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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-14825 ________________________
Agency No. A079-397-192
MATTHEW JOHN HYLTON,
Petitioner, versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals _______________________
(March 31, 2021)
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and ED CARNES, Circuit Judges.
WILLIAM PRYOR, Chief Judge:
This petition for review requires us to decide whether a denaturalized alien
is removable as an aggravated felon based on convictions entered while he was an
American citizen. The Board of Immigration Appeals ordered Matthew Hylton USCA11 Case: 19-14825 Date Filed: 03/31/2021 Page: 2 of 15
removed as an alien convicted of aggravated felonies after his admission to the
United States. But unlike most aggravated felons facing removal, Hylton was a
citizen when he was convicted. Federal law provides that “[a]ny alien who is
convicted of an aggravated felony at any time after admission is deportable.” 8
U.S.C. § 1227(a)(2)(A)(iii) (emphasis added). By its plain terms, this provision
does not apply to aliens who were citizens when convicted. So its plain meaning
forecloses the Board’s interpretation, and binding precedent, Costello v. Immigr. &
Naturalization Serv., 376 U.S. 120 (1964), forecloses treating Hylton’s
denaturalization as retroactive for removal purposes. We grant Hylton’s petition
for review, vacate the decision of the Board, and remand for further proceedings.
I. BACKGROUND
Matthew Hylton was admitted to the United States as a nonimmigrant visitor
from Jamaica in 1993. He became an American citizen on September 16, 2008.
The day of his naturalization ceremony, Hylton completed a form in which he
affirmed that, since his naturalization interview, he had not “knowingly committed
any crime or offense, for which he had not been arrested.” This affirmation was
false.
Six days before the ceremony, Hylton had robbed a bank. His transgression
did not stay undetected for long. The next year, he pleaded guilty to charges of
armed bank robbery and unlawful transfer of a firearm. 18 U.S.C. §§ 924(h),
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2113(a), (d). In 2011, a jury convicted him of obtaining citizenship by fraud. Id.
§ 1425(a). A district court then revoked his American citizenship.
In 2018, the Department of Homeland Security initiated removal
proceedings against Hylton. It charged him as removable because he had been
convicted of aggravated felonies. 8 U.S.C. § 1227(a)(2)(A)(iii). Under the
Immigration and Nationality Act, his convictions for armed bank robbery and for
unlawful transfer of a firearm both qualify as aggravated felonies. See id.
§ 1101(a)(43)(E)–(F); 18 U.S.C. § 16(a); In re Sams, 830 F.3d 1234, 1238 (11th
Cir. 2016).
Hylton moved to terminate the removal proceedings. He argued that he was
not removable in the light of the decision in Costello v. Immigration &
Naturalization Service. 376 U.S. 120. In Costello, the Supreme Court held that a
similarly worded ground of removal did not apply to an alien in Hylton’s
position—that is, a person who was a naturalized citizen at the time of his relevant
convictions but was later denaturalized. Id. at 121, 127–28.
The immigration judge concluded that Costello was inapposite. He based his
conclusion on a line of decisions from the Board of Immigration Appeals.
According to the Board, Costello grounded its holding on the right of an alien to
seek a judicial recommendation against deportation, so it is not binding in contexts
where such a recommendation is unavailable. The immigration judge also pointed
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to factual differences between Hylton’s case and Costello. He denied Hylton’s
motion to terminate the proceedings, sustained the charges of removability, and
ordered Hylton removed to Jamaica.
The Board dismissed Hylton’s appeal in a single-member decision. It
adopted the immigration judge’s reasoning. And it reiterated that its decisions in
Matter of Rossi, 11 I. & N. Dec. 514 (B.I.A. 1966), and Matter of Gonzalez-Muro,
24 I. & N. Dec. 472 (B.I.A. 2008), control in removal proceedings where there is
no possibility of a judicial recommendation against deportation: in those
proceedings, an alien may be removed for convictions he sustained while he was a
citizen. Hylton petitions for review of the Board’s decision.
II. STANDARDS OF REVIEW
We review only the decision of the Board of Immigration Appeals, except to
the extent that the Board adopts the opinion of the immigration judge. Kazemzadeh
v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). We review questions of
statutory interpretation de novo, but “[i]f the statute is . . . ambiguous with respect
to the specific issue, we afford some level of deference to the Board’s decision and
evaluate whether it permissibly construed the statute.” Hincapie-Zapata v. U.S.
Att’y Gen., 977 F.3d 1197, 1200 (11th Cir. 2020) (internal quotation marks
omitted). “We afford Chevron deference to the Board’s precedential decisions,”
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including single-judge decisions that “rest[] on precedential authority from the
Board.” Id.
