Kamal Patel v. Janet Napolitano , 706 F.3d 370 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KAMAL PATEL, a/k/a Kamalbhai 
Kanti Patel,
Plaintiff-Appellant,
v.
 No. 11-6386
JANET NAPOLITANO; JONATHAN R.
SCHARFEN; ERIC HOLDER; HARLEY
LAPPIN,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Dever III, Chief District Judge.
(5:10-ct-03088-D)
Argued: October 23, 2012
Decided: January 25, 2013
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed by published opinion. Judge Gregory wrote the
majority opinion, in which Judge Shedd joined. Judge Davis
wrote a dissenting opinion.
COUNSEL
ARGUED: Stephanie D. Taylor, JONES DAY, Pittsburgh,
Pennsylvania, for Appellant. Seth Morgan Wood, OFFICE
2 PATEL v. NAPOLITANO
OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellees. ON BRIEF: Lawrence D. Rosen-
berg, JONES DAY, Washington, D.C., for Appellant. Thomas
G. Walker, United States Attorney, R. A. Renfer, Jr., Assis-
tant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appel-
lees.
OPINION
GREGORY, Circuit Judge:
Kamal Patel, a permanent resident alien and federal inmate,
appeals the dismissal of his action under 8 U.S.C. § 1503(a)
for a judgment declaring him a United States national. Patel
alleges that he is a United States national because he applied
for citizenship, registered for the Selective Service, and
declared his permanent allegiance to various United States
officials. Because we hold that these facts fail to allege United
States nationality under § 1503(a), we affirm the dismissal.
I.
We set forth the facts as alleged in Patel’s amended com-
plaint. Patel is a federal inmate who has resided in the United
States since the age of eleven and has been a permanent resi-
dent for almost twenty-five years. He registered for the Selec-
tive Service at eighteen. He has sworn an oath of allegiance
to the United States and submitted evidence of his oath to an
immigration judge, the President of the United States, the
Secretary of State, and the Attorney General. Nearly every
member of his family is a United States citizen or permanent
resident. Patel applied for citizenship, but he does not claim
to have completed the naturalization process. Removal pro-
ceedings have not been initiated against him.
PATEL v. NAPOLITANO 3
Because the Federal Bureau of Prisons classifies Patel as an
alien, he is ineligible for a number of prison rehabilitation
programs, including prerelease classes and community con-
finement. In an effort to become eligible for those programs,
he brought this action seeking to be declared a United States
national under 8 U.S.C. § 1503(a) against the Secretary of
Homeland Security, the Director of the United States Citizen-
ship and Immigration Services, the Attorney General of the
United States, and the Director of the Federal Bureau of Pris-
ons.
The district court dismissed Patel’s complaint under 28
U.S.C. § 1915A(b)(1) for failure to state a claim upon which
relief may be granted. Rather than addressing Patel’s
§ 1503(a) claim, the court misconstrued the complaint to
assert a habeas claim under 28 U.S.C. § 2255 and a claim
under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). The court reasoned
that these claims failed as a matter of law because inmates do
not have a constitutional right to participate in rehabilitative
programs. Patel timely appealed.
II.
Although the district court failed to address Patel’s
§ 1503(a) claim, we examine the record de novo to determine
whether he states a claim. See Brown v. N.C. Dep’t of Corr.,
612 F.3d 720, 722 (4th Cir. 2010).
Section 1503(a), a provision of the Immigration and
Nationality Act ("INA"), provides that any person within the
United States who "claims a right or privilege as a national of
the United States and is denied such right or privilege by any
department or independent agency . . . upon the ground that
he is not a national of the United States," may bring an action
against the relevant department or agency head for "a judg-
ment declaring him to be a national of the United States." 8
U.S.C. § 1503(a) (2006). An action may not be brought if the
4 PATEL v. NAPOLITANO
person’s status as a national became an issue "by reason of,
or in connection with any removal proceeding" or "is in issue
in any such removal proceeding." Id.Because § 1503(a) does not specify when a person should
be declared a "national of the United States," we look to the
nationality provisions of the INA for guidance. The INA
defines the term "national of the United States" as "(A) a citi-
zen of the United States, or (B) a person who, though not a
citizen of the United States, owes permanent allegiance to the
United States." Id. § 1101(a)(22). The INA goes on to specify
the means by which United States nationality may be
acquired, which are limited to birth and naturalization. Id.
