Baljinder Singh v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-1778
_____________
BALJINDER SINGH,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF
AMERICA,
Respondent
_______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA A072-435-798)
Immigration Judge: Mirlande Tadal
_______________
Argued
January 26, 2021
Before: JORDAN, MATEY, Circuit Judges
and HORAN,* District Judge.
(Filed: August 31, 2021)
_______________
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
_______________
OPINION OF THE COURT
_______________
*
The Honorable Marilyn Horan, United States District
Judge for the Western District of Pennsylvania, sitting by
designation.
2
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consequence, his citizenship was revoked.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
3
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
1
MDMA, short for 3,4-
methylenedioxymethamphetamine, is also sometimes called
“ecstasy” and is a psychoactive drug listed as a schedule I
controlled substance. Drug Scheduling, U.S. DRUG
ENFORCEMENT ADMIN., https://www.dea.gov/drug-scheduling
(last visited March 29, 2021).
4
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
5
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
2
The BIA had jurisdiction under 8 C.F.R.
§ 1003.1(b)(3), and we have jurisdiction under 8 U.S.C.
§ 1252(a), though our jurisdiction to review a final order of
removal based on the commission of an aggravated felony or a
controlled substances offense is limited to “constitutional
claims or questions of law[.]” 8 U.S.C. § 1252(a)(2)(C)-(D).
We review the BIA’s legal determinations de novo, unless
Chevron deference applies. Sambare v. Att’y Gen., 925 F.3d
124, 127 (3d Cir. 2019).
6
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.
3
The aggravated felony provision, 8 U.S.C.
§ 1227(a)(2)(A)(iii), provides:
(a) Classes of deportable aliens - Any
alien (including an alien crewman) in and
admitted to the United States shall, upon
the order of the Attorney General, be
removed if the alien is within one or more
of the following classes of deportable
aliens: ... (2) Criminal offenses (A)
General crimes ... (iii) Aggravated felony
- Any alien who is convicted of an
aggravated felony at any time after
admission is deportable.
The controlled substances provision, 8 U.S.C
§ 1227(a)(2)(B)(i), provides:
(B) Controlled substances – (i)
Conviction - Any alien who at any time
after admission has been convicted of a
violation of (or a conspiracy or attempt to
violate) any law or regulation of a State,
the United States, or a foreign country
relating to a controlled substance (as
defined in section 802 of Title 21), other
than a single offense involving possession
for one’s own use of 30 grams or less of
marijuana, is deportable.
7
§ 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 (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.
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 (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
8
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(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
4
The government waived any argument as to the
controlled substances provision by failing to brief it. Khan v.
Att’y Gen., 691 F.3d 488, 495 n.4 (3d Cir. 2012) (“[A]n issue
is waived unless a party raises it in its opening brief, and for
those purposes a passing reference to an issue will not suffice
to bring that issue before this court.” (quoting Skretvedt v. E.I.
DuPont DeNemours, 372 F.3d 193, 202-03 (3d Cir. 2004))).
5
As discussed in greater detail herein, infra section
II.B., Chevron deference involves a two-step inquiry. At step
one, we ask whether the statute at issue “is silent or ambiguous
with respect to the specific issue[.]” Yusupov v. Att’y Gen., 518
F.3d 185, 198 (3d Cir. 2008) (quoting Chevron, U.S.A., Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984)). If the
statute is ambiguous, we ask, at step two, whether the BIA’s
interpretation is reasonable. Id.
9
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; Eichenlaub,
338 U.S. at 532. 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.
Eichenlaub is the earlier opinion. In that case, the
individuals seeking relief were naturalized citizens convicted
of conspiracy to violate the Espionage Act of 1917.
Eichenlaub, 338 U.S. at 523. They were subsequently
denaturalized for procuring their citizenship by fraud. Id. The
Supreme Court held them deportable under a statute directed
at “all aliens who since August 1, 1914, have been or may
10
hereafter be convicted” of violations of the Espionage Act. Id.
at 523-27 (quoting Act of 1920, Pub. L. No. 197, 41 Stat. 593).
