admissible for purposes of the stop time rule the court should hold that an offense renders an ilian inadmissible if the immigration judge finds that the offense renders the alien inadmissible at the removal hearing that precipitates the need to apply the stop time rule if the court disagrees with that and agrees with the th circuit inadmissible is a status it should hold that an alien requires that status when the alien is capable of being charged with in admissibility in this case neither condition is satisfied petitioner was not found inadmissible he wasn't capable of being found in admissible therefore he was not rendered inadmissible so i'd like to begin this morning with a concession the government makes at pages twenty nine and thirty brief which i think narrows the issues in this case somewhat so the government concedes that when the words inadmissible and removable which are the crucial words in the stop time when those words are used in a statute that has a connection to the aliens own removal proceeding the reference to the charge against the alien at that removable for certain specified reasons there to the government agrees with moveable is not the status it's a reference to the actual charge at the hearing and they say that's natural in that context because the statute has a connection to the aliens or we will proceed so the question  boils down to whether the government has put forward a sufficient case for holding that the words inadmissible and removal in the stop time will mean something different from what it concedes they mean in these adjacent or nearby statutes addressing the same subject matter and i don't think the government has put forward that case because i think that many of the context will clues that apply in the nearby statutes also apply in a stop time rule or at least there isn't a sufficient reason for construing those statutes differently so st of all i think it's important to recognize that the stop time rule is applied only in the context of removal proceedings after the immigration judge has just decided whether an alien is inadmissible or removable so there's like two steps at step one the immigration judge ability and or seeking cancellation yes that's correct and then there are some that are ordered who are found in this simple or removable not on the basis of a crime at all so that's true but in so you have two classes of people that aren't covered by the way you're reading this ability now no but there's still a threshold finding of inadmissibility or ability it's true there may not be hearing there might be a concession but in the most typical cases it's based on an possibly get an argument off the table do you really want to argue that the concept of inadmissibility is not a status i think that the word varies depending on the context in which it's being used so i had well that's a different question but is it is or is not the concept of inadmissibility a status i think that it can work i mean two things i mean i agree with you that you know the sounds like a status at least in some common i can't i'm not i'm not conceding i'm not going to argue something that's obviously wrong there are certain contexts in which the way you are using that word it sounds like a step so i agree if you go to your lawyer before the hearing and say hey i want to go to nagra falls in line admissible in that context it's talking about a status that's clear but i also think it's clear that in certain contexts when you're talking about the removal proceeding give me a give me an example in ordinary speech where inadmissibility is not a status you just gave the example of you just gave an example yourself where would be ye somebody is in europe is going to buy a ticket to come to the united states if that person is does not satisfy that person is inadmissible that person is inadmissible at the time when the ticket is purchased it's or at that time when the person gets on a bus in the central american to come to the southern border or if evidence is inadmissible it's inadmissible before the attorney tries to admit in a trial that so that's true but it seems to me that when you're using the word in the context of talking about the removal proceeding then you have to show why in the context of a a removal proceeding for an l p r who has not left the country there cannot be an assessment of inadmissibility of this status you have to show why that is so so i think it's for many of the same reasons why we agree with the adjacent statute that that is so so st of all just contextually it seems to me it's quite natural when  natural to talk about what just happened rather than this new proceeding that imagines what would have happened if the person had left and tried to come back and i also think that the opening stands of the cancellation of removal statute is actually quite good for us it's says something to the effect of the attorney dispute the fact that there are other provisions in the immigration laws in which indigenous ability is assessed at the time other than when an alien is seeking admission to the country so  yes i do and i let me walk through all of those because i don't it's almost like the exception that proves the rule in the cases that the government addresses so the primary example is adjustment of status or adoption of a temporary status which i think is sort of a constructive admission that you don't have to leave the country and back i mean when you say it's a constructive admission constructive is a word that lawyers use in an effort to show that something that is not something else actually is that other thing right yes but the point is you're trying to get into a new government also had linked hand and lp are fitted fit that status you say if he leaves the country for more more than one hundred and eighty days abandonment of the status i think one