ANDRE MARTELLO BARTON, Petitioner, v. WILLIAM P. BARR, ATTORNEY GENERAL, Respondent
Interviewer(s): Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Ruth Bader Ginsburg, Brett M. Kavanaugh, Sonia Sotomayor
Interviewee(s): Frederick Liu, Adam G. Unikowsky

John G. Roberts, Jr.: We'll hear argument first this morning in Case 18-725, Barton versus Barr. Mr. Unikowsky.

Adam G. Unikowsky: Mr. Chief Justice, and may it please the Court: The question before the Court today is, what does it mean for an offense to render an alien inadmissible for purposes of the stop-time rule? The Court should hold that an offense renders an alien 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 Eleventh Circuit that inadmissible is a status, it should hold that an alien acquires that status when the alien is capable of being charged with inadmissibility. In this case, neither condition is satisfied.

Petitioner was not found inadmissible.

He wasn't capable of being found inadmissible.

Therefore, he was not rendered inadmissible. So I'd like to begin this morning with a concession the government makes at pages 29 and 30 of its 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 rule, when those words are used in a statute that has a connection to the alien's own removal proceeding, they're a reference to the charge against the alien at that proceeding. They're not a status. So the government agrees that in those contexts, its proposed interpretation of the words "inadmissible" and "removable" in the stop-time rule is incorrect.

So, in Section 1226, the mandatory detention statute, that says that an alien who is inadmissible by reason of having committed an offense under Section 1182 is subject to mandatory detention, the government agrees there that "inadmissible" is a reference to inadmissible at the proceeding, not just the status of being inadmissible. The government says that's natural in that context, and we agree, because that's a statute with the relationship to the alien's removal. Same thing in Section 1252.

That's the jurisdiction-stripping statute.

That says that courts of appeals don't have jurisdiction to hear petitions for review by an alien who is removable for certain specified reasons.

There, too, the government agrees removable 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 alien's removal proceeding. So the question in this case boils down to whether the government has put forward a sufficient case for holding that the words "inadmissible" and "removable" in the stop-time rule 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 contextual clues that apply in the nearby statutes also apply in the stop-time rule, or at least there isn't a sufficient reason for construing those statutes differently. So, first 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 decides whether an offense renders the alien inadmissible or removable.

And then the immigration judge decides eligibility for cancellation.

Sonia Sotomayor: That's not quite true, though.

Some aliens concede removability and are seeking cancellation.

Adam G. Unikowsky: Yes, that's correct.

Sonia Sotomayor: And then there are some that are ordered -- who are found inadmissible or removable not on the basis of a crime at all.

Adam G. Unikowsky: So that's true, but in --

Sonia Sotomayor: So you have two classes of people that aren't covered by the way you're reading admissibility now.

Adam G. Unikowsky: No, but there's still a threshold finding of inadmissibility or removability.

It's true there might not be a hearing; there might be a concession.

But, in the most typical cases, it's based on an offense, and in every case, there's just been a holding, an adjudication, that for some reason the alien is inadmissible or removable.

Sonia Sotomayor: But --

Samuel A. Alito, Jr.: Mr. Unikowsky, could I -- could -- could I possibly get an argument off the table? Do you really want to argue that the concept of inadmissibility is not a status?

Adam G. Unikowsky: I think that the word varies depending on the context in which it's being used.

So I can't --

Samuel A. Alito, Jr.: Okay.

Well, that's a different question in -- but is -- is or is not the concept of inadmissibility a status?

Adam G. Unikowsky: I think that it can -- the word can mean two things.

I mean, I agree with you that the DLE sounds like a status at least in some contexts.

I can't -- I'm not conceding -- I'm not going to argue something that's obviously wrong. There are certain contexts in which the way using that word it sounds like a status. So I agree, if you go to your lawyer before the hearing and say, hey, I want to go to Niagara Falls, am I inadmissible, 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 itself --

Samuel A. Alito, Jr.: 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 it would be.

Adam G. Unikowsky: Yeah.

Samuel A. Alito, Jr.: Somebody is in Europe and is going to buy a ticket to come to the United States.

If that person does not satisfy -- that person is inadmissible, that person is inadmissible at the time when the ticket is purchased --

Adam G. Unikowsky: So I --

Samuel A. Alito, Jr.: -- or at the time when the person gets on a bus in Central America to come to the southern border, or if evidence is inadmissible, it's inadmissible before the attorney tries to admit it at trial, right?

Adam G. Unikowsky: 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 itself, what you really mean is inadmissible at that proceeding.

So, again, I think 1226 is a perfect example of this.

Samuel A. Alito, Jr.: Okay.

So --

Adam G. Unikowsky: Yeah.

Samuel A. Alito, Jr.: -- that -- that's the -- what I want to get off the table.

So it is a status when -- you may or may not agree with me, I gather that you don't.

But, if I think it is a status, then the question is whether -- is the context in which this status can be assessed, right?

Adam G. Unikowsky: Yeah, I mean, I'm comfortable calling it a status if we define the relevant status as status of inadmissible at that proceeding, as opposed to status of theoretically --

Samuel A. Alito, Jr.: Okay.

Then you have to show why, in the context of a -- a removal proceeding for an LPR who has not left the country, there cannot be a -- an assessment of inadmissibility of the status.

You have to show why that is so.

Adam G. Unikowsky: So I think it's for many of the same reasons why we agree with the adjacent statute that that is so. So, first of all, just contextually, it seems to me it's quite natural when at step one of the proceeding there's an adjudication. Maybe it's conceded, but there's some kind of adjudication that the alien is, in fact, inadmissible or removable. And then the next step, the immigration judge is asked to decide, does this offense render the alien inadmissible or removable? I just think it's 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. I -- I also think that the -- the opening stanza of the cancellation of removal statute is actually quite good for us.

It says something to the effect of the attorney general may cancel removal for an alien who is inadmissible or deportable.

That's actually quite a lot like 1226, the mandatory detention statute, in that it has removal and then inadmissible and deportable sort of in the same breath.

Samuel A. Alito, Jr.: Do you dispute the fact that there are other provisions in the immigration laws in which inadmissibility is assessed at a time other than when an alien is seeking admission to the country?