The Court said that the plain language of the statute did not
“limit its scope to aliens who have never been naturalized[,]”
id. at 528, and that Congress’s decision to not make a
distinction between aliens who had never been naturalized and
those who were naturalized but later denaturalized indicated
the statute “is applicable to all such offenders.” Id. at 530. It
decided that there were national security implications to the
case that had to be considered and it also noted that a contrary
holding would allow a denaturalized alien “to set up a canceled
fraudulent status as a defense, and successfully ... claim
benefits and advantages under it.” Id. at 531-32. While ruling
largely for the government, the Court nevertheless rejected the
government’s urging to “give a retroactive effect to the
denaturalization orders[.]” Id. at 529-30. It based its holding
instead on the interpretation of the plain text of the statute. Id.In Costello, the Supreme Court addressed a since-
revised deportation provision which, though focused on crimes
of moral turpitude, bears important textual similarities to the
aggravated felony provision before us now. The Court
considered whether that former section of the INA, 8 U.S.C.
§ 1251(a)(4), now amended and located at 8 U.S.C.
§ 1227(a)(2)(A)(ii), applied to someone who was a naturalized
citizen when he was convicted of income tax evasion but who
was later denaturalized on the ground that his citizenship had
been acquired by willful misrepresentation. Costello, 376 U.S.
at 121. Similar to the aggravated felony provision, the “moral-
turpitude” deportation provision provided that “[a]ny alien in
the United States ... shall ... be deported who ... at any time
after entry is convicted of two crimes involving moral
turpitude[.]” Id. (quoting 8 U.S.C. § 1251(a)(4)).
11
The Costello Court considered the provision’s statutory
language, the relevance of Eichenlaub, legislative history, the
statutory scheme, and the rule of lenity. Id. at 122-28. It held
that the statute’s present tense verbiage—“is convicted”—and
the phrase “at any time after entry” did not resolve whether the
petitioner was subject to removal under the statute at issue. Id.
at 122, 125 (emphasis added). The Court distinguished
Eichenlaub, finding it “evident” from the past tense verb in the
statute at issue there and clear legislative history evincing
intent to deport “denaturalized citizens along with aliens ... for
specific crimes involving national security[,]” that deportation
was in order in that case. Id. at 123-24. None of those
considerations, however, were implicated by the statute the
Costello Court faced. Id. at 124.
Because the language and history of the statute did not
resolve the ambiguity the Costello Court perceived in it,6 the
Court turned to a specific legal remedy available to the
6
The Court specifically referenced the “ambiguity of
the statutory language” as one conveying two “possible
readings of the statute[.]” Costello v. INS, 376 U.S. 120, 124-
25 (1964). It “t[ook] a different view” from the court of
appeals, which found “no ambiguity ... and no room for
interpretation or construction.” Id. at 122-23 (citation and
quotation mark omitted). And it painstakingly distinguished
the moral-turpitude deportation provision from the statute at
issue in Eichenlaub, which, in contrast, was viewed by the
Court “as una[m]biguously authorizing deportation.” Id. at
123. All of this was, of course, two decades before Chevron
changed the legal consequences of declaring a statute to be
ambiguous.
12
petitioner to reach its holding. That legal remedy, the judicial
recommendation against deportation (“JRAD”), allowed a
sentencing court to recommend that an alien should not be
deported even if statutorily eligible for that consequence. Id.
at 126. The Court reasoned that, if the deportation provisions
of the statute at issue “were construed to apply to those
convicted when they were naturalized citizens, the protective
provisions of [the JRAD] would, as to them, become a dead
letter” because sentencing courts lacked jurisdiction to make a
JRAD recommendation on behalf of a citizen. Id. at 127. The
Court said it would “hesitate” before adopting the
government’s construction of the statute as that interpretation
would “completely nullify a procedure so intrinsic a part of the
legislative scheme” for “an entire class of aliens.” Id. at 127-
28.
Then, looking at the rule of lenity,7 the Court continued:
“If, however, despite the impact of [the JRAD provision], it
should still be thought that ... the matter [was] in some doubt,
we would nonetheless be constrained by accepted principles of
statutory construction in this area of the law to resolve the
doubt in favor of the petitioner.” Id. at 128 (emphasis added).