of them is committing a crime in a foreign country and there's a couple of other ones like a list of enumerated criteria in section one hundred and eleven could you go back and finish your answer to justice alito i  understand he asked about the other provision referred just to a status yeah and you mentioned the st one the red seems somewhat logical for her about the other so i think that the only other ones are these two for these very narrow classes for temporary use like certain entrance before nine hundred and eighty two dollars and something about special agricultural workers and actually those provisions in the sections talking about adjustment of status for those people it also says that if the they also have to leave their status is terminated those statutes were in active many years i think in the eighty's many years before iraq so i mean it's different subject matters it's not about l p r either it's active different times i think they're less relevant in these cluster of statutes about removal mentioned a few minutes ago but i'd just like to elaborate a little bit it says the attorney general may counsel removal from illian who is inadmissible or removable or deportable excuse me and so like that's just like to twenty six you're talking about removal and inadmissible in and so it just seems quite natural that it miscible as a reference to inadmissible act the theory right and you can't actually cancel removal but the point the point of the overall provision is to allow cancellation of remov record point the statute excludes those who have aggravated felony is right and then it excludes arguably two more categories those who have the list of crimes that make you deportable or the list of crimes that make you admissible so those are three categories that seem to suggest if those have been committed within the st seven years for those latter to write the aggravated felony at any time but the portable crimes seven years that were the inadmissible crime seven years why isn't that the overall structure to look at that makes you ineligible for cancellation of her mobile if you understand the structure well i think the structure has a different  it's quite relevant that for this aggravated assault offense here congress has actually decided that that's not a basis to deport him period so like it doesn't interrupt his continuous residence in the literal sense that ice can't come to his house and  congress has decided he gets to stay here so right but the point is you're already been determined that you're inadmissible or deportable yes now the question are you eligible for cancellation of that removal and the two things that congress said we should that i j should look at are have you been here for a sufficient period of time and had you not committed certain crimes aggravated felonies deportable fences within seven years in  within seven years if you committed anything within those three categories you're no longer going to be eligible for cancellation from movable so i'm not sure that's right way to read the statute because what it says is to stop the clock it's got to be a clock and then there's the nd part of the statute which has what we see as ok not only does it have to be on this list of crimes as st part but it has to have this particular type of consequence which is rendering you inadmissible or were movable and in fact that can keep to its current position is by disavowing precedent garcia correct that's correct and not only does the disavow it but i mean i i don't think that it's a very convoluted explanation that it's not very plausible i mean the in those exceptions it seems to me now that the government has abandoned chevron deference and what we're doing is just kind of lining up the two interpretations next to each other and seeing which ones are better i mean our understanding of why the statutes written the way it is is more plausible we hospitality of the united states yes i'd like to turn the purpose actually that might be a good time to do that i think that actually our interpretation makes sense and we have very good reasons for why congress would have wanted to do what it did so st of all i think it's at least somewhat relevant that congress decision that he shouldn't be deported for this offense it's true that she's deportable for other offenses but congress has also made the expressed decision that those other offenses shouldn't foreclose cancellation of removal so both of those things are true if you have this one offense which congress didn't even think was serious enough to deport him at all and then the other offenses which do make them deportable congress has decided to leave the door open a crack for cancellation of removal to me that sounds like congress kind of wanted this person to be eligible for discretionary relief he doesn't have to get it but at least have the door open rather than the scheme as the government contends this conviction which wasn't even serious enough to make him eligible for deportation simpliciter kind of pops back into relevance and springs over the crimes for which he is deportable and becomes the basis for saying that he's subject to mandatory to portability and just one other thing about i'm not really understanding that so there's a serious offense that makes you deportable yes ok now the question is are you eligible for cancellation yes of her move all and in looking at that any blemish even if it doesn't rise to the level something that might have made you portable is a problem congress suggested by broadening the list of things that could make you ineligible for cancellation of a move beyond those things that just make you portable in  the st instance why isn't that a better way to work out because it didn't do that but the reason that we're all here today is that the crimes that made him deportable congress decided