Adam G. Unikowsky: So I -- yes, I do. And 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, like you don't have to leave the country and come back.

Samuel A. Alito, Jr.: Well, 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?

Adam G. Unikowsky: Yeah, but the point is you're -- you're trying to get into a new status, which is sort of like trying to get into a new country, like the status is as if you're being admitted into a new -- it's not like a latent -- the government says that in 1996 this like latent status was conferred on him that just stuck with him for all these years, which is different from when you're affirmatively seeking eligibility for a new status, which is kind of like affirmatively seeking eligibility to enter the country. So I think that's just conceptually different.

And, by the way, that doesn't apply to -- to LPRs like Petitioner.

There actually is no other concept -- context in which the concept of inadmissibility has any relevance to an LPR.

Ruth Bader Ginsburg: When -- when --

Adam G. Unikowsky: The government also has --

Ruth Bader Ginsburg: -- when can an LPR fit -- fit that status? You say if he leaves the country for more -- more than 180 days.

Adam G. Unikowsky: Yes.

Ruth Bader Ginsburg: What other sit -- in what other situations can a lawfully permanent resident be subject to the status of ineligibility?

Adam G. Unikowsky: So there's --

Ruth Bader Ginsburg: Inadmissibility?

Adam G. Unikowsky: I'm sorry.

So there's several enumerated criteria.

Probably the one most relevant to this case is that the statute provides that if you've committed a crime on the inadmissibility list, under 1182, and then you leave, you need to seek admission again. Now there's one wrinkle on the specific facts of this case, that that statute doesn't apply to Petitioner because he committed his crime before the -- IIRARA's enactment.

But in the general mine run -- and we're not relying on that as the basis to decide this case.

Ruth Bader Ginsburg: But what else besides leaving the country and coming back?

Adam G. Unikowsky: So leaving for 180 days, abandonment of the status.

I think one of them is committing a crime in a foreign country, and -- and there's a couple of other ones. There's like a list of enumerated criteria in Section 1101.

Sonia Sotomayor: Could you go back and finish your answer to Justice Alito? I understand he asked about the other provisions --

Adam G. Unikowsky: Yes.

Sonia Sotomayor: -- that refer just to a status.

Adam G. Unikowsky: Yeah.

Sonia Sotomayor: And you mentioned the first one, and --

Adam G. Unikowsky: Right.

Sonia Sotomayor: -- that seems somewhat logical.

But how about the others?

Adam G. Unikowsky: So I think that the only other ones are these two, for these very narrow classes for temporary aliens, like certain entrance before 1982 and something about special agricultural workers. And, actually, those provisions in the -- in the sections talking about adjustment of status for those people, it also says that if they're inadmissible, they also have to leave. Their status is terminated. Those statutes were enacted many years -- I think in the '80s, many years before IIRARA.

So, I mean, it's different subject matters.

It's not about LPR.

They're enacted at different times.

I think they're less relevant in these cluster of statutes about removal which were all or almost all enacted in IIRARA itself.

They all address the same subject matter. To me, if you're going to look at consistent usage, those are the ones to use.

I actually think that like our best argument on consistent usage is maybe just the intro to the cancellation of removal statute.

And I -- I mentioned a few minutes ago, but I'd just like to elaborate a little bit. It -- it says the Attorney General may cancel removal for an alien who is inadmissible or removable -- or deportable, excuse me, and so like that's just like 1226.

You're talking about removal and inadmissible in the same sentence. And so it just seems quite natural that inadmissible is a reference to inadmissible at the hearing, right? And you can't actually cancel removable --

Brett M. Kavanaugh: But the point -- the point of the overall provision is to allow cancellation of removal for those who've been in the U.S. for a long time and have had clean records.

You agree so far?

Adam G. Unikowsky: Well, clean -- it doesn't have to be completely clean --

Brett M. Kavanaugh: Right.

Adam G. Unikowsky: -- but yes.

Brett M. Kavanaugh: But generally clean.

Adam G. Unikowsky: Yes.

Right.

Brett M. Kavanaugh: Okay.

And on the clean record point, the statute excludes those who have aggravated felonies --

Adam G. Unikowsky: Yes.

Brett M. Kavanaugh: -- 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 the three categories that seem to suggest if -- if those have been committed within the first seven years for those latter two, right? The aggravated felony at any time, but deportable crimes, seven years, the -- the inadmissible crimes, seven years. Why isn't that the overall structure to look at that makes you ineligible for cancellation of removal, if you understand the structure?

Adam G. Unikowsky: Well, I -- I think the structure has a different conclusion.

I think it's -- 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 -- and deport him for it.

He -- Congress has decided he gets to stay here, so --

Brett M. Kavanaugh: Right.

But the -- the point is you're already been determined that you're inadmissible or deportable.

Adam G. Unikowsky: Yes.

Brett M. Kavanaugh: Now the question, are you eligible for cancellation of that removal, and the two things that Congress said we should -- that IJs should look at are, have you been here for a sufficient period of time and have you not committed certain crimes: aggravated felonies, deportable offenses within seven years, inadmissible offenses within seven years. If you've committed anything within those three categories, you're no longer going to be eligible for cancellation of removal.

Adam G. Unikowsky: See, I'm not sure that's the right way to read the statute because what it says is, to -- to stop the clock, it's got to be a crime referred to in 1182, that's the inadmissibility list, and then that renders you inadmissible or removable. So the way I -- I look at that is that the first part of that referred to in 1182, that's the category of crimes that's capable of stopping the clock. And then there's the second part of the statute, which has what we see as, okay, not only does it have to be on this list of crimes, that's the first part, but it has to have this particular type of consequence, which is rendering you inadmissible or -- or removable. And, in fact, that leads to an argument we make about -- about surplusage, that it makes more sense to view the statute that way than the government's way because, under the government's position, at least until it filed its brief in this case, it conceded that the removable portion of the statute was total surplusage.

Sonia Sotomayor: The only way it can keep to its current position is by disavowing a BIA precedent, Garcia, correct?

Adam G. Unikowsky: That's correct.

And not only does it disavow it, but, I mean, I -- I don't think that that's a -- it's a -- it's a very convoluted explanation.

It's not very plausible.

