WASEEM AHSAN KHAN v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
No. 19-1427
United States Court of Appeals, Third Circuit
November 3, 2020
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 19-1427
____________
WASEEM AHSAN KHAN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF
AMERICA,
Respondent
____________
On Petition for Review of a Decision of
the Board of Immigration Appeals
[Agency No. 047-698-921]
Immigration Judge: Daniel A. Morris
____________
Argued July 8, 2020
Before: KRAUSE, MATEY, and RENDELL Circuit Judges
(Opinion Filed: November 3, 2020)
Eric M. Mark [ARGUED]
201 Washington Street
Newark, NJ 07102
Attorney for Petitioner
Surell Brady
United States Department of Justice
Office of Immigration Litigation
Room 5044
P.O. Box 878
Washington, DC 20044
Sunah Lee [ARGUED]
Andrew N. O’Malley
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Washington, DC 20044
Attorneys for Respondent
David A. Isaacson
Cyrus D. Mehta & Partners
One Battery Park Plaza
9th Floor
New York, NY 10004
Attorney for Amici Curiae American Immigration
Lawyers Association, National Immigration Project of
the National Lawyers Guild, and Immigrant Defense
Project
____________
____________
KRAUSE, Circuit Judge.
The decision of some states to decriminalize the possession of personal-use quantities of marijuana has had collateral consequences well beyond the vacatur of thousands of convictions. We deal today with a consequence for noncitizens whose commission of this type of offense, under applicable immigration laws, would normally “stop time” on the accrual of the years of cоntinuous residence required to be eligible for cancellation of removal. See
I. Background
Petitioner Waseem Ahsan Khan was admitted to the United States as a legal permanent resident (LPR) in 2000 and pleaded guilty to possession of less than one-half ounce of marijuana, in violation of
In 2010, Khan was convicted for two counts of larceny in the third degree under
At each step along the way, Khan sought cancellation of removal, a discretionary form of relief that permits an otherwise removable noncitizen to remain in the country.1 See Torres v. Lynch, 136 S. Ct. 1619, 1623 (2016). As relevant to this appeal, he acknowledged that to be eligible for this relief, he must “ha[ve] resided in the United States continuously for 7 years after having been admitted” as a LPR.
granted a vacatur of that conviction,2 see
Khan timely petitioned for review of the BIA’s conclusion thаt his since-vacated conviction triggered the stop-time rule.3
II. Jurisdiction and Standard of Review
The BIA had jurisdiction under
III. Discussion
On appeal, Khan аgain contends that he “has resided in the United States continuously for 7 years after having been admitted in any status,”
2006 marijuana offense—the inadmissibility offense that would otherwise trigger the stop-time rule—was decriminalized and his conviction vacated. We first discuss the normal operation of the stop-time rule and then turn to the effect of a vacatur resulting from the offense’s decriminalization.
A. The Normal Operation of the Stop-Time Rule
As with any question of statutory interpretation, “we must begin with the statutory text,” A.A. v. Att’y Gen., 973 F.3d 171, 180 (3d Cir. 2020) (citation omitted), and because we “presume[] that Congress expresse[d] its intent through the ordinary meaning of its language,” we start with “an examination of the plain language of the statute,” id. (first and second alterations in original) (internal
In relevant part, the provision embodying the stop-time rule provides that a LPR’s continuous residence stops accruing if and when the LPR “has committed an offense referred to in section 1182(a)(2) . . . that renders the alien inadmissible to the United States under section 1182(a)(2).”4
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.
be considered to “ha[ve] committed an offense referred to in sеction 1182(a)(2) . . . that renders the alien inadmissible . . . under section 1182(a)(2).”
By its terms, the stop-time rule is susceptible to two readings. One is that the LPR previously committed one of the offenses specified in § 1182(a)(2), with the clause “that renders the alien inadmissible . . . under section 1182(a)(2)” serving merely to describe the significance of “an offense [being] referred to in section 1182(a)(2).” The other is that the rule incorporates two distinct requirements: (1) the LPR must have previously committed one of the offenses specified in § 1182(a)(2), and (2) the LPR’s conviction of or admission to the offense “renders [him] inadmissible.” But of the two possible readings, only the latter comports with the statutory text and finds support in precedent.