that they actually don't foreclose eligibility for discretionary relief that's why we're only looking at this crime that didn't make him deportable they don't own but why don't you have something else you know but the thing is it's not like it's an aggravating characteristic based on other things like there's you apply a test and there's a certain convictions that apply and then you can certainly use the same conviction for both in principle it's not like you take one crime and then you look at the other crimes and acts and so it's just the crimes of stop the clock just don't include the crimes for which he was found a portable so it's just a little bit strange like you think that so he has his firearms conviction and the aggravated assault conviction and you think that you know either one is worse either one is worse than the other or they're the same level of bad for the purposes of the immigration system but it's hard to imagine why are rational legislator and you decide ok for step one for just remove ability we're going to say that the farm's conviction is worse than the aggravated assault conviction but at step two for the scene elian in the same case the sort of rank order of badness is flipped in step two is now the aggravated assault that's enough to class of convictions that stops the clock but why do you think mr unique ask if if you're right at the statute is set up to look to the proceed in that's just happened whether it's the in admissibility proceeding where the deport ability proceeding why is it that it's that the statute is written just in terms of the in and miss ability grounds like well so i wouldn't you have something where the inadmissibility people have admissibility grounds and the portability people have t portability grounds if there's this basic dichotomy in the statute it's a little hard to explain your honor i mean that aspect of the statute is something that has puzzled the b i as well because it has the st part has only one and then the nd part has both but i mean you know that  my my thinking though is that it's a puzzle and some puzzles for both sides but it's a little bit more of a puzzle for you because you emphasize so much the way the statute separates out two different classes of people well that's true but i mean it's the nd i mean the nd half of the statute that that does that i mean i it's hard to know what to make that is it is there's this b i a decision that holds that firearms convictions like petitioners doesn't trigger the stop them will be i actually the government in that case said that's crazy it's just clear that's the purpose and then the b i said no look it's not clear exactly how the statute got to be written this way but congress will quire this asymmetry in which the st part the referred to part the category of offenses only has some and congress evidently decided that only some offenses and not all should even be capable of stopping the clock just like you decided it's just aggravated felony should be capable of or close and cancellation and then in the nd part you talk about that the effect on the alien i just want to say one more thing about that i think it makes a certain kind of sense to say that like if you're being deported for a particular crime then that you can't use the time after that crime to be up to for purposes of continuous residence because in a sense as to sort of bureaucratic delay right you committed the crime and then you're waiting for the conviction and  the delay after the crime has nothing to do with bureaucratic the way it's just exclusively based on the fact that congress has decided not to deport the person so could you tell me why you didn't rely on  inconsistent with our appears to have held exactly as you want it i don't think that's a published decision that specifically result question well maybe not specifically but the government's relying on the publisher opinions to yeah i mean we i mean so that obviously makes this case easier for petitioner i will say that if the court concludes the statute is and big us but nonetheless construed as our way then under the brand x case to be i would be capable of reaching the contrary conclusion and  will decision that the government is even willing to defer to or is willing to to defend and rely on is just like a criminal statute or any other statute where there's no layer of deference to the agency the court you just decide what it thinks it means in the st and what do you do with the government's argument that it would have been very easy for congress to write the statute to wink to stop time offense to the offense charged in the removal proceedings i think the set you couldn't clear both ways i mean just look at this good moral character provision which is something we talk about in  then you can't be eligible for cancellation whether inadmissible or not that's like the clearest conceivable way of saying that if you're in the category of eleven people under one thousand one hundred and eighty two dollars which the government says petitioner is regardless of whether you're charged with  persons in seventy two whether inadmissible or not and then for the stop time rule which also applies to the ars requires that it renders the illini admissible so just answer your question i mean yeah i certainly you could've written it much more clearly our way and of course we wish it was clearly resolve this never mind that but why would it clearly resolve this this question doesn't say whether seeking admission or not so whether inadmissible yes so it doesn't matter so we don't think petitioner is inadmissible but it applies to requirement being that he must be seeking admission but that requirement can be found in the text of section eleven e to a to it can be found in the text of the stop time rule itself rather the stop time rule ties the operation  rule to an