Singh v. Attorney Gen. of the U.S

Decision Date31 August 2021
Docket NumberNo. 20-1778,20-1778
Citation12 F.4th 262
Parties Baljinder SINGH, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES of America, Respondent
CourtU.S. Court of Appeals — Third Circuit

Gintare Grigaite, 363 Broadway, Bayonne, NJ 07002, John P. Leschak [ARGUED], Leschak & Associates, 180 South Street, Freehold, NJ 07728, Counsel for Petitioner

Virginia L. Gordon [ARGUED], Aaron D. Nelson, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent

Before: JORDAN, MATEY, Circuit Judges and HORAN,* District Judge.

OPINION OF THE COURT

JORDAN, Circuit Judge.

Baljinder Singh achieved what many immigrants to our country seek: he became a naturalized citizen. Unfortunately, he did so through willful misrepresentation, and, as a consequence, his citizenship was revoked. Before that revocation and while he was still a citizen, he was convicted of conspiracy to distribute and possess with intent to distribute illegal drugs. That led the government to initiate removal proceedings against him, and he was in fact ordered to be removed. Singh now petitions for review of that final order of removal, arguing that the pertinent statutory provisions, by their terms, permit removal only of individuals who were "aliens" at the time of their criminal convictions, whereas he was a naturalized citizen when convicted. The government responds that we must defer to the interpretation given by the Board of Immigration Appeals ("BIA") to those statutes and therefore must deny the petition for review. In the alternative, the government contends that Singh should be treated as if he had never been naturalized and was actually an "alien" at the time he was convicted. We disagree with both of the government's arguments and will grant Singh's petition for review.

I. BACKGROUND

Singh is a native of India who arrived in the United States in 1991. Upon arriving without travel documents or proof of identity, he falsely claimed that his name was Davinder Singh. The agency then responsible for administering our nation's immigration laws, the Immigration and Naturalization Service ("INS"), initiated exclusion proceedings against him. Singh failed to appear at his scheduled immigration hearing in January 1992, and an Immigration Judge ("IJ") ordered him deported in absentia .

Despite that deportation order, in February 1992, Singh filed an asylum application under the name Baljinder Singh. While the application was pending, he married a U.S. citizen. Singh also petitioned to adjust his status from alien to lawful permanent resident but did not disclose his prior immigration history and deportation order in his application. In 1998, the INS approved his petition, and he received lawful permanent resident status.

When Singh later sought naturalization, he again failed to disclose his prior immigration history, despite being directly asked whether he had ever used other names or lied to gain entry to the United States. He falsely answered those questions in the negative, and did so under penalty of perjury. Singh's citizenship application was approved, and on July 28, 2006, he became a citizen of the United States.

Soon, however, he was in serious trouble with the law. In 2011, he pled guilty to conspiracy to distribute and possess with intent to distribute heroin, MDMA,1 and marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(l), 841(b)(l)(A)(I), and 841(b)(l)(C). His drug dealing lasted from at least September 2007 to November 2008.

Several years later, the government filed a complaint to revoke Singh's citizenship in the United States District Court for the District of New Jersey, invoking 8 U.S.C. § 1451(a) and stating two independent reasons why his citizenship should be revoked: first, he illegally procured naturalization because he was never lawfully admitted for permanent residence, and second, he procured naturalization by concealment of a material fact or willful misrepresentation. The government subsequently filed a motion for summary judgment. The court granted that motion on January 5, 2018, and revoked Singh's citizenship, "order[ing] that the Certificate of Naturalization ... issued to Defendant on July 28, 2006 is hereby cancelled." (A.R. at 276.)

The Department of Homeland Security ("DHS") served Singh with a notice to appear in immigration court, charging him with removability under 8 U.S.C § 1227(a)(2)(A)(iii) (the "aggravated felony provision" of the Immigration and Nationality Act ("INA")) for having been convicted of an offense relating to illicit trafficking in controlled substances, and under 8 U.S.C § 1227(a)(2)(B)(i) (the "controlled substances provision" of the INA) for having been convicted of a controlled substances crime. DHS later filed an additional charge of removability, saying Singh was removable under the aggravated felony provision for having been convicted of a felony relating to conspiracy to illicitly traffic controlled substances.