I mean, the government's position depends on this theory that what Congress was trying to do was distinguish between crimes that are expressly excepted from 1182 and that are merely not listed in 1182 and the exceptions, that's the -- the reason for the removal clause is to get these exceptions in, right? So 1182 says something like, all aliens except juveniles who commit crimes involving moral turpitude are inadmissible.

The government's view is that that's like very different from just saying all adults, even though those mean the same thing, because like juveniles are in the exceptions clause and, therefore, that stops the clock for purposes of cancellation of removal.

That's a very convoluted scheme. And especially -- and it's somewhat unlikely that the removable clause, which seems to be talking about removable aliens, was actually put in to get 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 one's better. I mean, our understanding of why the statute's written the way it is, is more plausible.

We say it's a --

Samuel A. Alito, Jr.: You make a -- before you get to that, you make a fleeting reference to Chevron in your reply brief.

So do you want us to defer to something? Do you want us to defer to the BIA --

Adam G. Unikowsky: On the --

Samuel A. Alito, Jr.: -- on anything --

Adam G. Unikowsky: Yes.

On --

Samuel A. Alito, Jr.: -- or just on the decision that you like?

Adam G. Unikowsky: Just on the decision that we like, Your Honor. (Laughter.)

Sonia Sotomayor: Well, that's what --

Adam G. Unikowsky: So --

Sonia Sotomayor: -- the government is doing.

Adam G. Unikowsky: Yes.

So --

Sonia Sotomayor: It likes this decision --

Adam G. Unikowsky: I have a -- I have a --

Sonia Sotomayor: -- but it doesn't like Garcia.

Adam G. Unikowsky: -- I have a principled reason for that, Your Honor.

First of all --

Samuel A. Alito, Jr.: I'm sure. (Laughter.)

Adam G. Unikowsky: -- the government expressly waives Chevron deference --

Samuel A. Alito, Jr.: Uh-huh.

Adam G. Unikowsky: -- on the quest -- on this Jurado case, and so that's -- that's good for us.

I mean, it makes it much easier for us that now there's no Chevron deference.

And we walk through in our brief that the arguments given in this Jurado case are clearly wrong.

So this Court's cases hold that even if a statute's ambiguous, you don't defer to an agency decision that's clearly wrong, which I think is true for this Jurado case.

The government doesn't even try to defend it, they bury it in a footnote.

Ruth Bader Ginsburg: Well, what about the simple, but it has a certain appeal, argument the government is making, this is a very dense statute, that if we ask why would Congress -- why wouldn't Congress want the clock to stop when an alien has committed a qualifying offense showing that he has abused the hospitality of the United States?

Adam G. Unikowsky: Yeah.

So I'd like to turn to purpose actually.

It 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, first of all, I think it -- it's at least somewhat relevant that Congress made the express decision that he shouldn't be deported for this offense.

It's true that he's deportable for other offenses, but Congress has also made the express decision that those other offenses shouldn't foreclose cancellation of removal. So, if 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 him 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 where, 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 -- to mandatory deportability. And just one other thing about --

Brett M. Kavanaugh: I'm not really understanding that.

Adam G. Unikowsky: Yes.

Brett M. Kavanaugh: So there's a serious offense that makes you deportable.

Adam G. Unikowsky: Yes.

Brett M. Kavanaugh: Okay.

Now the question is, are you eligible for cancellation --

Adam G. Unikowsky: Yes.

Brett M. Kavanaugh: -- of removal? And in looking at that, any blemish, even if it doesn't rise to the level of something that might have made you deportable, is a problem, Congress suggested, by broadening the list of things that could make you ineligible for cancellation of removal beyond those things that just make you deportable in the first instance. Why isn't that a better way to look at it?

Adam G. Unikowsky: Because it didn't do that.

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 -- for a discretionary relief.

That's why we're only looking at this crime that didn't make him deportable.

Brett M. Kavanaugh: They don't on their own --

Adam G. Unikowsky: But you don't --

Brett M. Kavanaugh: -- but if you have something else --

Adam G. Unikowsky: No, but the -- the scheme is it's not like it's an aggravating characteristic based on other things.

Like, there's -- you apply a test and there's certain convictions that apply and then it -- you can certainly use the same conviction for both in principle.

It's not like you take one crime and then you look at what other crimes he has. And so it just -- the -- the crimes that stop the clock just don't include the crimes for which he was found deportable.

So it -- it's just a little bit strange.

Like, you'd think that -- so he has this firearms conviction and the aggravated assault conviction and you'd think that, you know, either one is worse -- either one's worse than the other or they're the same level of bad from the purposes of the immigration system. But it's hard to imagine why a rational legislator and you decide, okay, for step one, for just removability, we're going to say that the firearms conviction is worse than the aggravated assault conviction, but, at step two, for the same alien in the same case, the sort of rank order of badness is flipped.

In step two, it's now the aggravated assault that's enough to foreclose discretionary relief, but not the firearms conviction.

That's a pretty common --

Brett M. Kavanaugh: Well, it's because the timing --

Elena Kagan: Mister --

Brett M. Kavanaugh: -- it was because of the timing.

Adam G. Unikowsky: No, but that's actually not the case because both those convictions -- it's the same day and the same incident.

It's just the firearms conviction just -- because it's not in 1182, so it just -- it's not within the class of convictions that stops the clock.

Elena Kagan: Well, why do you think, Mr. Unikowsky, if -- if -- if you're right that this statute is set up to look to the proceeding that's just happened, whether it's the inadmissibility proceeding or the deportability proceeding, why is it that it's -- that the statute is written just in terms of the inadmissibility grounds? Like --

Adam G. Unikowsky: So that --

Elena Kagan: -- well, why wouldn't you have something where the inadmissibility people have admissibility grounds and the deportability people have deportability grounds if there's this basic dichotomy in the statute?

Adam G. Unikowsky: It's a little hard to explain, Your Honor.

I mean, that aspect of the statute is something that has puzzled the BIA as well because it -- the first part has only one and then the second part has both. But, I mean, you know, that's -- the BIA has said we have to construe that literally. Congress did this a -- it was very clear that they're asymmetric.

The first part is just one-half and the second part is both halves. They could easily have just put in 1182 or 1227 in the first part, and then we wouldn't be here because you -- the firearms conviction would foreclose.