As a textual matter, this second reading is proper for three reasons. First, Congress’s use of different verb tenses in each of the clausеs—present-perfect in “has committed” and present in “renders”—reflects its intent for the two clauses to define separate requirements. See United States v. Wilson, 503 U.S. 329, 333 (1992); Santos-Reyes v. Att’y Gen., 660 F.3d 196, 199 (3d Cir. 2011). Second, “[w]ords are to be given the meaning that proper grammar and usage would assign them,” United States v. Johnman, 948 F.3d 612, 618 (3d Cir. 2020) (alteration in original) (quoting Nielsen v. Preap, 139 S. Ct. 954, 965 (2019)), and though not so well-recognized as to rise to the level of a grammatical canon, the word “that” prefacing the second clause generally serves as a restrictive pronoun introducing necessary, additional information—in contrast to “which,” a non-restrictive pronoun generally prefacing only
clarifying information, see Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 142–43 (2012); see Calix v. Lynch, 784 F.3d 1000, 1005–06 n.4 (5th Cir. 2015). Finally, it is a “cardinal principle of statutory construction that we must give effect, if possible, to every clause and word of a statute,” N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 941 (2017) (internal quotation marks and citation omitted), but the first reading would make the clause “that renders . . . inadmissible” entirely superfluous, while the second reading “adhere[s] tо the statutory text, which differentiates between the two [requirements],” Nasrallah v. Barr, 140 S. Ct. 1683, 1693 (2020), and thus gives distinct purpose to the “renders . . . inadmissible” clause.
It is not surprising, then, that even before the Supreme Court weighed in, our sister circuits and the BIA had adopted the second reading and held that the clause “that renders the alien inadmissible . . . under section 1182(a)(2)” in fact “qualifies, rather than describes, the preceding clause,” Calix, 784 F.3d at 1005 n.4, and thus “limit[s] . . . the types of offenses which cut оff the accrual of further time” to those for which the petitioner has been “rendered inadmissible—by a conviction, admission of the criminal conduct, or through some other means,” Heredia v. Sessions, 865 F.3d 60, 69–70 (2d Cir. 2017) (quoting In re Perez, 22 I. & N. Dec. 689, 693 (BIA 1999)). And Barton v. Barr last term solidified that view. 140 S. Ct. 1442 (2020).
There, the Supreme Court had occasion to consider the meaning of the stop-time rule in connection with a different question: whether a LPR—who is already considered “admitted” under the immigration code—can still trigger the stop-time rule by committing аn offense that renders him
inadmissible, or only by committing an offense that renders him removable. See id. at 1447–48. It concluded LPRs remained subject to the stop-time rule for inadmissibility offenses, see id. at 1450–51, but as relevant for our purposes, the Court also observed that the stop-time rule has two distinct requirements:
First, cancellation of removal is precluded if a noncitizen committed a § 1182(a)(2) offense during the initial seven years of residence, even if . . . the conviction occurred after the seven years elapsed. . . . Second, the text of the law requires that the noncitizen be rendered “inadmissible” as a result of the offense. . . . [And] “while only commission is required at step one, conviction (or admission) is required at step two.”
Barton, 140 S. Ct. at 1449–50 (quoting Barton v. Att’y Gen., 904 F.3d 1294, 1301 (11th Cir. 2018)).
In sum, based on both text and precedent, the stop-time inquiry involves two questions: (1) Did the Petitioner commit one of the offenses identified in § 1182(a)(2) beforе accruing seven years’ continuous residence, and (2) was the Petitioner rendered inadmissible under § 1182(a)(2) as a result of that offense? Id.; see also Barton, 904 F.3d at 1300, aff’d, Barton, 140 S. Ct. 1442 (describing the two steps); Nguyen v. Sessions, 901 F.3d 1093, 1096 (9th Cir. 2018), abrogated on other grounds by Barton, 140 S. Ct. 1442 (same); Heredia, 865 F.3d at 67 (same); Calix, 784 F.3d at 1008 (same). As those questions guide our analysis concerning Khan, we consider next whether the decriminalization of his offense and the
resulting vacatur of his conviction change either of the answers.
B. The Stop-Time Rule Applies to a Decriminalized Offense
For the reasons discussed below, we conclude that once both requirements for the application of the stop-time rule were satisfied, the subsequent vacatur of Khan’s conviction did not remove him from the rule’s ambit.
1. Vacatur Has No Effect on When an Offense was “Committed”
For the first requirement, our answer is straightforward: The text of the stop-time rule speaks not to the existence of a conviction, but to whether the noncitizen “committed an offense referred to in section 1182(a)(2).”
With that understanding, the first clause is satisfied when the conduct itself “occur[s] on a particular date before the end of the seventh year of continuous residence, or [the] conduct . . . runs up to the date when the seventh year of residency ends,” regardless of “when the subject is criminally charged for the conduct” or is convicted of it. Santos-Reyes, 660 F.3d at 199. That understanding accords with Barton, where the Supreme Court observed that a LPR who committed an offense before meeting the continuous-residence requirement would be ineligible for cancellation “even if . . . the conviction occurred after the seven years elapsed.” 140 S. Ct. at 1449. It is also consistent with the way the Courts of Appeals and the BIA have discussed this requirement. See Briseno-Flores v. Att’y Gen., 492 F.3d 226, 229 (3d Cir. 2007) (“[T]he commission of [an inadmissibility offense] effectively stops the time which counts toward the calculation of . . . continuous [residence].”); see also Heredia, 865 F.3d at 70–71; Calix, 784 F.3d at 1012; In re Perez, 22 I. & N. Dec. at 693–94.