§§ 1401-1409 ("Nationality at Birth and Collective Natural-
ization"), §§ 1421-1459 ("Nationality Through Naturaliza-
tion"). Persons born in the United States, or, under certain
circumstances, abroad to United States citizen parents, are
"nationals and citizens of the United States at birth." Id.
§ 1401. Persons born in an outlying possession of the United
States (American Samoa or Swains Island), or abroad to non-
citizen national parents, are "nationals, but not citizens, of the
United States at birth." See id. § 1408, § 1101(a)(29). For
those not born United States nationals, the only means pro-
vided by the INA for acquiring United States nationality is
naturalization. See id. §§ 1421-1459.
Patel does not claim to have acquired United States nation-
ality through birth or naturalization. Rather, he argues that he
qualifies as a United States national under the definition pro-
vided in § 1101(a)(22)(B), as interpreted by this Court in
United States v. Morin, 80 F.3d 124, 126 (4th Cir. 1996). In
Morin, we held that a permanent resident alien who had
applied for citizenship was a United States national under
§ 1101(a)(22), which was cross-referenced by a criminal stat-
ute. 80 F.3d at 126. Without addressing whether the alien sat-
isfied any of the statutory procedures for acquiring United
States nationality, we simply reasoned:
PATEL v. NAPOLITANO 5
A "national of the United States" may [ ] be "a per-
son who, though not a citizen of the United States,
owes permanent allegiance to the United States." 8
U.S.C. § 1101(a)(22). The district court found that
because Dr. Soto was a permanent resident alien of
the United States who had applied for United States
citizenship, he was indeed "a national of the United
States." We agree—an application for citizenship is
the most compelling evidence of permanent alle-
giance to the United States short of citizenship itself.
Id.Patel argues that he qualifies as a United States national
under Morin because he has demonstrated his allegiance to
the United States by applying for citizenship, registering for
the Selective Service, and providing evidence of his oath of
allegiance to United States government officials. Although we
agree with Patel that he would state a claim under Morin’s
interpretation of § 1101(a)(22)(B), for the reasons explained
below, we conclude that Morin’s interpretation does not con-
trol over the contrary, post-Morin interpretation of the statute
by the Board of Immigration Appeals (BIA).
As a threshold matter, we emphasize that the statutory pro-
vision at issue—8 U.S.C. § 1101(a)(22)—is a provision of the
INA. The INA provides that "[t]he Secretary of Homeland
Security shall be charged with the administration and enforce-
ment of [the statute]" and that the "determination and ruling
by the Attorney General with respect to all questions of law
shall be controlling." 8 U.S.C. § 1103(a)(1). Under the
Supreme Court’s decision in Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837 (1984), when Congress
delegates authority to the executive department to administer
a statute, the executive department’s interpretation of ambigu-
ous statutory provisions is entitled to "controlling weight,"
unless that interpretation is "arbitrary, capricious, or mani-
festly contrary to the statute." 467 U.S. at 843-44. Thus,
6 PATEL v. NAPOLITANO
because the BIA possesses delegated authority from the Attor-
ney General to administer the INA, "the BIA should be
accorded Chevron deference as it gives ambiguous statutory
terms [in the INA] concrete meaning through a process of
case-by-case adjudication." I.N.S. v. Aguirre-Aguirre, 526
U.S. 415, 425 (1999) (citing INS v. Cardoza-Fonseca, 480
U.S. 421, 448-49 (1987)).
The BIA, for its part, has long rejected the interpretation of
§ 1101(a)(22) that we advanced in Morin. See Matter of
Tuitasi, 15 I. & N. Dec. 102, 103 (BIA 1974) (holding that
§ 1101(a)(22)(B) does not confer nationality on aliens who
claim only to owe permanent allegiance to the United States).
The BIA reaffirmed this position in In re Navas-Acosta, 23 I.
& N. Dec. 586, 588 (BIA 2003), which was decided after
Morin. Drawing on the historical meaning of the word "na-
tional" and the statutory framework of the INA, the BIA con-
cluded that § 1101(a)(22) does not provide a method for
acquiring United States nationality; rather, "nationality under
the Act may be acquired only through birth or naturalization."
