involving moralturpitude”), overruled on other grounds by UnitedStates v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir.2011) (en banc).

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This has resulted in incongruous judicial decisions. For example, some courts have held that crimes ofmoral turpitude are those that involve fraud, as well asthose that are “base, vile, or depraved,” or “offendsociety’s most fundamental values.” Id. at 1074(Reinhardt, J., concurring). Others, however, haveinterpreted relatively minor crimes as deportableoffenses. For example, in Michel v. INS, 206 F.3d 253(2d Cir. 2000), the Second Circuit affirmed a holdingthat Michel, a lawfully admitted permanent residentwho had resided in the United States for eighteenyears, was deportable based on two convictions forcriminal possession of stolen property—bustransfers—in the fifth degree. The Second Circuitspecifically rejected Michel’s defense based on thetriviality of the offenses and affirmed the BIA’sprecedent that the seriousness of the crime isirrelevant to the definition of a CIMT.

Under the government’s construction of 8 U.S.C.§ 1182, the mere admission of an action that mightamount to a CIMT—a term repeatedly recognized to beambiguous and potentially encompassing the mosttrivial crimes—would become the basis for inflictingthe “severest of punishments.” Fong Yue Ting, 149U.S. 698 at 741 (Brewer, J., dissenting). Of particularconcern is that these admissions may have beenelicited in circumstances where an alien had nocounsel.

Similarly, while the grounds for deportabilityexclude convictions for possession of thirty grams orless of marijuana for personal use, 8 U.S.C.§ 1227(a)(2)(B)(i), the grounds for inadmissibility do

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not. See 8 U.S.C. § 1182(a)(2)(C)(i) (possession of anyamount of marijuana for personal use is a ground forinadmissibility). Thus, the government’s interpretationwould render an applicant ineligible for cancellation ofremoval based on an admission to possession of a smallamount of marijuana during the first seven years of hisresidency in the United States—whether or not he wascriminally charged—upon motion by the government. This would be true notwithstanding the fact that anactual conviction for the same conduct would not begrounds for deportability.

3. Immigration Judges Will BeDeprived of Evidence Needed toEffectively Exercise Discretion

The personal narratives of lawful permanentresident aliens seeking cancellation of removal are animportant part of the Merits Hearing. Resident aliensare advised to provide a full picture of their lives in thiscountry, which often includes an honest recounting oftheir past difficulties. Indeed, such honesty is criticalto an immigration judge’s ability to determinecredibility, character, and rehabilitation.

But the bright-line rule regarding eligibility forrelief proffered by the government will significantlydiscourage such candor on the part of resident aliens.The government’s interpretation of the stop-time ruleallows DHS to seize upon admissions of past criminalconduct given during the resident aliens’ personalnarrative. What resident aliens have used todemonstrate credibility and rehabilitation wouldbecome a liability.

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Under the government’s rule, a resident alien’sadmission of long-past, one-time drug use—forexample, smoking a single marijuana cigarette at aparty when he or she was a college undergraduate—inthe first seven years of his residency in the UnitedStates (whether or not he was criminally charged)would render that resident alien ineligible for reliefupon motion by the government. Such a scenario isneither far-fetched nor hypothetical, but is a slightvariant of what happened to the lawful permanentresident alien in Nguyen v. Sessions prior to reversal bythe Ninth Circuit. 901 F.3d 1093, 1095 (9th Cir. 2018)(“During his merits hearing, Nguyen admitted on cross-examination that he used cocaine [more than a decadeearlier] in 2005. The government argued below thatNguyen’s commission of a drug offense rendered himinadmissible, therefore stopping his accrual ofcontinuous residence at five years. The [immigrationjudge] agreed and pretermitted Nguyen’s cancellationapplication. The [BIA] affirmed in an unpublisheddecision.”).

In effect, the government’s interpretation wouldtransform Merits Hearings from proceedings thatcenter on an applicant’s acknowledgment ofresponsibility for past bad acts and evidence ofrehabilitation and other equities into inquisitions tofind uncharged conduct within the first seven years ofthe applicant’s residence in the United States. Immigration lawyers will counsel clients not tovolunteer any evidence of past behavior that might beviewed as criminal and thus could serve as a basis ofineligibility—meaning that immigration judges may

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well be basing their decisions on incomplete pictures ofresident aliens’ lives in this country.