The magnitude of the penalty of deportation warranted
application of the rule of lenity, thus giving the benefit of
ambiguity to the petitioner, not the government. The Court
declared, “we will not assume that Congress meant to trench
on [the petitioner’s] freedom beyond that which is required by
7
The rule of lenity in the immigration context is “the
longstanding principle of construing any lingering ambiguities
in deportation statutes in favor of the alien.” I.N.S. v. Cardoza-
Fonseca, 480 U.S. 421, 449 (1987) (citations omitted).
13
the narrowest of several possible meanings of the words used.”
Id. (quoting Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948)).
The Costello Court also rejected the government’s
alternative argument, under which the petitioner’s citizenship
would be considered a nullity from the start because 8 U.S.C.
§ 1451(a) provides that an order of denaturalization “shall be
effective as of the original date” of the naturalization order. Id.
at 128-29 (citing 8 U.S.C. § 1451(a)). The government
contended that the cancellation of the petitioner’s certificate of
naturalization related back to the year of his original
naturalization, thus making him an alien at the time he was
convicted. Id. at 129. The Court called the “relation-back
concept ... a legal fiction at best,” and found no indication in
the text or history of § 1451(a) that Congress intended it to
apply to “the general deportation provisions of the [INA].” Id.
at 129-30. Instead, the Court explained that Congress codified
existing case law that denaturalization related back to the date
of naturalization “for the purpose of determining rights of
derivative citizenship,” not for “construing a deportation
statute.” Id. The relation-back “fiction” had been effectively
rejected in Eichenlaub, and the Court adhered to that. Id. at
130.
B. We need not defer to the BIA’s decision under
Chevron.
We next consider whether we must defer to the BIA’s
ruling in Singh’s case. Although we do not afford Chevron
deference to nonprecedential BIA decisions, see Da Silva v.
Att’y Gen., 948 F.3d 629, 633 (3d Cir. 2020), the government
argues that the BIA’s decision interpreting the aggravated
felony provision in Singh’s case is entitled to deference
14
because it is directly controlled by the BIA’s precedential
decisions in Rossi and Gonzalez-Muro. We agree at least that
the Chevron framework is applicable to determine whether
deference is warranted.8 See Mejia-Castanon v. Att’y Gen.,
931 F.3d 224, 231, 236 (3d Cir. 2019) (deferring to a
nonprecedential BIA decision that relied on a precedential BIA
decision). But Singh prevails within the context of the two-
step Chevron inquiry.
8
There are certain situations in which Chevron
deference is not applicable as a threshold matter, but Singh’s
arguments do not persuade us that this is one. He first argues
that we should not defer to the agency because Costello
controls our analysis. But the Supreme Court declared that “a
court’s prior interpretation of a statute ... override[s] an
agency’s interpretation only if the relevant court decision held
the statute unambiguous.” Nat’l Cable & Telecomms. Ass’n v.
Brand X Internet Servs., 545 U.S. 967, 984 (2005). Because
that question turns on whether the prior case viewed the statute
as delegating gap-filling power to the agency through
ambiguous language, it is better suited for discussion at the first
step of Chevron. See United States v. Home Concrete &
Supply, LLC, 566 U.S. 478, 488-89 (2012).
Nor are we persuaded by Singh’s remaining arguments
that the government waived the application of Chevron for
failure to raise it previously or that this case implicates such an
“extraordinary” issue that Congress would not have delegated
it to an agency. Cf. King v. Burwell, 576 U.S. 473, 485-86
(2015) (declining to defer where the interpretation of
Affordable Care Act’s tax credit provision “involv[ed] billions
of dollars in spending each year and affect[ed] the price of
health insurance for millions of people”).
15
1. Chevron Step One
The first step of the Chevron inquiry requires us to ask
whether the statute is ambiguous as to Singh’s removability.
Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir. 2008). If
Congress did not leave the statute ambiguous as to the specific
issue under consideration, we do not defer to the agency’s
interpretation. Id. “In discerning congressional intent, we look
first to the plain text of the statute.” Cazun v. Att’y Gen., 856
F.3d 249, 255 (3d Cir. 2017).