Navas-Acosta, 23 I. & N. Dec. at 588. Referencing the spe-
cific language of § 1101(a)(22)(B), the BIA explained that
"whether one ‘owes permanent allegiance to the United
States[ ]’ is not simply a matter of individual choice. Instead,
it reflects a legal relationship between an individual and a
sovereign." Id. at 587-88 (internal citation omitted). That rela-
tionship may not be created through unilateral declarations of
allegiance, but rather, may only arise in "compliance with the
conditions set by Congress." Id. at 588.
In Morin, we did not so much as mention the BIA’s inter-
pretation of § 1101(a)(22), much less decide the level of def-
erence it should command. In a subsequent decision,
however, we clarified that the BIA’s interpretation is entitled
to Chevron deference. See Fernandez v. Keisler, 502 F.3d
337, 343-47, 349-51 (4th Cir. 2007). Fernandez was a
removal case in which the petitioner, a permanent resident
alien, claimed to be a United States national under Morin
PATEL v. NAPOLITANO 7
because he had applied for citizenship, while the BIA argued
that he was an alien subject to removal because he had not
completed the naturalization process. Fernandez, 502 F.3d at
339-40. To resolve the question, we first determined that the
Chevron framework extends to the BIA’s interpretation of the
INA even in nationality claims.1 Id. at 342-46. We then deter-
mined that § 1101(a)(22)(B) is ambiguous because Congress
did not "directly address[ ] the precise question" of when a
person should be deemed to owe permanent allegiance to the
United States. Id. at 348 (quoting Chevron, 467 U.S. at 843)).
Then, after analyzing the historical meaning of the term "na-
tional" and the text and structure of the INA, we concluded
that the BIA’s interpretation should be given controlling
weight because it is not "arbitrary, capricious, or manifestly
contrary to the statute." Id. at 351 (quoting Chevron, 467 U.S.
at 844).
In National Cable & Telecommunications Association v.
Brand X Internet Services, 545 U.S. 967 (2005), the Supreme
Court held that "[b]efore a judicial construction of a statute,
whether contained in a precedent or not, may trump an agen-
cy’s, the court must hold that the statute unambiguously
requires the court’s construction." 545 U.S. at 985. Applying
that principle in Fernandez, we concluded that Morin did not
trump the BIA’s interpretation of § 1101(a)(22) because
Morin "did not hold that its interpretation was the only one
possible." Fernandez, 502 F.3d at 348. Morin merely assumed
that "§ 1101(a)(22) confers, rather than describes, nationality
. . . without saying anything, one way or the other, about
whether the statute dictated such an interpretation." Id.
"[F]aced with the question of whether a noncitizen’s natural-
1
In so ruling, we disagreed with some of our sister circuits, which have
declined to afford Chevron deference to the BIA’s interpretation of the
INA in nationality claims, reasoning that Congress placed the determina-
tion of nationality claims exclusively in the hands of the courts. See Alwan
v. Ashcroft, 388 F.3d 507, 510 (5th Cir. 2004); Perdomo-Padilla v. Ash-
croft, 333 F.3d 964, 967 (9th Cir. 2003).
8 PATEL v. NAPOLITANO
ization application is enough to confer nationality," the Morin
court "settled upon what it thought was, at the least, a sensible
construction of [the statute] but it did not hold that its inter-
pretation was the only one possible." Id.We are bound by our holding in Fernandez that the BIA’s
interpretation of § 1101(a)(22) must be given controlling
weight under Chevron and Brand X, notwithstanding Morin.
That issue was a question of first impression before the Fer-
nandez court, which we are not free to revisit. As we
explained in Fernandez, although Morin did not need to say
in "so many magic words" that its interpretation was the only
one permissible, the court’s statutory analysis, admittedly
without having the benefit of Brand X, fell short of showing
"that the plain language of the statute was controlling and that
there existed no room for contrary agency interpretation."
Fernandez, 502 F.3d at 347-48.