Further, expert reports will likely be more narrowlywritten. Expert reports authored by mental healthprofessionals are often submitted as evidence of alawful permanent resident alien’s rehabilitation. Immigration judges rely heavily on these expert reportsfor their analyses of a resident alien’s likelihood ofrehabilitation and recidivism. Experts require adetailed account of past criminal conduct—charged anduncharged—in order to make an informedrecommendation as to the risk of recidivism. An alien’srepresentative would not submit such an expert reportif it contained evidence that could be argued to renderher client ineligible for relief.

4. The Government’s InterpretationDisproportionately DisadvantagesPro Se Applicants

According to the government, an applicant’sadmission of the elements of a crime will trigger thestop-time rule. This reading puts applicants,particularly those proceeding pro se, in danger ofinadvertently admitting to past offenses, renderingthemselves inadmissible. In Merits Hearings,applicants testify to their personal history, and oftendescribe past indiscretions and evidence ofrehabilitation. However, if mention of petty crimes orminor drug offenses can result in removal, pro seapplicants are vulnerable to misunderstanding theconsequences of their testimony. This is particularlytrue in reference to personal use of marijuana. Thejurisdiction where the alien resides may have no or

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minimal state or local penalties for marijuanapossession, and so, “believing that they have donenothing wrong, immigrants may readily admit toofficials that they possessed marijuana . . . A realdanger posed . . . is that immigrants will wronglybelieve it is ‘safe’ to disclose apparently lawful conductto federal officials, when in fact this can result incatastrophic immigration consequences.” Kathy Brady,Zachary Nightingale & Matt Adams, Practice Advisory:Immigration Risks of Legalized Marijuana, ImmigrantL e g a l R e s o urce s Ce nte r ( J a n . 2 0 1 8 ) ,https://www.ilrc.org/sites/default/files/resources/marijuana_advisory_jan_2018_final.pdf.

Crimes involving moral turpitude create similarrisks for pro se applicants. “In the past two years,almost every decision issued by the BIA has expandedthe definition of moral turpitude to encompass morecriminal activity” in such a way that has “def[ied]common sense and undermine[d] the prevailingmethodology for assessing the immigrationconsequences of crime.” Jennifer Lee Koh,Crimmigration Beyond the Headlines: The Board ofImmigration Appeals’ Quiet Expansion of the Meaningof Moral Turpitude, 71 STAN. L. REV. ONLINE 267(2019). Pro se applicants will thus have an increasinglydifficult time predicting what testimony could renderthem ineligible for relief.

Because of its prejudicial effect on unrepresentedapplicants, the government’s interpretation of the stop-time rule is inconsistent with the policy goals ofimmigration courts. The Justice Department hascommitted to protecting the rights of pro se applicants.

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EOIR guidance ensures that “unrepresented (‘pro se’)respondents have the same hearing rights andobligations as represented respondents.” ExecutiveOffice for Immigration Review, U.S. Department ofJustice, Immigration Court Practice Manual 88 (Aug. 2,2018). The guidance instructs immigration judges tonotify pro se applicants if they may be eligible forrelief. Id. at 75. At hearings, judges explainprocedures and legal standards for relief. See Agyemanv. INS, 296 F.3d 871, 875 (9th Cir. 2002) (holding animmigration judge’s failure to advise a pro se alien ofthe procedure and relevant legal standards violateddue process). By virtue of their power to question theapplicant and witnesses, immigration judges help prose applicants meet this standard of proof. The JusticeDepartment’s and immigration judges’ recognition oftheir duty to protect the rights of unrepresentedapplicants stands in sharp contrast to the government’sposition in this case.

