Khan v. Attorney Gen. of the U.S.

979 F.3d 193

Waseem Ahsan KHAN, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES of America, Respondent

No. 19-1427

United States Court of Appeals, Third Circuit.

Argued July 8, 2020

Opinion Filed: November 3, 2020

Eric M. Mark [ARGUED], 201 Washington Street, Newark, NJ 07102, Attorney for Petitioner

Surell Brady, United States Department of Justice, Office of Immigration Litigation, Room 5044, P.O. Box 878, Washington, DC 20044, Sunah Lee [ARGUED], Andrew N. O'Malley, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878 Washington, DC 20044, Attorneys for Respondent

David A. Isaacson, Cyrus D. Mehta & Partners, One Battery Park Plaza, 9th Floor, New York, NY 10004, Attorney for Amici Curiae American Immigration Lawyers Association, National Immigration Project of the National Lawyers Guild, and Immigrant Defense Project

Before: KRAUSE, MATEY, and RENDELL Circuit Judges

OPINION OF THE COURT

KRAUSE, Circuit Judge.

The decision of some states to decriminalize the possession of personal-use quantities of marijuana has had collateral consequences well beyond the vacatur of thousands of convictions. We deal today with a consequence for noncitizens whose commission of this type of offense, under applicable immigration laws, would normally "stop time" on the accrual of the years of continuous residence required to be eligible for cancellation of removal. See 8 U.S.C. §§ 1229b(a)(2), 1229b(d)(1). The question is whether that "stop-time rule" still applies if, post-conviction, the offense has been decriminalized and the conviction vacated as a result. Because we hold that a vacatur in this context does not affect the operation of the stop-time rule, we agree with the Board of Immigration Appeals that Petitioner in this case did not satisfy the continuous-residence requirement for eligibility for cancellation of removal, and we will deny his petition for review.

I. Background

Petitioner Waseem Ahsan Khan was admitted to the United States as a legal permanent resident (LPR) in 2000 and pleaded guilty to possession of less than one-half ounce of marijuana, in violation of Conn. Gen. Stat. § 21a-279(c), in 2006. He was not subject to removal for that conviction because it was "a single offense involving possession for one's own use of 30 grams or less of marijuana," 8 U.S.C. § 1227(a)(2)(B)(i), but that was not his only tangle with the Connecticut criminal code.

In 2010, Khan was convicted for two counts of larceny in the third degree under Conn. Gen. Stat. § 53a-124, and those offenses did subject him to removal as "convict[ions] of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct." 8 U.S.C. § 1227(a)(2)(A)(ii). He was eventually served with a Notice to Appear in 2017, leading to the order of removal that is the subject of this petition.

At each step along the way, Khan sought cancellation of removal, a discretionary form of relief that permits an otherwise removable noncitizen to remain in the country.¹ See Torres v. Lynch , ––– U.S. ––––, 136 S. Ct. 1619, 1623, 194 L.Ed.2d 737 (2016). As relevant to this appeal, he acknowledged that to be eligible for this relief, he must "ha[ve] resided in the United States continuously for 7 years after having been admitted" as a LPR. 8 U.S.C. § 1229b(a)(2). He also did not dispute that he could not meet that criterion if the "stop-time rule"—which stops the accrual of continuous residence when the noncitizen "has committed an offense referred to in section 1182(a)(2) ... that renders the alien inadmissible to the United States under section 1182(a)(2)," id. at § 1229b(d)(1) —applies to the marijuana offense he committed six years after being admitted. But, he argued, the rule did not apply to him because Connecticut later decriminalized the underlying offense, see 2011 Conn. Acts No. 11-71 (Reg. Sess.), and he had applied for and been granted a vacatur of that conviction,² see Conn. Gen. Stat. § 54-142d.

The Immigration Judge (IJ) disagreed on the ground that the vacatur was due to a "post-conviction event[ ]," rather than "on the basis of a procedural or substantive defect in the underlying proceeding[ ]," and therefore, pursuant to In re Pickering , 23 I. & N. Dec. 621 (BIA 2003), the conviction continued to carry immigration consequences. A.R. 261. The Board of Immigration Appeals (BIA) adopted the IJ's reasoning and affirmed, reiterating that because "[t]he destruction of [Khan's] conviction record was not based on any procedural or substantive defect in the conviction itself, but rather on subsequent events," his continuous-residence period terminated when he "committed his drug possession offense." App. 7.

