Okpala v. Whitaker, 111518 FED5, 17-60391

Docket Nº:17-60391
Opinion Judge:CARL E. STEWART, CHIEF JUDGE.
Party Name:OKEY GARRY OKPALA, also known as Okechukwu Oguejifor Okpala, Petitioner v. MATTHEW G. WHITAKER, ACTING U.S. ATTORNEY GENERAL, Respondent
Judge Panel:Before STEWART, Chief Judge, and JONES and ENGELHARDT, Circuit Judges. EDITH H. JONES, Circuit Judge, concurring:
Case Date:November 15, 2018
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

OKEY GARRY OKPALA, also known as Okechukwu Oguejifor Okpala, Petitioner

v.

MATTHEW G. WHITAKER, ACTING U.S. ATTORNEY GENERAL, Respondent

No. 17-60391

United States Court of Appeals, Fifth Circuit

November 15, 2018

Petition for Review of an Order of the Board of Immigration Appeals

Before STEWART, Chief Judge, and JONES and ENGELHARDT, Circuit Judges.

CARL E. STEWART, CHIEF JUDGE.

Petitioner Okey Garry Okpala requests review of the decision of the Board of Immigration Appeals ("BIA") affirming the immigration judge's ("IJ") deportation order. Because the BIA erred in construing 8 U.S.C. § 1227(a)(2)(A)(iii) to apply to an individual who was a naturalized citizen at the time of conviction, we grant the petition for review and vacate the BIA's deportation order.

I.

Okpala is a native of Nigeria who was admitted into the United States as a student in 1982.1 On December 8, 1986, Okpala became a permanent resident alien based on his marriage to a United States citizen. He was naturalized as a citizen on March 6, 1992. On October 25, 1993, Okpala was convicted of heroin conspiracy, distribution of heroin, importation of heroin, procuring citizenship unlawfully, and making false statements. His convictions were affirmed on direct appeal and the Supreme Court denied certiorari. United States v. Okpala, No. 93-9349, 1997 WL 154636, at *1 (11th Cir. 1997) (unpublished), cert. denied, 522 U.S. 1097 (1998). On December 1, 1993, the district court revoked Okpala's certificate of naturalization because of his conviction for procuring naturalization unlawfully. Okpala swore in his naturalization application that he had not knowingly committed any crime for which he had not been arrested. In light of the October convictions, this was false.

The Department of Homeland Security ("DHS") issued an Order to Show Cause in January 1994 and began deportation proceedings. The Government charged Okpala as being removable as an alien with controlled substance and aggravated felony convictions. Because Okpala was in the custody of the United States Bureau of Prisons serving his criminal sentence, an IJ administratively closed the immigration proceedings in May 1995. Twenty years later, in anticipation of Okpala's release, the DHS moved to recalendar Okpala's immigration proceedings and transfer the proceedings to the Immigration Court in Oakdale, Louisiana, where Okpala was detained. The motion was granted on January 21, 2016.

Okpala moved to terminate his deportation proceedings. He argued that the order revoking naturalization was invalid and that he was a United States citizen. He initially conceded both charges of deportability before later denying them. The DHS submitted an exhibit with records of his criminal convictions. Okpala objected, arguing that the Government did not timely file the exhibit and the documents were insufficient. Okpala also argued that his 1993 convictions did not qualify as criminal convictions for immigration purposes. On May 31, 2016, the IJ denied the motion to terminate proceedings, because the denaturalization order sufficiently established that Okpala was no longer a United States citizen and the record contained sufficient evidence to establish the criminal convictions. The IJ additionally concluded that the heroin-related convictions were aggravated felonies that constituted violations of a law relating to a controlled substance.

Okpala filed a motion to reconsider the May 31, 2016 order and a second motion to terminate proceedings. Okpala challenged the determination that he was not a United States citizen and the validity of his 1993 criminal convictions. The IJ denied the motion to reconsider and the second motion to terminate and ordered that Okpala be deported to Nigeria.