III. DISCUSSION
“Any alien who is convicted of an aggravated felony at any time after
admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). If this provision applies to
aliens who were citizens at the time of their predicate convictions, that application
must follow from at least one of two possible bases. The first basis would be that
the text of the provision supports the Board’s reading, either unambiguously or
based on Chevron deference. The second would be that Hylton’s denaturalization
operated retroactively to negate his earlier citizenship. We consider and reject each
possibility in turn.
A. The Plain Meaning of Section 1227(a)(2)(A)(iii) Excludes Aliens Who Were Citizens at the Time of Their Convictions. “As a general rule, an agency’s interpretation of a statute which it
administers is entitled to [Chevron] deference if the statute is silent or ambiguous
and the interpretation is based on a reasonable construction of the statute.” Sanchez
Fajardo v. U.S. Att’y Gen., 659 F.3d 1303, 1307 (11th Cir. 2011). At the first step
of Chevron, we evaluate whether Congress has written clearly. Barton v. U.S. Att’y
Gen., 904 F.3d 1294, 1298 (11th Cir. 2018). If it has not, then we consider, at the
second step, the permissibility of the agency’s reading of the statute. See id. at
1297. But if Congress has written clearly, then our inquiry ends and “we must give
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effect to the unambiguously expressed intent of Congress.” Id. at 1298 (internal
quotation marks omitted).
To determine whether a statute has a plain meaning, we ask whether its
meaning may be settled by the “traditional tools of statutory construction.”
Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984).
These tools encompass our “regular interpretive method,” Gen. Dynamics Land
Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004), including the canons of construction.
We conclude that the canons make the meaning of section 1227(a)(2)(A)(iii)
unambiguous.
Begin with the prior-construction canon. That canon establishes that “[i]f a
statute uses words or phrases that have already received authoritative construction
by the jurisdiction’s court of last resort, . . . they are to be understood according to
that construction.” Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts § 54, at 322 (2012). “When Congress use[s] the
materially same language in [a more recent enactment], it presumptively [is] aware
of the longstanding judicial interpretation of the phrase and intend[s] for it to retain
its established meaning.” Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct.
1752, 1762 (2018).
Decades before Congress adopted what is now section 1227(a)(2)(A)(iii),
the Supreme Court evaluated whether a materially identical provision—authorizing
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the removal of an alien who was convicted of multiple crimes involving moral
turpitude—applied to an alien who was a citizen at the time of his convictions.
Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7344(a), 102 Stat. 4181,
4470–71; Costello, 376 U.S. at 121–28. The moral-turpitude provision read, “Any
alien in the United States . . . shall, upon the order of the Attorney General, be
deported who . . . at any time after entry is convicted of two crimes involving
moral turpitude[.]” Costello, 376 U.S. at 121 (internal quotation marks omitted).
Costello identified two features of this language as key to its meaning. These
features distinguished the provision from an earlier removal ground that targeted
violators of the Espionage Act of 1917, which the Court had construed to apply to
aliens regardless of their status when convicted. Id. at 122–23. Unlike the earlier
ground, the moral-turpitude provision “employ[ed] neither a past tense verb nor a
single specific time limitation.” Id. at 124. In other words, it referred to an alien
who “is convicted,” not to aliens who “have been” convicted. Id. at 121, 123
(internal quotation marks omitted). And it did not specify application to
convictions that occurred after a particular date. Id at 121.
Congress retained these two features when it adopted the aggravated-felony
provision. This provision too refers to an “alien who is convicted.” 8 U.S.C.
§ 1227(a)(2)(A)(iii) (emphasis added). And it likewise does not contain a date
limitation. Id.
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The two provisions use materially the same language, despite slight
differences. The provision that governs Hylton’s petition renders deportable “[a]ny
alien who is convicted of an aggravated felony at any time after admission,” while
the provision from Costello applied to “[a]ny alien . . . who . . . at any time after
entry is convicted of two crimes involving moral turpitude.” Id.; Costello, 376 U.S.
at 121. But we do not see how these slight differences alter the category of aliens
affected by these provisions.
Because Congress imported previously interpreted language when it added
the removal ground for aggravated felons, the analysis in Costello informs our
reading of the newer provision. Costello acknowledged that, read alone, the
language was susceptible to two “possible readings”; it could be read to “permit[]
deportation only of a person who was an alien at the time of his convictions” or to
“permit[] deportation of a person now an alien who at any time after entry has been
convicted of two crimes, regardless of his status at the time of the convictions.”