We thus conclude that Patel cannot state a claim to be a
United States national under Morin because we must defer to
the BIA’s contrary, post-Morin interpretation of
§ 1101(a)(22). See In re Navas-Acosta, 23 I. & N. Dec. 586,
588 (BIA 2003). The BIA has not changed its position that
§ 1101(a)(22) does not confer nationality on aliens who claim
only to have demonstrated permanent allegiance to the United
States. Under Brand X, we must defer to the BIA’s interpreta-
tion. See Brand X, 545 U.S. at 985. Any claim Patel might
have under Morin is therefore foreclosed.
The Supreme Court’s recent decision in U.S. v. Home Con-
crete & Supply, LLC, 132 S. Ct. 1836 (2012), does not alter
our conclusion. In Home Concrete, the Court ruled that its
prior decision in Colony, Inc. v. Commissioner, 357 U.S. 28(1958), controlled over a contrary interpretation of the tax
code by the IRS Commissioner. Home Concrete, 132 S. Ct.
at 1844. Although Colony, which was decided thirty years
before Chevron, acknowledged that the statutory text at issue
was not "unambiguous," the Home Concrete plurality rea-
PATEL v. NAPOLITANO 9
soned that "the linguistic ambiguity noted" did not reflect "a
post-Chevron conclusion that Congress had delegated gap-
filling power"; quite the contrary, Colony’s exercise in statu-
tory interpretation made clear that it "thought that Congress
had ‘directly spoken to the question at hand,’ and thus left
‘[n]o gap for the agency to fill.’" Home Concrete, 132 S. Ct.
at 1844 (quoting Chevron, 467 U.S. at 842–43). Specifically,
Colony had weighed the textual arguments on both sides,
examined the statute’s legislative history, determined that the
Commissioner’s interpretation would create incongruity in the
tax law, and arrived at its interpretation while "aware it was
rejecting the expert opinion of the Commissioner of Internal
Revenue." Home Concrete, 132 S. Ct. at 1844. Thus, the
Home Concrete plurality concluded that Brand X did not
require the Court to defer to the Commissioner’s interpreta-
tion. Id. at 1843-44.2
This case is distinguishable. Unlike Colony, Morin’s exer-
cise in statutory interpretation does not make clear that it
"thought that Congress had ‘directly spoken to the question at
hand,’ and thus left ‘[n]o gap for the agency to fill.’" Home
Concrete, 132 S. Ct. at 1844 (quoting Chevron, 467 U.S. at842–43). Morin did not analyze competing textual arguments,
did not examine the legislative history of § 1101(a)(22), did
not consider potential incongruity in the INA caused by
Morin’s interpretation, and did not expressly consider and
knowingly reject the BIA’s interpretation of the statute.
Although Patel claims that Home Concrete allows us to infer
that Morin was aware of the BIA’s interpretation because it
predated Morin, we find no support for that inference. In Col-
ony, the IRS Commissioner was a party to the case and the
2
Justice Scalia concurred in the judgment, disagreeing with the plurali-
ty’s view that Colony’s admission of statutory ambiguity did not render
null its precedential effect under Brand X. However, he believed that Col-
ony should control based on justifiable taxpayer reliance. Home Concrete,
132 S. Ct. at 1847-49 (Scalia, J., concurring in part and concurring in the
judgment).
10 PATEL v. NAPOLITANO
Court expressly considered and rejected the Commissioner’s
interpretation of the tax code. See Colony, Inc. v. C.I.R., 357
U.S. at 32-33, 36-37. Nothing in Morin suggests an awareness
of the BIA’s interpretation.
Nor are we persuaded by Patel’s contention that we should
afford Chevron deference to the BIA’s interpretation of
§ 1101(a)(22) only when the statute is at issue in removal
cases. Whether or not the Chevron framework applies
depends on whether Congress intended to delegate authority
to an agency to speak with the force of law when clarifying
ambiguous parts of a particular statute, not on the type of case
in which that statute is applied. See United States v. Mead
Corp., 533 U.S. 218, 229 (2001) (holding that the Chevron
framework applies when it is "apparent from the agency’s
generally conferred authority and other statutory circum-
stances that Congress would expect the agency to be able to
speak with the force of law when it addresses ambiguity in the
statute or fills a space in the enacted law"); Chevron, 467 U.S.
at 843-44 (holding that courts should defer to reasonable
agency constructions of a statute when "there is an express
delegation of authority to the agency to elucidate a specific
provision of the statute").