In short, the stoр-time rule’s requirement that a noncitizen “has committed an offense referred to in section 1182(a)(2),”
2. Vacatur Due to Decriminalization of an Offense Has No Effect on Whether a Noncitizen is Rendered Inadmissible
For the second requirement, the focus shifts from when the noncitizen committed the inadmissibility offense to whether the offense “render[s] the [noncitizen] inadmissible to
the United States under
consider whether a subsequent vacatur of that conviction negates that consequence.
As a general matter, the answer is no. The immigration consequences of a criminal conviction are typically fixed at the time of conviction and not altered by post-conviction developments in the law.7 See, e.g., Vartelas v. Holder, 566 U.S. 257, 261 (2012) (holding that the collateral effects of a noncitizen’s conviction were determined “by the legal regime in force at the time of his conviction”).
Doe v. Att’y Gen., 906 F.3d 281, 287 (3d Cir. 2018) (holding that we “compare the [controlled substances] schedules at the time of conviction” and rejecting petitioner’s argument that his conviction did not trigger immigration consequences because it was not a categorical match with the current schedule (citing Mellouli v. Lynch, 575 U.S. 798, 135 S. Ct. 1980, 1984 (2015)); Doe v. Sessions, 886 F.3d 203, 210 (2d Cir. 2018) (same); In re Velasquez-Rios, 27 I. & N. Dec. 470, 472 (BIA 2018) (describing the analysis of eligibility for cancellation of removal in connection with a conviction for a crime involving moral turpitude as a “backward-looking inquiry into the maximum possible sentence the alien could have received for his offense at the time of his conviction” (emphasis omitted)).
According to Khan, however, a vacatur turns that general rule on its head so that, except in the narrow circumstance where a vacatur was granted on the basis of rehabilitation or immigration hardship, no vacated
assistance of counsel reflected a defect in the underlying proceeding and therefore did not render the noncitizen ineligible for adjustment of status to permanent resident); see Rodriguez v. Att’y Gen., 844 F.3d 392, 397–98 (3d Cir. 2016) (same); see also Andrade-Zamora v. Lynch, 814 F.3d 945, 949–50 (8th Cir. 2016) (applying Pickering in stop-time context); Saleh v. Gonzales, 495 F.3d 17, 25 (2d Cir. 2007) (same).
Khan is simply mistaken in his reading of Pickering. The BIA’s holding was not that only vacaturs based on “rehabilitation or immigration hardships” continue to function as convictions under the immigration code. To the contrary, the agency identified those situations as illustrative, not exhaustive, examples of the broad category of cases in which “a court vacates a conviction for reasons unrelated to the merits of the underlying criminal proceedings, [and] the [noncitizen] remains ‘convicted’ for immigration purposes.” Pickering, 23 I. & N. Dec. at 624; see Bragdon v. Abbott, 524 U.S. 624, 639 (1998) (noting that “use of the term ‘such as’ confirms, [a] list is illustrative, not exhaustive”). In effect, then, Khan has the BIA’s position backwards: Under Pickering, only if a conviction is vacated “based on a defect in the underlying criminal proceeding[],” does it cease to function as a “conviction” for immigration purposes.” 23 I. & N. Dec. at 624; see also Pinho, 432 F.3d at 207–09.
States Constitution and provisions of the Connecticut Constitution in his petition for destruction of record, the BIA and this Court consider in the first instance whether “the order explains the court’s reasons for vacating the conviction.” Pinho v. Gonzales, 432 F.3d 193, 215 (3d Cir. 2005). Only if “the order does not give a clear statement of reasons,” is it permissible to look at “the record before the court when the order was issued,” id., and Khan’s order, which states “the Petition for Destruction of Record of Decriminalized Offense is GRANTED,” App. 9, reflects that his vacatur was based not on any substantive defect in the criminal proceeding, but on the state legislature’s policy decision to decriminalize an offense. See Prado v. Barr, 949 F.3d 438, 442 (9th Cir. 2020) (observing that a state’s reclassification of and reduction of penalties for certain marijuana convictions did not reveal “a ‘substantive’ flaw in [those] conviction[s]”).
In sum, the vacatur of Khan’s conviction for an inadmissibility offense does not relieve
“period of continuous residence ended when he committed his drug possession offense,” App. 7., and because he had not yet accrued the requisite seven years’ continuous residеnce, Khan is ineligible for cancellation of removal.
IV. Conclusion
For the foregoing reasons, we will deny the petition for review.
Notes
(A) . . . when the alien is served a notice to appear under section 1229(a) of this title, or
(B) when the alien has committed an offense
[A] formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.