B. The Government’s Interpretation WouldCreate Inefficiencies in an AlreadyOver-Burdened System

The government’s interpretation of the stop-timerule would create additional systemic inefficienciesthat would deplete immigration courts’ precious timeand resources. While it may appear that, by creatinga stricter rule regarding eligibility for relief, thegovernment’s interpretation would make immigrationcourts more efficient by decreasing the number ofresident aliens who qualify for cancellation of removal,in practice it would have the opposite effect. Thegovernment’s interpretation would strongly incentivize

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government attorneys to engage in time-consuming,open-ended questioning during Merits Hearings in thehope of obtaining admissions of past criminal conduct. This would force immigration courts to repeatedlydevote precious time and resources to “mini-hearings”to determine the validity of those disqualifyingadmissions. See, e.g., Moncrieffe v. Holder, 569 U.S.184, 200–01 (2013) (rejecting the government’sproposed rule to determine whether criminal conductconstitutes an “aggravated felony” because such anapproach would “have our Nation's overburdenedimmigration courts” engage in a “post hoc investigationinto the facts of predicate offenses” and “[relitigate]past convictions in minitrials conducted long after thefact.”).

The immigration courts are overburdened andunder-resourced. “Immigration Courts have facedstructural deficiencies, crushing caseloads andunacceptable backlogs for many years. Many of the‘solutions’ that have been set forth to address thesechallenges have in fact exacerbated the problems andundermined the integrity of the Courts, encroached onthe independent decision-making authority of theImmigration Judges, and further enlarged thebacklogs.” Strengthening and Reforming America’sImmigration Court System: Hearing Before theSubcomm. on Border Sec. and Immigration of the S.Comm. on Judiciary, 115th Cong. 2 (2018) (statementof Judge A. Ashley Tabaddor, Pres. of the NationalAssociation of Immigration Judges). The government’sinterpretation of the stop-time rule will only serve toexacerbate the problems facing an already over-burdened system.

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1. Immigration Courts Will Be Forcedto Determine Whether ResidentAliens’ Admissions Are Sufficient toRender Them Inadmissible

Unlike removability, which is typically based onlyon a formal conviction of a qualifying criminal offense,inadmissibility can also be based on a confession ofcommission of a crime or acts that constitute a crime. In determining whether an alien has so confessed: (1) the conduct in question must clearly constitute acrime under the law where it is alleged to haveoccurred; (2) the alien must be advised of the essentialelements of the alleged crime; (3) the alien must clearlyadmit conduct constituting the essential elements ofthe crime; and (4) the admission must be free andvoluntary. See Matter of J, 2 I. & N. Dec. at 285; seealso Matter of K ,7 I. & N. Dec. at 594 (these rules“were not based on any specific statutory requirementbut appear to have been adopted for the purpose ofinsuring that the alien would receive fair play and topreclude any possible later claim by him that he hadbeen unwittingly entrapped into admitting thecommission of a crime involving moral turpitude.”).

Because this requirement is based upon BIAopinions rather than statutes, experience hasdemonstrated that law enforcement officers often areunaware of these rules. Immigration judges thus willneed to carefully scrutinize admissions to lawenforcement personnel. This could plunge immigrationjudges into the vagaries of the criminal laws of thevarious jurisdictions—both domestic and foreign—inwhich admitted conduct took place. By way of example,

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an immigration judge sitting in New York, presidingover the application of a lawful permanent residentalien who has admitted to the purchase ofpseudoephedrine (a common allergy medicationsometimes used in the manufacture ofmethamphetamine) in Mississippi, would be requiredto determine if his conduct met the essential elementsof Mississippi criminal law relating to controlledsubstances.

A motion by the government to pretermit a MeritsHearing based upon an admission by the alien could beresolved in two ways, both of which would createfurther inefficiencies within the immigration courts. An immigration judge may, during an ongoing MeritsHearing, hear arguments and render a decision as towhether statements constitute an admission ofcriminal conduct that would render an alieninadmissible. Alternatively, an immigration judge canadjourn an ongoing Merits Hearing and schedulebriefing and a separate hearing to decide whether thestatements constitute an admission. Either scenariopresents complications and requires additional timeand resources.

Moreover, the inefficiencies would not end at thetrial level, but would extend to the appellate process. Because the government’s interpretation of the stop-time rule allows for mid-hearing pretermissions ofMerits Hearings, more appeals would be heard on thesole issue of pretermission, often involving anincomplete Merits Hearing. What is more, if the BIAor the Circuit Court later were to overturn animmigration judge’s pretermission decision and remand

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for consideration of the merits of the resident alien’sapplication, the immigration court would need to holdan entirely new Merits Hearing, after a long delay,because the first hearing had been prematurelyterminated.