Elena Kagan: I guess my -- my thinking, though, is that it's -- it's a puzzle. It's a puzzle 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.

Adam G. Unikowsky: Well, that's true, but, I mean, the -- it's the second -- I mean, the second half of the statute that -- that does that.

I mean, I -- I -- it's hard to know what to make of that statement. So there's this BIA decision that holds that firearms convictions like Petitioner's doesn't trigger the stop-time rule. The BIA -- actually, the government in that case said that's crazy; it's just clear that's the purpose.

And then the BIA said, no, look, it's not clear exactly how the statute got to be written this way, but Congress required this asymmetry in which the first 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 it decided that just aggravated felonies should be capable of foreclosing cancellation, and then, in the second part, it talked -- looked at the effect on the alien. I just want to say one more thing about that.

I -- 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 -- for purposes of continuous residence because, in a sense, it's just sort of bureaucratic delay, right? You've committed the crime, and then you're waiting for the conviction, and then you're waiting for the deportation proceeding. But sort of the die is cast when you've committed the crime.

And so there's certain logic to stopping the clock as of the commission of the crime that really doesn't work here, where Congress isn't even capable of deporting you based on this aggravated assault crime.

So the -- the delay after the crime has nothing to do with bureaucratic delay; it's just exclusively based on the fact that Congress has decided not to deport the person.

So it --

Sonia Sotomayor: Could you tell me why you didn't rely on Lara-Terrazas?

Adam G. Unikowsky: On -- on what, Your Honor?

Sonia Sotomayor: Lara-Terrazas. The Capitol Area Immigration Rights Coalition said the BIA read this provision pretty much as your second alternative previously.

Adam G. Unikowsky: Well, I mean, I think that -- so we think the BIA has not decided the -- on the second question, so the -- Jurado clearly is inconsistent with our -- our -- our first --

Sonia Sotomayor: No, but Lara-Terrazas appears to have held exactly as you wanted.

Adam G. Unikowsky: I -- I -- I don't think that's a published decision that specifically resolved the question.

Sonia Sotomayor: Well, maybe not specifically, but the government's relying on unpublished opinions too.

Adam G. Unikowsky: Yeah, I mean, we -- we -- I mean, there's a published decision -- I mean, obviously, in this case, there's an unpublished decision rejecting my -- my client's claim.

So I, you know -- and Jurado is the primary published decision that -- that's on point.

We acknowledge that it's inconsistent with our reading, but we said it just shouldn't be deferred to because it's irrational.

The government agrees with that.

And so that obviously makes this case easier for Petitioner. I will say that if the Court concludes the statute is ambiguous but nonetheless construes it our way, then, under the Brand X case, the BIA would be capable of reaching the contrary conclusion and the Court would be able to defer to that if it holds that the agency's reasoning is -- is reasonable.

That's what the Brand X case holds. But, you know, of course, if the Court holds that it's unambiguous, then the agency wouldn't be capable of doing that.

But, on the record currently before the Court, when there's no Chevron -- no precedential decision that the government is even willing to defer to or is willing to -- to defend and rely on, it's just like a criminal statute or any other statute where there's no layer of deference to the agency, the Court should just decide what it thinks it means in the first instance.

Brett M. Kavanaugh: What do you do with the government's argument that it would have been very easy for Congress to write the statute to link the stop-time offense to the offense charged in the removal proceeding?

Adam G. Unikowsky: I mean, I think the statute could have been clearer both ways.

I mean, just looking at this good moral character provision, which is something we talk about in our brief, it's like a model of -- of draftsmanship and how clearly it could have been written our way.

I mean, that statute says that if you have committed a crime during the continuous residence period, that puts you into the classes of persons described in 1182, then the clock -- then you can't be eligible for cancellation, whether inadmissible or not. So that's like the clearest conceivable way of saying that if you're in the category of 11 -- of people under 1182, which the government says Petitioner is, that regardless of whether you're charged with inadmissibility, you're not eligible. So Congress said that was a requirement only for non-LPRs to seek cancellation of removal and not LPRs.

And this isn't just a matter of differently worded statutes.

It's as differently worded as they could conceivably be.

You have, like -- for non-LPRs, it says in the classes of persons in 1182, whether inadmissible or not, and then, for the stop-time rule, which also applies to LPRs, it requires that it renders the alien admissible. So, just to answer your question, I mean, yeah, certainly, you could have written it much more clearly our way, and, of course, we wish it was, but it seems to me that when -- you know, when there's just a crystal-clear statute that would have accomplished exactly what the government wants, which Congress applied only to non-LPRs and not LPRs --

Samuel A. Alito, Jr.: Why would the -- why would the good time rule clearly resolve this -- never mind.

John G. Roberts, Jr.: Finish.

Samuel A. Alito, Jr.: Oh, why would it clearly resolve this -- this question? It doesn't say whether seeking admission or not.

Adam G. Unikowsky: It --

Samuel A. Alito, Jr.: It says whether inadmissible or not.

Adam G. Unikowsky: Yeah, so it doesn't matter -- so we don't think Petitioner is inadmissible.

But it applies to the alien whether inadmissible or not, as long as he's in the classes of people in 1182, which he clearly is.

John G. Roberts, Jr.: Thank you, counsel. Mr. Liu.

Frederick Liu: Mr. Chief Justice, and may it please the Court: The statutory text alone is enough to resolve this case.

The question is whether Petitioner has committed an offense that renders him inadmissible under Section 1182(a)(2). To find the answer, we look to the text of Section 1182(a)(2), and it says that any alien who is convicted of a crime involving moral turpitude is inadmissible.

There's no dispute in this case that Petitioner has -- has been convicted of a crime involving moral turpitude.

Therefore, he has been -- he has committed an offense that renders him inadmissible under Section 1182(a)(2), and that should be the end of the matter. Now Petitioner says there's an added requirement in the statute, that requirement being that he must be seeking admission.

But that requirement can't be found in the text of Section 1182(a)(2).

It can't be found in the text of the stop-time rule itself.

Rather, the stop-time rule ties the operation of the rule to an alien's 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 INA.

My friend described some of those provisions as obscure, but I think they're anything but.