alien status as inadmissible independent of whether he is seeking admission or not and in that respect the stop time rule operates in the same way as many other provisions of the irony my friend describe were already admitted and not seeking admission moreover that that same section says if after being granted amnesty under that provision those aliens then committed an act that made them into admissable that that that gave special temporary residence status to a certain group of agricultural workers one million three hundred thousand dollars agricultural workers apply for relief under that section that operates the same way even if those aliens had already been admitted and were not seeking admission inadmissibility as a status was a crime for as a criterion for their eligibility for your friend on the other side of course site statutes that are to the opposite of fact in terms of how the term two a to see what that provision says is if an alien status is inadmissible has the consequence of leading to a decision about his removal then there is no judicial review in and twenty six dollars a and c there's an explicit reference there to that decision whether the alien has to be removed and what the statute says is if the alien status as inadmissible would result in that particular it doesn't apply at all and if his offense is there well and do your view remove him that's the end of it so what in heaven's name is removable from the us under twenty seven dollars a doing there now he has an answer to that question this is all tell you what the history of immigration law is that we treat differently applications for admission even people we found in the united states by the way who never applied for admission ok those are going to admissible once and those are the ones that what i called a applies to and now what b applies to everybody else they were properly admitted yes yes and then they committed a crime deportable under now he happens to fall his client within what seems to me is a quote mendis fluke it's somebody who actually did something that is listed in eighty two way and yet at least in his view is not listed in one thousand two hundred and twenty seven i didn't know there was such a person but lo and behold he comes up with this exceptions cl sutter and says his client is there ok now what do you say to that main argument that there is a and there is be in one your view be serves next to no purpose when congress wanted to make a i think i got that are ok and i can think that if i think i have it now lying if i don't buy that even if you don't buy that i don't think surplusage should be the be all end all and interpret in this statute even under petitioners reading the cross reference to statute is all written to defer to refer to this essential dichotomy that justice prior just set out and basically the back two thirds of the statute is all about well the people who have been rendered in unmissable and on the other hand the people who have been rendered deportable and and you have to think that they wrote it that way because they were thinking of these two groups of people each of which would be subject to differ and consequences and each of which should saying either or i mean this statute says or you know any writer would tell you sometimes you put it in there sometimes you just use an or either way it's just much more explicit than that if you look at the page top of page thirty five d appendix you have congress defining the meaning of the word removable and we acknowledge this issue is to remove out of the main kind of what i think the only context in which congress wrote into the statute this either or and how did they do it it did so by defining that congress could be and sure that might be a model of legislative draft in which we can all assume this statute does not but this statute does very clearly used to disjunctive as to two large clauses intentionally and purposefully when it does something like that back to the point that the chief justice me you're cherry picking what congress has not been is very consistent except in what your adversary pointed to in the basic structure that it amiss ability applies to people who have not been admitted to portability applies to people who have been admitted and each side is given a different set of rights each side is given a different set of burdens each side is given a different set of benefits or lack thereof and i don't see what's illogical to say that what congress was thinking about is if you're in removal proceedings you're eligible for cancellation of removal for those crimes that make you eligible meaning if you have to be mandatorily deported you have to be mandatorily deported but you've been here a long time whether a piece of it was and in a custody or not is irrelevant you get the same benefits for being a long time resident as you do in all parts of the eye any you have to prove certain things in l p r status there are certain benefits giving to l p r why is that in congress here especially when the structure of the very next provision the mandatory detention section is talking also about removal delivery i want to be very clear i do not think we're cherry picking at all we are giving the word inadmissible the same consistent meaning throughout the we're then reading the language around that provision and sometimes that language points to us was a specific circum specific consequence of that status this provision there is  an additional that there is a consequence both of them are tied around remove the ability there is a cause or at least the ability to ask for the pickup but the consequence here which is terminations of the period of continuous residence is tied only to the status of inadmissibility congress could have written even the stop time provision itself in many different ways that would have captured