2. The Government’s InterpretationWill Encourage Dilatory LegalStrategies

The government’s interpretation of the stop-timerule will incentivize both attorneys for the governmentand for aliens to employ new strategies in connectionwith Merits Hearings, at odds with the goals of theimmigration court system. These new tactics willlikely delay and complicate proceedings.

A lawyer may, for instance, instruct his client not tovolunteer information about past acts for fear ofincentivizing the government to conduct an extensiveinquiry into those (and other) acts in the hopes ofsubstantiating a motion to pretermit the alien’s MeritsHearing. Previously, such information about problemsthat have been overcome could have been used todemonstrate rehabilitation. Not only could that resultin an incomplete record upon which an immigrationjudge must render a decision, but any apparent gaps inthe alien’s history may cause the government’sattorney to waste time pursuing potential issues thatdo not exist.

While resident aliens could be forced into takingoverly defensive positions, the government can wieldthe stop-time rule to try to cut the Merits Hearingshort. The government can, and reasonably would,

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arm itself with a list of questions to ask the alien whileunder oath to attempt to contest the alien’s eligibilityfor relief. Were an alien to invoke his FifthAmendment right against self-incrimination, theimmigration judge would likely draw “an adverseinference.” Gutierrez v. Holder, 662 F.3d 1083, 1091(9th Cir. 2011). The government could conduct suchquestioning, whether productive or not, in virtuallyevery hearing. Such “admission-fishing”questioning—in effect, turning Merits Hearings intoopen-ended depositions of often uncounseledaliens—will only serve to draw out hearings andfurther clog up the already overloaded dockets ofimmigration judges, particularly if they become aregular part of Merits Hearings, without leading tobetter results.

Indeed, this is precisely the sort of behavior by DHSthat this Court sought to curtail in Maslenjak v. UnitedStates, 137 S. Ct. 1918 (2017). Maslenjak concernedthe interpretation of 18 U.S.C. § 1425(a), which makesit a crime to “procure, contrary to law, naturalization.” The government proposed an interpretation of 18U.S.C. § 1425(a) in tandem with another law—18U.S.C. § 1015(a), which prohibits knowingly making afalse statement under oath during a naturalizationproceeding. The government asserted that any falsestatement, including statements made on the standardapplication for citizenship form, even if immaterial orunimportant to the government’s decision to grantcitizenship, would constitute a violation of 18 U.S.C.§ 1425(a). The Court rejected this interpretation, andmade note of the “world of disquieting consequences”

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that would result from the government’s interpretation,an observation that resonates in the present case:

Consider the kinds of questions a person seekingcitizenship confronts on the standard applicationform. Says one: “Have you EVER been . . . inany way associated with[] any organization,association, fund, foundation, party, club,society, or similar group[?]”. Asks another:“Have you EVER committed . . . a crime oroffense for which you were NOT arrested?” Suppose, for reasons of embarrassment or what-have-you, a person concealed her membership inan online support group or failed to disclose aprior speeding violation. Under theGovernment’s view, a prosecutor could scour herpaperwork and bring a §1425(a) charge on thatmeager basis, even many years after she becamea citizen. That would give prosecutors nearlylimitless leverage—and afford newly naturalizedAmericans precious little security.

Id. at 1927 (citations omitted).

The construction urged by the government heresuffers from the same logical and legal flaws as did itsargument in Maslenjak, and would harm theadministration of the immigration courts and denyjustice to immigrants facing removal. The MaslenjakCourt stated that it “would need far stronger textualsupport to believe [that was what] Congress intended.” The same is true here, and that support is similarlylacking.

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CONCLUSION

For the foregoing reasons, respectfully, thejudgment of the Eleventh Circuit should be reversed.

Respectfully submitted.

David G. Keyko Counsel of RecordRobert L. SillsEric EpsteinMatthew F. PutortiNicholas M. BuellHinako GojimaPILLSBURY WINTHROP

SHAW PITTMAN LLP31 West 52nd StreetNew York, NY 10019-6131(212) 858-1604david.keyko@pillsburylaw.com

Counsel for Amici Curiae

July 2019