For example, we cite a number of them on pages 17 to 19 of our brief. One of them is 8 U.S.C. Section 1255(a).

This was a major part of the Immigration Reform and Control Act of 1986; 1.7 million aliens applied for relief under this section.

And what that section says is that those aliens would be ineligible for relief if they had the status of being inadmissible.

And that's so even if those aliens 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 inadmissible, that amnesty status would -- would have been terminated.

So it works just like the stop-time rule in this case and, indeed, mirrors the operation of that rule. Another example is Section 1160. That's another major part of that same Act. That said that -- that gave special temporary resident status to a certain group of agricultural workers; 1.3 million agricultural workers applied for relief under that section. It operates the same way. Even if those aliens had already been admitted and were not seeking admission, inadmissibility as a status was a cry -- was a criterion for their eligibility for that status.

John G. Roberts, Jr.: Well, your -- your friend on the other side, of course, cites statutes that are to the opposite effect in terms of how the term is used.

So it strikes me that this business about this is how they use it in other places, it's almost a wash.

Frederick Liu: I don't think so, Mr. Chief Justice.

In our view, the word "inadmissible" means the same thing throughout the INA.

Every time the word "inadmissible" appears, it is referring to an alien's status under Section 1182(a)(2). What the stat -- what the statute does in other provisions is tie different consequences to that status.

So my friend mentions the judicial review provision in Section 1252(a)(2)(C). What that provision says is, if an alien's status as inadmissible, has the consequence of leading to a decision about his removal, then there's no judicial review in the courts of appeals. So, in other words, that -- that statute does exactly what the stop-time rule doesn't.

It refers specifically to the decision to remove and -- and -- and ties the operation of the rule to that. Same with the mandatory detention provision.

This is 8 U.S.C. Section 1226(a) and (c).

There's an explicit reference there to the decision whether the alien is to be removed. And what the statute says is, if the alien's status as inadmissible would result in that particular consequence, then that alien can be detained on a mandatory basis.

Stephen G. Breyer: Well, but, look -- look, the -- the main argument as I understand it -- and this statute is as obscure as any I've seen.

All right.

Look, let's read it. When the alien has committed an offense referred to in Section 1182(a)(2) of this title, so we go look and see.

Has he committed an offense referred to? Yes. Now then what? An offense that, A -- I put in the A -- renders the alien inadmissible or, B, removable under 1227(a).

Now, if you're right, there was no need for that clause, the second clause, because the first thing you do is look to 1182. 1182, if his offense isn't there, forget it.

It doesn't apply at all.

And if his offense is there, well, under your view, remove him.

That's the end of it. So what in heaven's name is removable from the U.S. under 1227(a) doing there? Now he has an answer to that question.

He says, I'll 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, okay? Those are the inadmissible ones.

And those are the ones that what I called A applies to. And now what B applies to is 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 tremendous fluke, that is, somebody who actually did something that is listed in 82(a) and yet, at least in his view, is not listed in 1227. I didn't know there was such a person. But, lo and behold, he comes up with this exceptions clause, et cetera, and says his client is there. Okay.

Now what do you say to that main argument, that there is A and there is B, and on your view, B serves next to no purpose?

Frederick Liu: When Congress wanted to make A and B an either/or, it said so expressly in the Act, so --

Stephen G. Breyer: I know, but I can't think -- that isn't going to be an answer because they'd say, sometimes they do say A/B, sometimes they don't say A/B, it wasn't a genius who drafted this and he forgot the A and the B and he -- but he did put in the or.

And so, all right, I've got that point.

What's your next point?

Frederick Liu: My next point is I think -- well, I guess two points.

One is we don't think the renders removable clause is superfluous when the referred to in Section 1182(a)(2) clause is given its proper meaning, but -- and I'm happy to get into that.

Even if you don't buy that and you think there's some sort of question left --

Stephen G. Breyer: Well, you're talking about the ones who are the -- the -- the under 18 and the -- and the -- there's an -- I -- I think I got that argument.

Frederick Liu: Okay.

Stephen G. Breyer: And I can think that if -- I think I have it.

You're right about it.

Elena Kagan: Okay.

Even if we don't buy that?

Frederick Liu: Even if you don't buy that, I don't think surplusage should be the be all, end all in interpreting this statute.

Even under Petitioner's reading, the cross-reference to Section 1227(a)(4) was pure surplusage from 19 --

Elena Kagan: But, Mr. -- Mr. Liu, this is more than your typical case of surplusage.

I mean, obviously, surplusage sometimes gives way to other things.

But this whole statute, like the structure and the content of this statute, is all written to -- to refer to this essential dichotomy that Justice Breyer just set out.

I mean, basically, the back two-thirds of the statute is all about, well, the people who have been rendered inadmissible, 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 different consequences and each of which should be looked to separately.

Frederick Liu: I -- I don't think so, Justice Kagan.

And I'll just re-emphasize the point I made to Justice Breyer, which is, when Congress did want to create that dichotomy, it wrote that dichotomy into the statute.

So --

Elena Kagan: But by doing what? You said by saying either/or.

I mean, this statute says or.

You know, any writer would tell you, sometimes you put in an "either," sometimes you just use an "or." Either way, it's disjunctive.

Frederick Liu: It's much more explicit than that.

If you look at the page -- top of page 35A of our statutory appendix, you have Congress defining the meaning of the word "removable." And we acknowledge decisions to remove are the main con -- well, I think the only context in which Congress wrote into the statute this either/or. And how did it do it? It did so by defining "removable" as "in the case of an alien not admitted to the United States, that the alien is inadmissible, or, B, in the case of an alien admitted to the United States, the alien is deportable." That's how explicit Congress is.

It's not just --

Elena Kagan: Well, it's how --

Frederick Liu: -- either/or.

Elena Kagan: -- explicit Congress could be, and, sure, that might be a model of legislative drafting which we can all assume this statute is not. But this statute does very clearly use the disjunctive as to two large clauses, one of which talks about inadmissible aliens and the other of which talks about removable or deportable, whatever word you want, aliens.

Frederick Liu: And I think Congress was also clear in the cross-reference to -- to Section 1182(a)(2) and the renders inadmissible clause that any alien who is convicted of a crime involving moral turpitude is inadmissible. There are many ways Congress could have written that provision to get to the result Petitioner would like us to get to.