Okpala appealed the IJ's denial of his motions to reconsider and terminate. He argued that, under Costello v. INS, 376 U.S. 120 (1964), he was a United States citizen at the time of the 1993 convictions, so he was not an alien under the general deportation statutes. He also contended that the denaturalization order was void for failure to comply with procedural and substantive provisions; the record of the 1993 convictions was untimely and lacked foundation; the DHS did not submit a "nonpoisonous" jury verdict of the 1993 convictions; the 1993 convictions constituted in absentia convictions and did not attain a substantial degree of finality; the instant removal proceeding was barred by collateral estoppel and res judicata; and his due process rights were violated.

The BIA concluded that the IJ properly determined that Okpala was convicted of an aggravated felony. The BIA also concluded that, under the doctrine of collateral estoppel, a prior denaturalization judgment conclusively established the ultimate facts in a subsequent deportation hearing. The BIA did not have jurisdiction to look at these ultimate facts and was precluded from reconsideration of issues of law resolved by the prior court arising from identical facts. The BIA noted that Okpala's denaturalization order was affirmed on appeal.

The BIA also determined that Okpala, now an alien, was amenable to deportation proceedings. The BIA distinguished Costello from the instant case on grounds that a judicial recommendation against deportation was unavailable to Okpala but had been central to Costello's holding. As to the Due Process claim, the BIA determined that Okpala was afforded ample opportunity to present evidence on his behalf, had submitted substantial written and oral contentions to the IJ, and the IJ had considered those contentions. As Okpala failed to identify any specific action by the IJ resulting in actual prejudice, the BIA concluded that Okpala failed to show that the proceedings below were fundamentally unfair and dismissed the appeal. Okpala timely filed his petition for review.

II.

We review the BIA's findings of fact for substantial evidence; that review includes the IJ's judgment to the extent it influenced the BIA's decision. Sealed Petitioner v. Sealed Respondent, 829 F.3d 379, 383 (5th Cir. 2016). The BIA's conclusions of law are reviewed de novo. Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 785-86 (5th Cir. 2016). If "a conclusion embodies [the BIA's] interpretation of an ambiguous provision of a statute that it administers," we accord due deference as required by Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012) (quotation omitted). Nevertheless, we "may reverse a decision that was decided on the basis of an erroneous application of the law." Sealed Petitioner, 829 F.3d at 384 (quoting Mikhael v. INS, 115 F.3d 299, 305 (5th Cir. 1997)).

III.

Okpala contends that the BIA erred in construing 8 U.S.C. § 1227(a)(2)(A)(iii) to apply to him because he was a naturalized citizen at the time of his convictions. We agree.

"Any alien who is convicted of an aggravated felony at any time after entry is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). Section 1101(a)(3) of Title 8 of the United States Code defines an "alien" as "any person not a citizen or national of the United States." The parties concede that Okpala was a naturalized citizen when convicted of his crimes, but they disagree on the statute's application in this case. Okpala argues that 8 U.S.C. § 1227(a)(2)(A)(iii) does not apply to him because he was a naturalized citizen when convicted. The Government argues that Okpala's ab initio denaturalization makes him amenable to deportation under the statute.

Although this is a matter of first impression in this court, the Supreme Court addressed this issue in Costello v. INS, 376 U.S. 120 (1964). The Court in Costello considered the proposed deportation of Frank Costello, who was naturalized in 1925 and later denaturalized pursuant to 8 U.S.C. § 1451(a) for willful misrepresentations in his naturalization application. Costello, 376 U.S. at 121; see also Costello v. United States, 365 U.S. 265, 266 (1960). Costello claimed on his naturalization application that his occupation was "real estate" when in fact he was a "bootlegger." Costello, 365 U.S. at 270. In 1961, "the Immigration and Naturalization Service [("INS")] commenced...

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