We are not free to selectively apply Chevron deference to
an agency’s interpretation of a statute in some cases, but not
in others. "[T]he meaning of words in a statute cannot change
with the statute’s application." United States v. Santos, 553
U.S. 507, 522 (2008) (citing Clark v. Martinez, 543 U.S. 371,
378 (2005)). "To hold otherwise ‘would render every statute
a chameleon’ and ‘would establish within our jurisprudence
. . . the dangerous principle that judges can give the same stat-
utory text different meanings in different cases.’" Id. at 522-
23 (quoting Clark, 543 U.S. at 382, 386). Thus, the BIA’s
interpretation must be given controlling weight whenever the
statute is applied. See Leocal v. Ashcroft, 543 U.S. 1, 11 n.8
(2004)("[W]e must interpret the statute consistently, whether
PATEL v. NAPOLITANO 11
we encounter its application in a criminal or noncriminal con-
text . . . .").
Patel does not claim to be a United States national under
the BIA’s interpretation of § 1101(a)(22). We therefore hold
that he fails to state a claim.3
III.
Nothing in our opinion prevents Patel from petitioning the
Federal Bureau of Prisons to extend the benefits provided to
United States nationals to permanent resident aliens, or from
challenging the basis for drawing such a distinction among
inmates through other means, political or legal. We hold only
that on the facts alleged, Patel does not state a claim to be a
United States national under the INA. For these reasons, we
affirm the judgment.
AFFIRMED
DAVIS, Circuit Judge, dissenting:
Respectfully, I dissent.
It is true, of course, that we have "the power to affirm a
judgment for any reason appearing on the record, notwith-
standing that the reason was not addressed below." McMahan
v. Int’l Ass’n of Bridge, Structural and Ornamental Iron
Workers, 964 F.2d 1462, 1467 (4th Cir. 1992) (citation omit-
ted). See also Blum v. Bacon, 457 U.S. 132, 137 n.5 (1982)
("[A]n appellee may rely upon any matter appearing in the
record in support of the judgment below."). Because we can,
however, does not mean we should.
3
The government argues that Patel also fails to state a claim under
§ 1503(a) because he fails to allege the deprivation of a right or privilege
of nationality. Given that Patel’s complaint fails for other reasons, we do
not reach that issue.
12 PATEL v. NAPOLITANO
On appeal from a district court’s Rule 12(b)(6) dismissal of
a complaint, we take the allegations of the complaint as true.
Coleman v. Md. Court of Appeals, 626 F.3d 187, 189 (4th Cir.
2010), aff’d, 132 S. Ct. 1327 (2012). Kamal Patel is a lawful
permanent resident of the United States who arrived in this
country with his family at an early age. Patel registered for the
Selective Service when he was 18. He also has applied for
United States citizenship. He has sent sworn declarations of
his allegiance to the United States to the President, the Secre-
tary of State, and an Immigration Law Judge.
In 1992, Patel was convicted of a drug offense; he has been
incarcerated in the United States since that time. He is sched-
uled to be released on July 28, 2014, according to the Bureau
of Prisons ("BOP") website. Because the BOP classifies Patel
as an alien, he is not eligible for certain prison programs
available only to United States nationals. These include pre-
community release, pre-community placement, participation
in the Residential Drug Abuse Program, participation in the
Life Connections Program, and halfway house placement.
Patel filed a complaint in June 2010 in the United States
District Court for the Eastern District of North Carolina seek-
ing a declaratory judgment under 28 U.S.C. § 22011 and 8
U.S.C. § 1503(a)2 that he is a national of the United States.
The district court, however, analyzed the claim by stating that
it was cognizable under 28 U.S.C. § 2241 or 28 U.S.C.
§ 2255, which deal with habeas actions, or Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971), which allows individuals to seek dam-
ages for certain kinds of constitutional violations committed
by federal agents. Patel did not seek relief under Bivens or
1
This section authorizes a federal court to "declare the rights and other
legal relations of any interested party seeking such declaration, whether or
not further relief is or could be sought." 28 U.S.C. § 2201(a).
2
This section spells out the procedure for seeking a declaration of
United States nationality. 8 U.S.C. § 1503(a).