There are other provisions in 1182 that tie the status of inadmissible to an alien who is at that time applying for admission or seeking admission. But, in 1182(a)(2) itself, Congress left those words out.

And I think usually this Court presumes that Congress acts intentionally and purposefully when it does something like that.

Sonia Sotomayor: Go back to the point that the Chief Justice made.

You're cherry-picking.

What Congress has not been is very consistent, except in what your adversary points to in the basic structure, that inadmissibility applies to people who have not been admitted, deportability 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 in -- in BIA custody or not is irrelevant.

You get the same benefits for being a long-time resident as you do in all parts of the INA. You have to prove certain things in LPR status.

There are certain benefits given to LPR.

Why is that incongruous here?

Frederick Liu: Well, I -- I -- I --

Sonia Sotomayor: Especially when the structure of the very next provision, the mandatory detention section, is talking also about removability?

Frederick Liu: I -- 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 INA.

We are then reading the -- the language around that provision and sometimes that language points to a specific circum- -- a specific consequence of that status. This provision --

Sonia Sotomayor: There is a consequence.

Frederick Liu: -- attaches additionals.

Sonia Sotomayor: There is a consequence.

Both of them are tied around removability.

There is a consequence. You're -- or at least the ability to ask for cancellation.

Frederick Liu: But the -- but the consequence here, which is termination 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 Petitioner's reading. In fact, the predecessor version of this statute, former Section 1244(a), said, if the alien commits an act constituting a ground of deportation, that person is eligible for --

Stephen G. Breyer: I -- I accept that you can read the word "inadmissible" -- I'm not saying you have to, but you could say this individual in front of us, he's not inadmissible. It's -- he's been admitted.

How could he be inadmissible? They admitted him.

Ahh, you mean he would have been inadmissible had he not been admitted.

Okay? (Laughter.)

Stephen G. Breyer: Now that's a possible reading of it.

And that's why just looking at the word "inadmissible" doesn't tell us whether we should read it with a "he would have been" or whether we should read it as "would be now" or -- there are 15 -- not 15, okay, got that. Now, once we're into that bog, we then go back to the original question of, why, in heaven's name, if all you had to do was first you look at 1182 and see if his crime fits there, and then you see if it made him inadmissible, for everybody.

Well, of course, it did.

It -- I mean, you know, there we are. And -- and what's this second part doing there? Unless it picks up --

Frederick Liu: Yeah.

Stephen G. Breyer: -- that traditional history.

Now that's the same question I asked before, same question Justice Kagan asked, and -- and that's, I think --

Frederick Liu: This --

Stephen G. Breyer: -- what's bothering me.

Yeah.

Frederick Liu: -- this is what we think Congress was thinking.

Everyone agrees that Congress began with the universe of offenses referred to in Section 1182(a)(2).

Everyone agrees that's -- that's text in the statute, you can't have a 1227 offense unless -- that stops the time, unless it's referred to in Section 1182(a)(2). And we think what Congress was trying to do was it looked across the INA and it said, look, we have identified in Section 1182(a)(2) a 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 alien's time would stop. And then Congress thought: Well, certainly, if those offenses are serious enough to render the alien inadmissible, those should be given stop-time effect.

Elena Kagan: But --

Frederick Liu: And so --

Elena Kagan: -- why wouldn't you just say, you know, a person convicted of an offense listed in the following sections? You don't need all this hullabaloo about people being rendered inadmissible --

Stephen G. Breyer: That's the point.

Elena Kagan: -- and people being rendered deportable unless you're talking about some kind of proceeding in which people have been rendered inadmissible or people have been rendered deportable.

Otherwise, you could just say offenses listed in whatever statutes you wanted to say.

Frederick Liu: Well, because I think, as -- as I was saying, Congress -- Congress did start out with the set of offenses it thought would generally be serious enough.

Those are the offenses referred to in Section 1182. Congress thought, well, if they're serious enough to render the alien inadmissible, they should certainly qualify as stop-time effect.

But, at the same time, Congress recognized that there were exceptions in Section 1182, juvenile offenses --

Elena Kagan: Yeah, but the exceptions --

Frederick Liu: -- petty offenses, that wouldn't be --

Elena Kagan: -- I mean, the idea that the exceptions would be picked up somehow if you just said listed in the -- it doesn't transform an exception.

An exception would remain the exception.

It's just the actual offenses that are listed in that statute.

Frederick Liu: Well, I think that is what the "referred to" clause.

The "referred to" clause refers to just the offenses, the sort of the generic elements-based understanding of the offenses in the statute. The problem is I think Congress realized Section 1182(a)(2) contains a bunch of circumstance-specific exceptions to those --

Elena Kagan: Yeah, and --

Frederick Liu: -- to those provisions.

Elena Kagan: -- I guess it seems really counterintuitive to me that Congress could have -- could have sort of looked down the road and said some insane judge is going to pick up these exceptions and transform them into actual grounds for disqualifying somebody from removal.

So the exceptions would remain the exceptions.

You don't need --

Frederick Liu: No --

Elena Kagan: -- all this statutory language to do that.

Frederick Liu: No, that -- that -- that's my point, Justice Kagan, is that because of those exceptions, that's why you need the renders --

Elena Kagan: Yes, that's your --

Stephen G. Breyer: If you --

Elena Kagan: -- point --

Stephen G. Breyer: Look, if --

Samuel A. Alito, Jr.: Can -- could -- could I take you back to Justice Breyer's intriguing question about the meaning of inadmissibility? The -- the Eleventh Circuit had some very colorful examples about status and words that end in a-b-l-e or i-b-l-e, and one of them had to do with rotten fish.

So, if a fish rots and it is inedible, they say, well, it was inedible before the person ate it. But, under Justice Breyer's interpretation of admissibility, suppose this person eats the fish and then goes to the emergency room to have his stomach pumped, would the doctor say, well, the fish wasn't actually inedible because he ate it? (Laughter.)

Frederick Liu: No, no, you wouldn't, because the fish has the status of being inedible, whether someone has --

Elena Kagan: No --

Frederick Liu: -- eaten it --

Elena Kagan: -- but, Mr. Liu --

Frederick Liu: -- or is trying to eat it or not.