The aggravated felony provision provides:
(a) Classes of deportable aliens - Any alien
(including an alien crewman) in and admitted to
the United States shall, upon the order of the
Attorney General, be removed if the alien is
within one or more of the following classes of
deportable aliens: ... (2) Criminal offenses (A)
General crimes ... (iii) Aggravated felony - 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). The INA defines the term
“alien” to mean “any person not a citizen or national of the
United States.” 8 U.S.C. § 1101(a)(3). As someone who was
a naturalized citizen at the time of his conviction, Singh argues
that the aggravated felony provision unambiguously excludes
him, as Congress limited the reach of that provision to those
who were aliens at the time of conviction. The government
contends that, to the contrary, the aggravated felony provision
is ambiguous because it allows for two plausible
interpretations: one applying to any person who was an alien
16
at the time of conviction for the removable offense, and the
other applying to any person who is now an alien, regardless
of his or her citizenship status at the time of conviction for the
offense.
The government’s position requires some suspension of
disbelief. After all, the statute is expressly directed at “aliens,”
and one who is a citizen is, by definition, not an alien. It would
seem there is no ambiguity there. The natural reading of the
passive voice, present tense verb (“[a]ny alien who is
convicted”) indicates it is important that citizenship status be
assessed as of the time of conviction. 8 U.S.C.
§ 1227(a)(2)(A)(iii). The Supreme Court’s distinguishing of
the Eichenlaub statute’s past tense verb buttresses that
interpretation, since aliens who “have been” convicted need
not have been aliens at the time of conviction to fit within that
linguistic scope. Costello, 376 U.S. at 123. And for the
reasons explained in Costello, the phrase “at any time after
admission” would not violate the presumption against
superfluity if the statute required the individual facing removal
to have been an alien at the time of conviction, as it could be
read to permit the removal of aliens who were not originally
excludable but were convicted after admission. Id. at 125; 8
U.S.C. § 1227(a)(2)(A)(iii).
In addition, “‘our duty to construe statutes, not isolated
provisions,’ means that definitions in other parts of the INA
may also shed light on what Congress envisioned[.]” Si Min
Cen v. Att’y Gen., 825 F.3d 177, 193 (3d Cir. 2016) (quoting
Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 568 (1995)). We
“‘normally’ give ‘identical words and phrases within the same
statute … the same meaning,’” id. (quoting Powerex Corp. v.
Reliant Energy Servs., Inc., 551 U.S. 224, 232 (2007)
17
(alteration in original)), and the corollary of that canon is
equally true: parallel provisions in the same statute utilizing
different words suggest differing meanings. Russello v. United
States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” (alteration in original) (citations
omitted)). Thus, when we see, in contrast to the phrase “is
convicted” in the aggravated felony provision, 8 U.S.C.
§ 1227(a)(2)(A)(iii), the use of the past tense “has been
convicted” elsewhere in the INA, it lends further support to the
conclusion that the aggravated felony provision excludes
Singh. For example, the controlled substances provision
permits deportation of any alien who “has been convicted[.]” 8
U.S.C § 1227(a)(2)(B)(i) (emphasis added). Congress’s choice
of a different verb tense in a parallel deportation provision of
the INA demonstrates that the aggravated felony provision
only applies to individuals who were aliens at the time of
conviction.
All of that would lead us to agree with Singh that, as a
textual matter, the aggravated felony provision unambiguously
excludes him from its reach. But our analysis does not end
there. The government is quick to point out that the Supreme
Court in Costello held the text of the similarly worded moral-
turpitude provision was ambiguous. And the government
contends that we should accept that finding of ambiguity, but
not Costello’s holding against deportability, as “[a] court’s
prior judicial construction of a statute trumps an agency
construction otherwise entitled to Chevron deference only if
the prior court decision holds that its construction follows from
the unambiguous terms of the statute[.]” Nat’l Cable &
18
Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967,
982 (2005). That is the sum total of the government’s
reasoning on this point. It offers no independent textual
analysis of the aggravated felony provision but simply relies
on Costello’s reference to ambiguity in the moral-turpitude
provision. It likes that much of Costello, but only that much.
And it is true that the two removal provisions have similar
wording and identical purposes—describing what types of
crimes render aliens removable if the aliens are convicted.
