Castillo v. U.S. Attorney Gen.

• Decision Date: 27 June 2014
• Docket Number: No. 13–13445.,13–13445.
• Citation: 756 F.3d 1268
• Parties: Jose Fernando CASTILLO, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

756 F.3d 1268

Jose Fernando CASTILLO, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 13–13445.

United States Court of Appeals,

Eleventh Circuit.

June 27, 2014.

Jesus A. Nerio, Richard C. Wayne & Associates, PC, Atlanta, GA, for Petitioner.

Alfie Owens, DHS/ICE Office of Chief Counsel, Atlanta, GA, Jesse Matthew Bless, David V. Bernal, Krystal Samuels, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before MARCUS and EDMONDSON, Circuit Judges, and TREADWELL,^* District Judge.

MARCUS, Circuit Judge:

This case of first impression concerns whether the Board of Immigration Appeals (“BIA”) correctly found petitioner Jose Fernando Castillo removable as an aggravated felon, even though the Georgia State Board of Pardons and Paroles had earlier pardoned Castillo for the conviction that rendered him removable. On appeal, Castillo claims the BIA should have applied 8 U.S.C. § 1227(a)(2)(A)(vi), which waives the removability of a criminal alien who receives a “full and unconditional pardon.” We disagree. Under the plain meaning of § 1227(a)(2)(A)(vi), a pardon is only “full” when it restores the totality of rights abrogated by the underlying conviction. Here, Castillo's pardon did not reinstate his Second Amendment right to keep and bear arms, a privilege he lost under Georgia law as a result of his conviction. Thus, Castillo did not receive a “full” pardon, and § 1227(a)(2)(A)(vi) does not apply. After thorough review, we deny Castillo's petition.

I.

The undisputed facts and procedural history are straightforward. Castillo, a native and citizen of the Dominican Republic, became a lawful permanent resident of the United States in 1990. On April 7, 1993, Castillo, then 27 years old, pled guilty to statutory rape, a felony violation of Ga.Code § 16–6–3(a). At the time of his guilty plea, the Georgia criminal statute provided:

A person commits the offense of statutory rape when he engages in sexual intercourse with any female under the age of 14 years and not his spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the female.

Ga.Code § 16–6–3(a) (1993).¹ The trial judge imposed a five-year prison sentence but allowed Castillo to serve it on probation.

In April 2012, after determining that Castillo was a “law-abiding citizen and ... fully rehabilitated,” the Georgia State Board of Pardons and Paroles—the state's highest pardoning authority—granted Castillo's application for a pardon. In relevant part, the pardon established:

[P]ursuant to Article IV, Section II, Paragraph II(a) of the Constitution of the State of Georgia, the Board, without implying innocence, hereby unconditionally fully pardons said individual, and it is hereby

ORDERED that all disabilities under Georgia law resulting from the above stated conviction(s) and sentence(s), as well as, any other Georgia conviction(s) and sentence(s) imposed prior thereto, be and each and all are hereby removed; and

ORDERED FURTHER that all civil and political rights, except the right to receive, possess, or transport in commerce a firearm, lost under Georgia law as a result of the above stated conviction(s) and sentence(s), as well as, any other Georgia conviction(s) and sentence(s) imposed prior thereto, be and each and all are hereby restored.

On October 23, 2012, the Department of Homeland Security (“DHS”) served Castillo with a notice to appear before an immigration judge (“IJ”) in removal proceedings. In relevant part, the government charged Castillo with being subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony after admission into the country.² Castillo was detained and held in an Immigration and Customs Enforcement facility pending the determination of his case.

Soon after his detention, Castillo moved to terminate removal proceedings. Before the IJ, Castillo principally claimed he was entitled to a waiver of removability under § 1227(a)(2)(A)(vi).³ In full, § 1227(a)(2)(A)(vi) provides:

Clauses (i), (ii), (iii), and (iv) [of 8 U.S.C. § 1227(a)(2)(A)] shall not apply in the case of an alien with respect to a criminal conviction if the alien subsequent to the criminal conviction has been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States.

8 U.S.C. § 1227(a)(2)(A)(vi). Castillo asserted that his pardon was “full and unconditional,” since it was subject to no condition that could nullify its effect. Moreover, though the pardon did not restore his firearm privileges, Castillo argued that § 1227(a)(2)(A)(vi) requires only a pardon that clears a criminal conviction, not one that reinstates rights.

On February 14, 2013, the IJ denied Castillo's motion to terminate removal proceedings. The IJ reasoned that Castillo's pardon was not “full and unconditional,” as required under § 1227(a)(2)(A)(vi), because it did not restore Castillo's Second Amendment rights. The IJ therefore found Castillo removable under § 1227(a)(2)(A)(iii) and ordered him deported to the Dominican Republic.