Elena Kagan: -- this -- this really is dependent on context because you wouldn't say is car is immovable if the car has just been moved.

And so too here, it's not clear that you would say an alien is inadmissible if the alien has just been admitted. So, you know, it could; it couldn't. The -- the -- the real question is not what "inadmissible" means in the abstract.

The real question is look at this 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 proceedings?

Frederick Liu: And I -- and I don't think it's an embarrassment for our position that, under our view, the "renders removable" clause has only a modest role to play.

Again, if you read the -- the text of the stop-time rule, you begin only with offenses referred to in Section 1182(a)(2). If Congress had wanted Section 1227 to play a sort of major role in the stop-time rule, it could have said offenses referred to in Section 1182(a)(2) or referred to in Section 1227. But already Congress is cutting off the application of 1227.

This is an inadmissibility-focused provision.

Two of the three provisions are about Section 1182(a)(2). I think it's only logical to read the third provision, which doesn't mention Section 1182(a)(2), as doing the relatively modest role, admittedly, of just picking up the things that aren't referred to or render an alien inadmissible.

Stephen G. Breyer: I -- I -- before you leave this -- I -- I'll think about the fish. I'm not sure I got the fish, but I'll -- I'll think about the fish. (Laughter.)

Stephen G. Breyer: But -- but I'm back in what in heaven's name is that clause doing there? You know, the second clause.

Frederick Liu: Right.

Stephen G. Breyer: If you're right, okay.

So you've had very brilliant people going over this, and the best they've come up with, it seems to me -- tell me -- is, well, you see, there are exceptions in 1182, and there are -- those exceptions are not in 1227.

And they put 1227 in to be sure those exceptions didn't stop the person from being deported. Okay.

So I look at the exceptions. The only exceptions I can find that are relevant are those contained in (a)(1), (a)(2), (a)(ii)(I)(2).

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 put in that number.

You see? That would have done it. 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. Now I've never seen a statute drafted, so many words, to cover removing so small an exception.

Frederick Liu: But we know Congress wasn't working at that level of granularity, because when it came to 1227(a)(4), there was nothing in 20 -- 1227(a)(4) that's referred to in Section 1182. I think the only way to understand what Congress was thinking is to think of what Congress was thinking at a more general level. And the more general level is we have these offenses referred to in 1182(a)(2).

These are bad offenses.

If they're serious enough to render you inadmissible, that is, confer that status, then they stop the time.

But, if they are also happen to be serious enough to render you removable, those will stop the time too. That doesn't mean that you -- you don't apply the Section 1182 "renders inadmissible" language even in cases when aliens are admitted because Congress had written provisions in many other places of the INA where inadmissibility is indeed relevant, even when the alien is admitted. So Congress did not think there was some sort of disjunct between saying an alien was already admitted and yet he's inadmissible. It wrote the statute in exactly that way. That's confirmed by the language of 1182, which says any alien convicted of "a crime involving moral turpitude" is inadmissible.

It doesn't say any alien who is convicted and then seeks admission. It's clear from the other provisions, adjustment of status, temporary protected status, the two major parts of the Immigration Reform Act of 1986 that I mentioned at the outset.

It's even clear if you look at a provision of 1227.

1227(2)(a) -- (2)(a) -- 1227(a)(1)(A), deportable aliens, this is at 20a of our petition appendix, talks about aliens who at the time of entry or adjustment of status were within one of the classes of aliens inadmissible. There's no adjudication of admissibility at that point.

The whole point of this deportability 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, deportability. We think the stop-time rule works in the same way.

Sonia Sotomayor: I know that everybody -- I think Justice Kavanaugh and 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 deportable because there's an exception under deportability.

If it's a 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 the LP -- that the INA throughout gives more solicitude to long-time -- to permanent residents. I mean, I -- I just don't see how we can turn the presumption on its head and say that they weren't intending to limit the stop-time rule to those who were in an admissibility status; covers small numbers of LPRs, the ones that have left the country and are seeking re-admission, and others, but I -- I'm -- I'm just not quite sure I understand why your reading is consistent with the solicitude that Congress has showed LPRs throughout the INA.

Frederick Liu: I think it has to do with the very narrow issue in front of this Court. No one -- no one thinks that a marijuana possession conviction alone can render an LPR removable.

No one thinks a mere marijuana conviction alone can even render an LPR 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 --

Sonia Sotomayor: But --

Frederick Liu: -- and our answer is simply --

Sonia Sotomayor: -- the -- the problem really is, no, 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?

Frederick Liu: Well, there --

Sonia Sotomayor: Other than your strange reading of -- of this provision.

Frederick Liu: Well, I think the text does favor us.

But if you look at the cancellation of removal --

Sonia Sotomayor: If it doesn't, where do we end up? If it's ambiguous --

Frederick Liu: If it --

Sonia Sotomayor: -- where do we end up?

Frederick Liu: If it's ambiguous, I think there would have to be some grievous ambiguity for the Court even -- to even care about that. I think the traditional tools of construction continue --

Sonia Sotomayor: How about --

Frederick Liu: -- continue to apply.

Sonia Sotomayor: -- if it's in equipoise?

Frederick Liu: If it's in equipoise, I still think the Court's duty should be to reach what it believes to be the best reading of the statute.

I don't think --

Sonia Sotomayor: And so by ignoring surplusage completely?

Frederick Liu: No.

I think surplusage is a problem for both of our interpretations.

I mean, even under --

Sonia Sotomayor: He is a lot less. He gives meaning to everything except the reference to 1227(a)(4).

But doesn't 1227 -- it wasn't -- it was an empty category back then?

Frederick Liu: Yes.

It's --

Sonia Sotomayor: All right, I forgot that.

It was an earlier version.

Frederick Liu: Well, since the stop-time rule was enacted in 1996, all the way until 2004, 1227(a)(4) was an empty category.

And even today, it's a largely redundant category because Congress has said in cases of certain permanent residents and non-LPRs under 1229(b)(A) and (b)(1), if you have a conviction under (a)(4), you're just categorically ineligible.

It's not -- it's not even a matter of stopping time.