Costello, 376 U.S. at 124. But after applying the ordinary rules of statutory
interpretation, the Court concluded that the provision could not be applied against
an alien who was a citizen at the time of his convictions. Id. at 126–28.
Two rules of interpretation were independently dispositive in Costello. First,
under the then-existing scheme, a deportation ordered under the moral-turpitude
provision would be cancelled if the court that issued the convictions made a
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judicial recommendation against deportation within 30 days of issuing its sentence.
Id. at 126; see 8 U.S.C. § 1251(b)(2) (1964). Because a citizen would not be
eligible for this recommendation, that form of relief would be unavailable to aliens
who were naturalized citizens when convicted but were later denaturalized.
Costello, 376 U.S. at 127. Second, in the alternative, the Court was “constrained by
accepted principles of statutory construction . . . to resolve [any remaining] doubt
in favor of the petitioner,” in the light of the stakes for an alien facing removal. Id.
at 128.
Taken together, the prior-construction canon counsels in favor of reading
section 1227(a)(2)(A)(iii) like Costello read the moral-turpitude provision.
Congress adopted the provision against the background of Costello, so we
understand Congress to have adopted the limitation identified in Costello. See
Scalia & Garner, Reading Law § 54, at 326. This presumption has special force
because Costello and this appeal concern the same question, cf. Lightfoot v.
Cendant Mortg. Corp., 137 S. Ct. 553, 563 (2017), and involve provisions in the
same field, Scalia & Garner, Reading Law § 54, at 323.
The presumption of consistent usage also supports reading section
1227(a)(2)(A)(iii) as inapplicable to aliens like Hylton. We presume that “word[s]
or phrase[s] . . . bear the same meaning throughout a text,” and that presumption is
strengthened “the more connection the cited [provision] has with the [provision]
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under consideration.” Id. § 25, at 170, 173. Congress enacted the provision at issue
to follow immediately the provision from Costello. See Anti-Drug Abuse Act
§ 7344(a); 8 U.S.C. § 1251(a)(4) (1988). The two provisions remain in consecutive
subsections of the current Code. See 8 U.S.C. § 1227(a)(2)(A)(ii)–(iii) (2018);
Okpala v. Whitaker, 908 F.3d 965, 969 & n.2 (5th Cir. 2018). It would be odd if, in
two consecutive subsections of the Code, which use materially identical language,
the same words were read to mean one thing in the first subsection but another in
the second. All else being equal, we prefer a reading of the second that coheres
with binding precedent as to the first.
The relevant statutory scheme provides further support for this reading of
section 1227(a)(2)(A)(iii). The relevant scheme is the one in place in 1988, when
the provision was enacted. At that time, an alien could seek relief from removal
under the provision by obtaining a judicial recommendation against deportation.
See United States v. Bodre, 948 F.2d 28, 30 (1st Cir. 1991). So the reasoning of
Costello applies with equal force here. If the provision originally could have been
applied against an alien who was a citizen at the time of his convictions, that alien
would have been deprived of a remedy available to all other aliens. And because
“provisions of a text should be interpreted in a way that renders them compatible,”
Scalia & Garner, Reading Law § 27, at 180, we should not “adopt[] a construction
of [the aggravated-felony provision] which would [have], with respect to an entire
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class of aliens, completely nullif[ied] a procedure so intrinsic a part of the
legislative scheme,” Costello, 376 U.S. at 127–28.
It makes no difference that the current statutory scheme no longer permits
judicial recommendations against deportation. Congress abolished that form of
relief in 1990. See Immigration Act of 1990, Pub. L. No. 101-649, § 505, 104 Stat.
4978, 5050. But just as we apply a “strong presumption against implied repeals,”
Ray v. Spirit Airlines, Inc., 767 F.3d 1220, 1222 (11th Cir. 2014), we apply a
presumption against implied changes to the meaning of a still-in-force statute. “A
clear, authoritative judicial holding on the meaning of a particular provision should
not be cast in doubt . . . whenever a related though not utterly inconsistent
provision is adopted[.]” Scalia & Garner, Reading Law § 55, at 331. If Congress
wanted to alter the scope of the removability grounds, it would have done so
explicitly.