PATEL v. NAPOLITANO 13
either of those statutes, however, nor did he mention any of
them in his complaint. Nonetheless, the district court quoted
an unpublished opinion from the United States District Court
for the Southern District of Ohio, stating, "[I]nmates do not
have any federal constitutional right to participate in rehabili-
tative programs. Nor does an inmate have any constitutionally
protected interest in a particular housing assignment or trans-
fer to a particular prison." J.A. 44 (quoting Ahmad v. United
States, No. 2:08-CV-364, 2009 WL 2486004, at *2 (S.D.
Ohio Aug. 11, 2009) (unpublished) (alteration in original)).
The district court concluded, "Thus, assuming without decid-
ing that Patel’s claim is cognizable, the claim fails on the mer-
its." This appeal followed, in the course of which we
appointed counsel to represent Patel.
I endorse judicial efficiency as much as any judge, espe-
cially for busy district courts, but there are untold benefits in
permitting district courts to correct their own errors; this will
sometimes require defendants in an inmate’s suit to respond,
by motion or answer, to a complaint. As the majority
acknowledges, ante at 3, the district court erroneously inter-
preted Patel’s complaint as asserting that he had a right to par-
ticipate in prison programs, and so the court dismissed the
complaint for failure to state a claim, noting that inmates do
not have a constitutional right to participate in rehabilitative
programs. That, however, is a different question from whether
Patel is eligible for participation in such programs, an issue
the district court failed to analyze. Accordingly, I would not
reach the merits and would instead simply vacate the judg-
ment and remand the case to the district court for further pro-
ceedings, including analysis of Patel’s claim under 8 U.S.C.
§ 1503.
Eschewing a remand, the majority elects to reach the merits
of the claim the district court never examined and concludes
that Patel failed to state a claim upon which relief could be
granted. Indeed, the majority holds that it is impossible for
him to state a declaratory judgment claim to the privileges of
14 PATEL v. NAPOLITANO
a "national of the United States," citing, inter alia, Fernandez
v. Keisler, 502 F.3d 337 (4th Cir. 2007), cert. denied sub nom.
Fernandez v. Mukasey, 555 U.S. 837 (2008). I cannot join in
this conclusion. Were I to reach the merits, for the reasons
well-stated by Judge Motz in her dissenting opinion in Fer-
nandez, id. at 352, I would conclude that Patel has stated a
cognizable claim.3 See United States v. Morin, 80 F.3d 124,
126 (4th Cir. 1996); see also McMellon v. United States, 387
F.3d 329, 333 (4th Cir. 2004) (en banc) ("[W]e have made it
clear that, as to conflicts between panel opinions, application
of the basic rule that one panel cannot overrule another
requires a panel to follow the earlier of the conflicting opin-
ions. See Booth v. Maryland, 327 F.3d 377, 383 (4th Cir.
2003).").
3
While I fully understand the convoluted bases for this circuit’s assault
on the continuing legitimacy of Morin, as begun in Fernandez and
enlarged upon by the majority here, in my view, Morin remains binding
circuit precedent that can only be abrogated by an en banc decision. In any
event, there is something odious in the government arguing (in Fernandez
and in the case at bar) the opposite of what it argued in Morin, when it
suited the government’s purpose. See Gov’t Brief, United States v. Morin,
1995 WL 17054182, at *12 n.3 (Sept. 15, 1995) ("Consequently, given
[the intended murder victim’s] pending application for citizenship, it can
fairly be said that he owed allegiance to the United States [and therefore
was a national of the United States]."). Manifestly, despite the criticisms
leveled at Judge Wilkinson’s Morin opinion in Fernandez and in the
majority opinion here, the Morin panel did not adopt its reading of 8
U.S.C. § 1101(a)(22) sua sponte and without due deliberation; it did so at
the urging of the government. And, after all, the Attorney General, the rel-
evant "executive department" involved here, see ante at 5, superintends
both the Board of Immigration Appeals as well as the Criminal Division
of the Department of Justice. It is indeed curious that a statute this Court
had no difficulty interpreting in 1996 (in a manner urged by the agents of
the Attorney General) now requires deference to, and a contrary interpre-
tive aid of, the BIA, when the very words of the statute have not changed.