Case: 17-13055 Date Filed: 09/25/2018 Page: 1 of 18 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-13055 ________________________ Agency No. A029-021-783 ANDRE MARTELLO BARTON, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (September 25, 2018) Before WILSON and NEWSOM, Circuit Judges, and VINSON, * District Judge. NEWSOM, Circuit Judge: * Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida, sitting by designation. Case: 17-13055 Date Filed: 09/25/2018 Page: 2 of 18 The federal immigration laws give the Attorney General the discretion to cancel the removal of an otherwise removable lawful permanent resident who (among other conditions) “has resided in the United States continuously for 7 years after having been admitted in any status.” 8 U.S.C. § 1229b(a)(2). Importantly for present purposes, though, the continuous-residence requirement is subject to the so-called “stop-time rule.” The provision that embodies that rule—at issue here— states that any period of continuous residence terminates when the alien “commit[s] 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, whichever is earliest.” Id. § 1229b(d)(1) (emphasis added). The question before us is whether a lawful-permanent-resident alien who has already been admitted to the United States—and who isn’t currently seeking admission or readmission—can, for stop-time purposes, be “render[ed] … inadmissible” by virtue of a qualifying criminal conviction. Other circuits have divided over the answer. For slightly different reasons, the Second and Fifth Circuits have both held that a lawful permanent resident needn’t apply for admission to be “render[ed] … inadmissible” under the stop-time rule (as has the Third Circuit, albeit in an unpublished opinion). See Heredia v. Sessions, 865 F.3d 60, 67 (2d Cir. 2017); Calix v. Lynch, 784 F.3d 1000, 1008–09 (5th Cir. 2015); 2 Case: 17-13055 Date Filed: 09/25/2018 Page: 3 of 18 Ardon v. Att’y Gen. of U.S., 449 Fed. App’x 116, 118 (3d Cir. 2011). More recently, the Ninth Circuit disagreed, concluding that “a lawful permanent resident cannot be ‘rendered inadmissible’ unless he is seeking admission.” Nguyen v. Sessions, __ F.3d ___, 2018 WL 4016761, at *5 (9th Cir. Aug. 23, 2018). For the reasons that follow, we agree with the Second, Third, and Fifth Circuits, and disagree with the Ninth. I A Andre Martello Barton is a native and citizen of Jamaica. Barton was initially admitted to the United States on May 27, 1989 as a B-2 visitor for pleasure; approximately three years later, he successfully adjusted his status to lawful permanent resident. Since his admission, Barton has run afoul of the law on several occasions. Initially, on January 23, 1996—for reasons that will become clear, the dates matter—Barton was arrested and charged with three counts of aggravated assault and one count each of first-degree criminal damage to property and ...
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