petitioners reading in fact the predecessor version saying you have to you could say this individual in front of us he's not you know admissible it's easy how could he be admissible they admitted  oh you mean he would have been indeed miscible had he not been admitted ok now that's a possible reading of it and that's why i just looking at the word  then go back to the original question of why in heaven's name if all you had to do was st you look at eleven a b to and see if his crime fits there and then said look we have identified in section one thousand one hundred and eighty two a two set of criminal and related offenses we think in general those are the offenses that rise to the level of being an abuse of the country's hospitality such that the aliens time would stop and then congress fought well certainly if those offenses are serious enough to render the inadmissible those should be given stop time affecting the why wouldn't you just say you know a person convicted of an offense listed the following sections you don't need all this hullabaloo about people being rendered inadmissible and people being rendered deportable unless you're talking about some kind of proceeding in which people have been rendered in admissible or people have been rendered the bill otherwise you could just say offenses listed in whatever statutes you wanted to say well because i think as i was saying congress the congress didn't start out with a set of offenses that would generally be serious  that are listed in that statute well i think that is what they refer to close they refer to cause refers to just the offenses of the sort of the generic elements based understanding of the offenses in the statute the problem is i think  insane judge is going to pick up these exceptions and transform them into actual grounds for disqualifying somebody from removal for the exceptions would remain the exceptions you don't need all this is in edible they say well was inedible before the person ate it but under justice briar's interpretation of disability suppose this person eats fish and then goes to the emergency room to have his stomach pumped is dependent on context because you wouldn't say a car is a movable if the car has just been moved and so to hear it's not clear that you would say an alien isn't it inadmissible if the alien has just been admitted so you know it could it couldn't there were the real question is what in unmissable means in the abstract the real question is look at the statute and say why does anybody write a statute that looks like this unless what the drafter is doing is to try to refer to two different categories of people who have just gone through two different kinds of removal person i don't think it's an embarrassment for our position that under our view the renders removal removal clause has only a modest role to play again if you read it's only logical to read the rd provision which doesn't mention section i mean to a two as doing the relatively modest role in that every of just picking up the things that are referred to or render and you know i will before you leave this think about the fish i'm not sure i got the fish but i'll think about the fish but i'm back and what in heaven's name is that clause doing you know the nd clause if you're right ok so you've had very brilliant and twenty seven in to be sure those exceptions didn't stop the person from being deported ok so look at the exceptions the only exceptions i can find that are relevant are those contained in a a small to big one and two those are the ones you're talking about and by the way it took me five seconds to put all those numbers in but it takes a congressman or a drafter only three seconds to read them and i would have said including those listed in and then i would have been in that number  that would have done including those listed in and i would have put that number in and then there would have been no problem and then you would have thought of no reason at all no i've never seen a statute drafted so many words status then they stop the time but if they're also happened to be serious enough to render you remove all those will stop the time to that doesn't mean that you don't apply the section eleven to two renders inadmissible language even in admitted because congress had written provisions in many other places of the i a e a where inadmissibility is indeed relevant even when the alien isn't needed so congress did not think there was some sort of disjunct between saying an alien was admission it's clear from the other provisions adjustment of status temporary protected status the two major parts of the immigration reform act of one thousand and six dollars that i mentioned at the outset it's even clear if you look at a provision of twelve  one of the classes of aliens inadmissible there's no adjudication of admissibility at that point the whole point of this the portability provision is that the immigration officer failed to adjudicate that person as inadmissible and yet the statute refers to that person as having that status of inadmissible such that another consequence can be attached to it later on in this case the portability we think the stop time roll works on this and i know that everybody i think just you seem to think that these minor offenses like a person who possesses a small amount of marijuana can that can make you inadmissible but not to portable because there's an exception to deport ability if we see juvenile offense you can't be deported but what you're now saying is that these minor offenses stop you from getting the benefits potential benefits of cancellation of removal and that that was clearly congress's intent i don't know why i should think that is clearly congress's intent given that its head and say that they weren't intending to limit the stop time rule to those who were in an invisibility