If you have an (a)(4) conviction, you can't get cancellation right off the bat.

So, even today, that provision is not doing a ton of work.

Elena Kagan: Mr. Liu, could you make sense of the verb tenses for me? Because I would think that you would have an extremely good argument if the tenses were subjunctive, you know, if it said -- if it would render the alien inadmissible.

But it doesn't say that. It says renders the alien inadmissible, which seems not to refer to something that could happen in the future if the alien, again, tried to gain admission.

Frederick Liu: Right.

And I -- I -- I think the "renders inadmissible," the present tense, just reinforces our interpretation because, if you look at the text of 1182 itself, it says any alien convicted of "a crime involving moral turpitude" is inadmissible. So, for the tenses to match, the present tense in 1182 itself to match with the stop-time rule, I think the present tense makes a lot of sense.

And I think this -- this is in partial response to Justice Breyer's question. Our -- our position is not a hypothetical alien would be inadmissible and, therefore, time stops for this alien.

Our position very much is, for this particular alien, this offense renders him inadmissible. And that just follows --

Elena Kagan: I mean, it --

Frederick Liu: -- from the text --

Elena Kagan: -- just is a kind of odd thing to say when we know the alien has been admitted and could be -- you know, could live here indefinitely if he hadn't gotten into other trouble, right?

Frederick Liu: I don't --

Elena Kagan: Nobody walks around going, oh, you've been admitted, but, you know -- you know, let's -- let's -- let's -- let's try to figure out whether you're inadmissible if you try to -- if you try to gain admission the next time around?

Frederick Liu: I mean, I -- I don't think that's right.

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 use the present tense to be exceptionally clear about those consequences. I think there is a different verb tense change here between "alien has committed" and "renders inadmissible," but that -- that just, I think, dovetails with our understanding as well, because the "rendering inadmissible" always has to occur after the alien has committed the offense.

Brett M. Kavanaugh: Is your point about (a)(4) because it's an aggravated felony?

Frederick Liu: No, no.

Brett M. Kavanaugh: What was your (a)(4) point?

Frederick Liu: 1227(a)(4) covers security-related grounds --

Brett M. Kavanaugh: Yeah.

Frederick Liu: -- for deportability.

So, if someone has engaged in terrorist activity, for example, he would come within the scope of (a)(4).

If you look at 1229b(c)(4), this is on page 37 of our petition appendix, it says an alien who is ... deportable under Section 1227(a)(4) is simply categorically ineligible for cancellation of removal.

And that applies to two types of cancellation, not all the types, but the two types that we have been discussing here today. Thank you.

John G. Roberts, Jr.: Thank you, counsel. Five minutes, Mr. Unikowsky.

Adam G. Unikowsky: 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 the 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 an offense under 1182 is subject to mandatory detention. Giving that meaning -- word the same consistent meaning, it would apply to any alien who merely has the status of inadmissible even if you've already been admitted.

That's what they say "inadmissible" means in the stop-time rule. They conceded that can't be right.

An 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 if it is a wash, that it's very good for us because there's all the other stuff.

There's the surplusage, there's the comparison to good moral character, and there's the structure of the INA and everything else. But I'd 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 they are. So like this mandatory detention statute, it's covering removal procedures.

It was enacted in IRRARA 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 LPRs at all, which is what the government is -- is relying upon. So I actually think that the consistent usage canon favors us, especially when you look at just the intro to the cancellation of removal statute that says the attorney general may cancel removal for an alien who is inadmissible or removable.

Like, that's using "inadmissible" in the way we say and it's the same statute.

In fact, like the stop-time rule is just a definitional provision under that umbrella. So the second thing I'd like to turn to is this question about the fish, which was a colorful question by -- by Justice Alito that the Eleventh Circuit relied on similar arguments. Look, we're not denying that it's -- that you can -- b-l-e words sometimes sound like a status.

Clearly, that's true, but it's just as clear that sometimes it's obvious that when you're talking about the removal proceeding itself, the word "inadmissible" refers to what happened at the removal proceeding. So I just think it's -- it's just inescapable that you have to look at the context in which the word appears.

I don't think that the Eleventh Circuit's comparison to undrinkable really can answer the question presented.

And in the context of the statute, which applies only during removal proceedings in which all the surrounding provisions seem to conceptualize this dichotomy between inadmissible and deportable, I think the context which you -- you just kind of have to look at ultimately favors our position. I'd also like just to say a word about surplusage, which I understand occupied a portion of the -- of the -- of my colleague's argument.

So, first, on this narrow issue of 1227(a)(4), just to be clear, it's not as though the government's interpretation gives that meaning that ours doesn't, right? So 1227(a)(4) was really an empty category at the time because it didn't have any cross-references to 1182. That's true on both sides.

So it's not -- it's not one of those 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 surplusage on the government side is a -- is a lot more significant in the hope that the removal clause isn't there. It's not just a matter that there's surplusage.

I mean, surplusage is generally bad.

But I think here it's more than that.

You see the words "inadmissible" and "removable" paired with each other.

And I think that just implies that Congress is thinking that those are the two things that can happen to you.

And if you're inadmissible, you fall in one bucket, and if you're removable, you're in another bucket. And we see all over the adjacent statutes this concept of inadmissibility and deportability together with an "or" in between.

And it's -- it's clear in all those contexts that that's why that's -- that's why they're there, because those are the -- the two true outcomes. So just in -- in the intro of the cancellation of removal statute, where it says the attorney general may cancel removal of an alien who is inadmissible or deportable. Clearly, the reason those two things are paired together is that those are the two things that can happen to you.

And so that's why they're both there. And the same in just the general statute governing removal procedures, 1229a, that says that the immigration judge shall decide the inadmissibility or deportability of an alien, it's clear why those two words are there with the "or" in between, because those are the two things that can happen. So you go to the stop-time rule, which, after all, is -- is just like a buried definitional provision in the cancellation of removal statute itself, and you have "inadmissible" or "removable." And the natural inference is that the reason those are there is that those are the two things that can happen. That fits our interpretation perfectly because, if you're found inadmissible, then you're in the admissible category.

And if you're found deportable, then you're in the deportable 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 -- did not make this argument in an en banc petition filed less than a year ago. Thank you.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.