Castillo appealed to the BIA, arguing that the IJ had erred as a matter of law in failing to apply the waiver-of-removability provision contained in § 1227(a)(2)(A)(vi). On July 9, 2013, in a non-precedential decision dismissing Castillo's appeal, a three-member panel of the BIA upheld the IJ's determination that Castillo's pardon was not “full and unconditional.” Jose Fernando Castillo, A093–022–401, at 2 (BIA July 9, 2013). The Board explained that, “[d]espite the language of the pardon, i.e. ‘unconditionally fully pardons,’ we find that any pardon that deprives an individual of rights under the Second Amendment to the Constitution cannot reasonably be considered ‘full and unconditional’ for purposes of the [Immigration and Nationality] Act.” Id. Further, the panel reasoned that a pardon would be “ ‘full and unconditional’ only if it erased all legal disabilities flowing from a conviction, regardless of whether the legal disability is referred to as a ‘condition’ or an ‘exception.’ ” Id. Finally, the BIA noted in passing that “the restoration of one's firearms rights is available from the Georgia State Board of Pardons and Paroles upon meeting additional conditions.” Id. Castillo timely petitioned for review of the BIA's decision dismissing his appeal.

II.

Castillo raises just one issue on appeal. The success or failure of his petition depends entirely on the meaning of “full and unconditional pardon,” as Congress intended that term in § 1227(a)(2)(A)(vi). Generally, we lack the power to review a final order of removal entered against an alien found removable as an aggravated felon. See8 U.S.C. § 1252(a)(2)(C). However, we retain jurisdiction to evaluate “questions of law raised upon a petition for review,” see id. § 1252(a)(2)(D), and to examine “the application of an undisputed fact pattern to a legal standard,” see Jean–Pierre v. U.S. Att'y Gen., 500 F.3d 1315, 1322 (11th Cir.2007). When we interpret § 1227(a)(2)(A)(vi), we answer a purely legal question. Moreover, to determine whether § 1227(a)(2)(A)(vi) controls this case, we must apply undisputed facts to a legal standard. Thus, contrary to the government's suggestion, we have jurisdiction over Castillo's appeal.

A.

We review de novo the BIA's interpretation of the Immigration and Nationality Act (“INA”), deferring to the Board's permissible construction only where the statute is ambiguous. See Cole v. U.S. Att'y Gen., 712 F.3d 517, 523 (11th Cir.2013) (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Where, as here, the BIA has issued its own opinion, we exclusively review that decision, except to the extent that it expressly adopts the IJ's opinion. See Imelda v. U.S. Att'y Gen., 611 F.3d 724, 727 (11th Cir.2010). Like the BIA, we hold that Congress clearly and unambiguously intended § 1227(a)(2)(A)(vi) to apply only when an alien secures a pardon restoring all rights vitiated by the underlying adjudication of guilt. Since the statute is clear, we have no occasion to examine its terms against the template of Chevron or Skidmore deference.

We decipher congressional intent from “the plain language of the statute.” Wilderness Watch & Pub. Emps. for Envtl. Responsibility v. Mainella, 375 F.3d 1085, 1091 (11th Cir.2004). The INA does not define “full and unconditional pardon,” so we must look instead to the “ordinary meaning” of those terms. See United States v. Silvestri, 409 F.3d 1311, 1333 (11th Cir.2005) (“Courts must assume that Congress intended the ordinary meaning of the words it used.” (quoting Consol. Bank, N.A., Hialeah Fla. v. U.S. Dep't of Treasury, 118 F.3d 1461, 1463 (11th Cir.1997))); Wilderness Watch, 375 F.3d at 1092 (“When interpreting the language of a statute, ‘we generally give the words used their ordinary meaning.’ ” (quoting Griffith v. United States, 206 F.3d 1389, 1393 (11th Cir.2000) (en banc))).

“To determine the ordinary meaning of a term, ‘courts often turn to dictionary definitions for guidance.’ ” Reed v. Chase Home Finance, LLC, 723 F.3d 1301, 1303 (11th Cir.2013) (per curiam) (quoting Silvestri, 409 F.3d at 1333). While Castillo received an “unconditional” pardon, in the sense that its effect was not contingent on a condition precedent or a condition subsequent, relevant dictionaries overwhelmingly suggest that his pardon was not “full.” In 1952, when Congress first provided a waiver of deportability for a “full and unconditional pardon,” see Pub.L. No. 82–414, § 241(b), 66 Stat. 208 (1952), Black's Law Dictionary defined “full pardon” to mean “[o]ne freely and unconditionally absolving party from all legal consequences, direct and collateral, of crime and conviction.” ⁴Black's Law Dictionary 1269 (4th ed.1951) (emphasis added). Subsequent...