status covers small number of  r's the ones that have left the country and are seeking readmission and others but i'm just not quite sure i understand why your reading is consistent with the solicit that congress has showed no p r s throughout the i any i think it has to do with the very narrow issue in front of this court no one no one thinks that a mere much marijuana possession conviction alone can render an l p r removable no one thinks a mere marijuana conviction alone can even render an l p r categorically ineligible for cancellation of removal the only question here is a question of the operation of how long after having convicted that offense can that can that alien continue to claim credit for being in the united states that's a very narrow question and our answer is some problem the problem really is though it's not so simple because they didn't or wouldn't have to worry about a small amount of marijuana generally even an admission of it without a criminal conviction and so why should the time stop under those circumstances ed where do we end up if it's ambiguous i think there would have to be grievous ambiguity for the court even to even care about that i think the traditional tools of construction continue continue time if you have an a for conviction you can't get a cancellation right off the bat so even today that provision is not doing a ton of work mr lew could you make sense of the verb tenses for me because i would which seems not to refer to something that could happen in the future if the alien again tried to gain admission right and i think the renders inadmissible the present tense just reinforces our interpretation because if you look at for this particular area this offense renders him inadmissible and that just follows i mean it just is a kind of thing to say when we know the alien has been admitted and could be you know could live here indefinitely to gain admission the next time around i mean i don't mean that's right i mean if i were a lawyer representing a client who had already been admitted i would definitely describe the consequences of his status as inadmissible after he had committed a crime like this and i would applies to two types of insulation not all the ties but the two types that we've been discussing here today thank you council five minutes mr unit thank you mr chief justice i'd like to begin by a comment that my colleague made that they are giving the word inadmissible the same consistent meaning across a statute that's just not accurate so in the mandatory detention statute it says that an alien who is inadmissible by reason of having committed two is subject to mandatory detention giving that meaning word the same consistent meaning would apply to any alien who merely has the status of a inadmissible even if you've already been admitted that's what they say inadmissible means and stop them they can see that that can't be right and already admitted alien can't be inadmissible for purposes of that statute so they are giving it a different meaning now the chief justice posed a question saying that well it seems to be on both sides and so it's a wash i think it is a wash that's very good for us because there's all the other stuff there's there's the comparison to good moral character and there's the structure of the i and a and everything else but i just like to push back a little bit on the idea that it's a wash because it seems to me that the statutes we're comparing it to are more relevant than the ones there are so like this mandatory detention statute it's covering remov procedures it was an active in arrear along with the stop time rule just a couple sections over that strikes me as more relevant than provisions that were enacted many years earlier that don't apply to l p r as at all which is what the government is relying upon so i actually think that can sometimes sound like a status clearly that true but it's just as clear that sometimes it's obvious that when you're talking about the removal proceeding self the word inadmissible were st what happened at the removal proceeding so i just think it's  look at the context in which the word appears i don't think that the th circuit comparison to drink of will really can answer the question presented and in the context of the statute which applies only during removal proceedings which all the surrounding provisions seem to  cases where both sides give one word meaning that the other side doesn't like for both sides it's not clear why congress included that except for the purpose of subsequent amendments which actually did ultimately materialize but the surprises on the government side is a lot more significant in the hole that the remov in there it's not just a matter of that there are surplusage i mean surplusage is generally bad but i think here it's more than that you see the words inadmissible and removeable paired with each other and i think that just implies that congress is thinking that those are the those are the two things that can happen to you and so that's why they're both there and same in the just the general statute governing removal procedures one thousand two hundred and twenty nine dollars a that says that the immigration judge shall decide the inadmissibility or the portability of an alien it's clear why those two words are that those are the two things that can happen that that's our interpretation perfectly because if you're found in admissible then you're in the admissible category and if you're found a portable then you're in that portable category or removal category excuse me i think that's a lot more persuasive than this rather convoluted argument from the government which apparently the government didn't even think of until its brief in this case because it explicitly did not make this argument in bank petition filed less than a year ago think thank you counsel