Applying these canons of construction, we conclude that the meaning of
section 1227(a)(2)(A)(iii) is unambiguous. Although no canon is absolute, the
relevant canons all cut in the same direction, and we must give effect to the clear
expression of Congress. Section 1227(a)(2)(A)(iii) does not make aliens who were
citizens at the time of their predicate convictions removable. And we decline the
government’s invitation to defer to the Board’s contrary reading. “Where, as here,
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the canons supply an answer, Chevron leaves the stage.” Epic Sys. Corp. v. Lewis,
138 S. Ct. 1612, 1630 (2018) (internal quotation marks omitted).
The government contends that it is dispositive for purposes of the first step
of Chevron that Costello referred to the language at issue as ambiguous. 376 U.S.
at 124–25. But the provision in Costello was ambiguous only when read in
isolation; the ambiguity no longer remained when the language was read in its
statutory context, as it must be. Id.; Robinson v. Shell Oil Co., 519 U.S 337, 341
(1997) (“The plainness or ambiguity of statutory language is determined by
reference to the language itself, the specific context in which that language is used,
and the broader context of the statute as a whole.”). And regardless, a pre-Chevron
recognition of linguistic ambiguity does not necessarily establish ambiguity in the
Chevron sense. United States v. Home Concrete & Supply, LLC, 566 U.S. 478,
488–89 (2012) (plurality op.).
The Board’s decision likewise rested on misunderstandings of Costello. The
Board asserted that Costello was “primarily predicated” on the importance of the
judicial recommendation against deportation. Rossi, 11 I. & N. Dec. at 515–16. But
Costello identified the immigration rule of lenity as an independent basis for its
holding. 376 U.S. at 128. When a court interprets a statute before the agency does
and determines that the statute is unambiguous based on the rule of lenity, its
reading is binding on the implementing agency. See Nat’l Cable & Telecomms.
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Ass’n v. Brand X Internet Servs., 545 U.S. 967, 984–85 (2005); see also Sash v.
Zenk, 439 F.3d 61, 67 n.6 (2d Cir. 2006) (Sotomayor, J.) (explaining that Brand X
creates an exception to the ordinary rule that “Chevron deference will apply prior
to the rule of lenity”). And, setting the rule of lenity aside, the Board put too much
weight on Congress’s elimination of the judicial recommendation against
deportation. We reiterate that that change did not impliedly alter the controlling
construction of the removal provisions. Scalia & Garner, Reading Law § 55, at
331.
Nor, as the government asserts, did the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 impliedly alter the meaning of section
1227(a)(2)(A)(iii). The government points to an amendment that expanded the
definition of “aggravated felony.” Pub. L. No. 104-208, § 321, 110 Stat. 3009-627.
As codified, the amendment established that “the term”—as in, the new
definition—“applies regardless of whether the conviction was entered before, on,
or after September 30, 1996.” 8 U.S.C. § 1101(a)(43). But we do not see how this
amendment has any bearing on the retroactivity of the aggravated-felony removal
ground. Section 1101(a)(43) did not sub silentio alter other provisions of our
immigration law. See Okpala, 908 F.3d at 970 n.3.
Finally, the factual distinctions identified by the government and the Board
are immaterial. True enough, there are differences between Costello’s background
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and Hylton’s. For example, Costello was an American citizen when he committed
the crimes that became the basis for his removability, and Hylton was an alien. But
Costello makes clear that, because section 1227(a)(2)(A)(iii) refers to an alien who
is convicted of an aggravated felony, we are concerned with the alien’s citizenship
status at the time of conviction, not the time of the crime. 376 U.S. at 123, 125,
127. We may not “‘reinterpret’ the [Supreme] Court’s binding precedent in [the]
light of irrelevant factual distinctions.” Balintulo v. Daimler AG, 727 F.3d 174, 190
(2d Cir. 2013).
B. We May Not Treat Denaturalized Aliens As If They Were Aliens at the Time of Their Convictions.
We are similarly unpersuaded by the government’s alternative argument as
to why we should deny Hylton’s petition. The government asserts that, because
denaturalization operates ab initio, 8 U.S.C. § 1451(e), it “relates back” to the date
of Hylton’s convictions. So, in its view, we should treat him as if he had been an
alien then. But, as the government acknowledges, Costello squarely rejected this
reading of section 1451. 376 U.S. at 128–29. The Supreme Court explained that, if
Congress had wanted denaturalization to have retroactive effect for purposes of
deportation, it should have made that intent explicit. Id. at 129–30, 132. Because
only the Supreme Court may overturn its precedents, Costello controls our
resolution of this issue. State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); Bryan A.
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Garner et al., The Law of Judicial Precedent § 2, at 29 (2016). We may not pretend
that Hylton was an alien all along. Okpala, 908 F.3d at 969–70.
IV. CONCLUSION
We GRANT the petition for review, VACATE the decision of the Board,
and REMAND for further proceedings consistent with our opinion.