Khan timely petitioned for review of the BIA's conclusion that his since-vacated conviction triggered the stop-time rule.³

II. Jurisdiction and Standard of Review

The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15, and we have jurisdiction under 8 U.S.C. § 1252(a). Although we lack jurisdiction over the "discretionary aspects of the denial of cancellation of removal," Singh v. Att'y Gen. , 807 F.3d 547, 549 n.3 (3d Cir. 2015) (citing 8 U.S.C. § 1252(a)(2)(B)(i) ), we retain jurisdiction over determinations regarding statutory eligibility, see 8 U.S.C. § 1252(a)(2)(D), including "[s]atisfaction of the continuous residency requirement," Singh , 807 F.3d at 549 n.3. We review the BIA's legal determination of ineligibility de novo and any factual findings for substantial evidence, Huang v. Att'y Gen. , 620 F.3d 372, 379 (3d Cir. 2010), and it is the noncitizen's burden to demonstrate eligibility for cancellation of removal, see Singh , 807 F.3d at 550.

III. Discussion

On appeal, Khan again contends that he "has resided in the United States continuously for 7 years after having been admitted in any status," 8 U.S.C. § 1229b(a)(2), because his 2006 marijuana offense—the inadmissibility offense that would otherwise trigger the stop-time rule—was decriminalized and his conviction vacated. We first discuss the normal operation of the stop-time rule and then turn to the effect of a vacatur resulting from the offense's decriminalization.

A. The Normal Operation of the Stop-Time Rule

As with any question of statutory interpretation, "we must begin with the statutory text," A.A. v. Att'y Gen. , 973 F.3d 171, 180 (3d Cir. 2020) (citation omitted), and because we "presume[ ] that Congress expresse[d] its intent through the ordinary meaning of its language," we start with "an examination of the plain language of the statute," id. (first and second alterations in original) (internal quotation marks and citation omitted). In particular, courts "normally interpret[ ] a statute in accord with the ordinary public meaning of its terms at the time of its enactment." Bostock v. Clayton Cty., Ga. , ––– U.S. ––––, 140 S. Ct. 1731, 1738, 207 L.Ed.2d 218 (2020).

In relevant part, the provision embodying the stop-time rule provides that a LPR's continuous residence stops accruing if and when the LPR "has committed an offense referred to in section 1182(a)(2) ... that renders the alien inadmissible to the United States under section 1182(a)(2)."⁴ 8 U.S.C. § 1229b(d)(1). Section 1182(a)(2), in turn, "renders inadmissible" any noncitizen who is "convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of (I) a crime involving moral turpitude ..., or (II) a violation of ... any law or regulation ... relating to a controlled substance (as defined in section 802 of Title 21)." 8 U.S.C. § 1182(a)(2)(A)(i). It is undisputed that the marijuana offense to which Khan pleaded guilty met these criteria at the time and would have prevented Khan from having accrued the requisite seven years’ continuous residence in the normal course. But in Khan's case, the law later changed: His offense of conviction is no longer a crime, so his conviction has been vacated. The question for us is whether, under these changed circumstances, he should still be considered to "ha[ve] committed an offense referred to in section 1182(a)(2) ... that renders the alien inadmissible ... under section 1182(a)(2)." 8 U.S.C. § 1229b(d)(1). And the answer depends on what is required by this statutory text.

By its terms, the stop-time rule is susceptible to two readings. One is that the LPR previously committed one of the offenses specified in § 1182(a)(2), with the clause "that renders the alien inadmissible ... under section 1182(a)(2)" serving merely to describe the significance of "an offense [being] referred to in section 1182(a)(2)." The other is that the rule incorporates two distinct requirements: (1) the LPR must have previously committed one of the offenses specified in § 1182(a)(2), and (2) the LPR's conviction of or admission to the offense "renders [him] inadmissible." But of the two possible readings, only the latter comports with the statutory text and finds support in precedent.

As a textual matter, this second reading is proper for three reasons. First, Congress's use of different verb tenses in each of the clauses—present-perfect in "has committed" and present in "renders"—reflects its intent for the two clauses to define separate requirements. See United States v. Wilson , 503 U.S. 329, 333, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) ; Santos-Reyes v. Att'y Gen. , 660 F.3d 196, 199 (3d Cir. 2011). Second, "[w]ords are to be given the meaning that proper grammar and usage would assign them," United States v. Johnman , 948 F.3d 612, 618 (3d Cir. 2020) (alteration in original) (quoting Nielsen v. Preap , ––– U.S. ––––, 139 S. Ct. 954, 965, 203 L.Ed.2d 333 (2019) ), and though not so well-recognized as to rise to the level of a grammatical canon, the word "that" prefacing the second clause generally serves as a restrictive pronoun introducing necessary, additional information—in contrast to "which," a non-restrictive pronoun generally prefacing only clarifying information, see...