Singh responded with a motion to terminate the removal proceedings. He argued that he could not be removed under the aggravated felony provision because he was a naturalized citizen at the time of his conviction, and he said his subsequent loss of citizenship could not retroactively make him an "alien." DHS successfully opposed the motion before the IJ, and Singh filed a motion to reconsider, which the IJ denied.

The IJ held Singh removable both for having been convicted of an aggravated felony as described in 8 U.S.C. § 1101(a)(43)(U), namely conspiracy to commit a controlled substances offense, and for having been convicted of a controlled substances offense. Singh was therefore ordered to be removed to India.

He appealed, but the BIA accepted the IJ's conclusions and dismissed the appeal. This petition followed.

II. DISCUSSION2

Singh argues that he cannot be removable under the aggravated felony or controlled substances provisions of the INA because he was a naturalized citizen at the time he was convicted.3 He contends that the only relevant time is the time of conviction, and because he was not an "alien" at that time, he is not removable under either provision. See 8 U.S.C. § 1101(a)(3) ("The term ‘alien’ means any person not a citizen or national of the United States."). Central to Singh's argument is the Supreme Court decision in Costello v. INS , 376 U.S. 120, 84 S.Ct. 580, 11 L.Ed.2d 559 (1964), which held that a similarly-phrased deportation provision did not apply to a person who was a naturalized citizen at the time he was convicted but who was later denaturalized for fraud, like Singh. Costello , 376 U.S. at 121-22, 84 S.Ct. 580.

Singh argues that the BIA erred by declining to follow Costello and by instead relying on Matter of Rossi , 11 I. & N. Dec. 514 (BIA 1966), and Matter of Gonzalez-Muro , 24 I. & N. Dec. 472 (BIA 2008), two decisions in which the BIA distinguished Costello even though the respondents were naturalized citizens at the time they were convicted of deportable offenses, just as Costello was. In addition, Singh argues that the BIA erred by saying his circumstances were indistinguishable from those of the respondent in Gonzalez-Muro , who was a lawful permanent resident during the commission of the crimes but a naturalized citizen at the time of conviction. Finally, Singh contends that Rossi and Gonzalez-Muro conflict with Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which held that failure to advise a non-citizen criminal defendant that pleading guilty may result in deportation constitutes ineffective assistance of counsel and violates the Sixth Amendment right to counsel.

The government responds that we must defer to the BIA's ruling in this case because it was directly controlled by precedential BIA decisions. Waiving any argument based on the controlled substances provision of the INA,4 the government focuses on the aggravated felony provision and says the familiar Chevron rule of deference applies.5 The government reasons that the aggravated felony provision is ambiguous and the BIA's interpretation of the provision is reasonable, and hence that interpretation is controlling. The government also points to the Rossi decision's reliance on United States ex rel. Eichenlaub v. Shaughnessy , 338 U.S. 521, 70 S.Ct. 329, 64 L.Ed. 307, 94 L.Ed. 307 (1950), which it argues is more analogous to Singh's circumstances than is Costello .

Our analysis of the parties’ conflicting positions proceeds in three steps. We first review Costello and Eichenlaub , the two Supreme Court decisions interpreting whether deportation statutes cover individuals who were citizens at the time of conviction but were subsequently denaturalized. Next, we discuss whether Chevron deference applies. Then, having determined that it does not, we consider whether the text of the aggravated felony provision, as understood in light of Supreme Court precedent, provides for the removal of individuals who were citizens at the time of conviction.

A. Applicable Supreme Court precedent.

The Supreme Court has twice considered whether deportation provisions using the term "aliens" apply to individuals who were naturalized citizens at the time they were convicted of crimes but subsequently were denaturalized for having acquired their citizenship through fraud or willful misrepresentation. See Costello , 376 U.S. at 128, 84 S.Ct. 580 ; Eichenlaub , 338 U.S. at 532, 70 S.Ct. 329. Singh argues that the petitioner in Costello was held to be not deportable because he was a citizen when convicted, which is precisely his own circumstance. The government contends that Costello does not apply because it was predicated on a specific legal remedy – a judicial recommendation against deportation – that has since been abrogated and was never available to Singh. Instead, says the government, Singh's case is akin to Eichenlaub , a case in which one-time citizens were deemed deportable.

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