We thus find ourselves in the difficult position of
looking at statutory text that seems plain to us but is very
similar to language declared by the Supreme Court to be
ambiguous, although that declaration came long before
Chevron imbued the notion of ambiguity with the
transformative power it now has. To utter the word
“ambiguous” today is to shift authority for statutory
interpretation from the judicial to the executive branch, which
makes for quite a large footnote to Marbury v. Madison, 5 U.S.
137, 177 (1803) (“It is emphatically the province and duty of
the judicial department to say what the law is.”).
In Hylton v. Attorney General, the United States Court
of Appeals for the Eleventh Circuit recently faced the
conundrum created by Costello’s invocation of ambiguity, and
found its way out by saying, “a pre-Chevron recognition of
linguistic ambiguity does not necessarily establish ambiguity
in the Chevron sense.” 992 F.3d 1154, 1160 (11th Cir. 2021).
For that principle, the court relied on a plurality opinion of the
Supreme Court in United States v. Home Concrete & Supply,
LLC, 566 U.S. 478, 488-89 (2012). The Supreme Court said
there that stare decisis may, in certain circumstances, triumph
over Chevron deference, and it declined to afford deference to
19
an agency’s statutory construction despite statutory
ambiguity.9 Id. at 488-90. The Eleventh Circuit took that same
route in holding that a petitioner in exactly Singh’s position
was not removable under the aggravated felony provision
because he was a citizen at the time of conviction. Hylton, 992
F.3d at 1160-61. It reasoned that the “plain meaning” of the
aggravated felony provision “forecloses the [BIA’s]
interpretation, and binding precedent, [Costello], forecloses
treating Hylton’s denaturalization as retroactive for removal
9
The Home Concrete plurality held that a prior pre-
Chevron case, Colony, Inc. v. Comm’r, 357 U.S. 28, 33 (1958),
did not “reflect[ ] a post-Chevron conclusion that Congress had
delegated gap-filling power to the agency.” 566 U.S. at 488-
89. The plurality acknowledged that the Colony Court stated
the statutory language at issue was “not ‘unambiguous[,]’” and
then posited that “[t]he question is whether the Court in Colony
concluded that the statute left such a gap.” Id. at 488-89(quoting Colony, 357 U.S. at 33). It looked to several factors
to decide that there was no gap for the agency to fill: Colony
“said that the taxpayer had the better side of the textual
argument[,]” it viewed the legislative history as demonstrating
“that Congress had decided the question definitively,” and a
contrary interpretation “would create a patent incongruity in
the tax law.” Id. at 489 (citations and internal quotation marks
removed).
In an opinion concurring except as to the plurality’s
discussion relevant to this issue, Justice Scalia viewed Colony
in a different light, saying that it made “it inescapably clear
that the Court thought the statute ambiguous[.]” Id. at 494(Scalia, J., concurring in part and concurring in the judgment).
20
purposes.” Id. at 1156. It thus granted the petition for review.
Id. at 1161.
We agree with most of that reasoning but have difficulty
with one key aspect of the decision. We have trouble getting
past Costello’s emphasis on the ambiguity of the nearly
identical statutory language. See Costello, 376 U.S. at 124(explaining that the parties’ differing interpretations “are both
possible readings of the statute”); see also Home Concrete, 566
U.S. at 496 (Scalia, J., concurring in part and concurring in the
judgment) (warning that, where the prior case interpreting the
statute “said unambiguously that the text was ambiguous,” a
later court’s contrary conclusion would “deny stare decisis
effect to [the prior case] as a pre-Chevron decision”); Marks v.
United States, 430 U.S. 188, 193 (1977) (explaining that a
plurality holding “may be viewed as that position taken by
those Members who concurred in the judgments on the
narrowest grounds[.]” (citation and internal quotation marks
omitted)).
The Hylton court held that the moral turpitude provision
at issue 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.” 992 F.3d at
1160. And, the court continued, reading the language in
context required resort not only to the JRAD provision, which
is no longer available, but also to the immigration rule of lenity.
Id. That led the court to conclude that, “[w]hen 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.” Id. at 1160-
61 (citing Brand X, 545 U.S. at 984-85).
21
Rather than follow that line of reasoning, however, we
can assume without deciding that there is ambiguity at Chevron
step one, because, at step two, the agency’s construction is
unreasonable and therefore not entitled to deference.10
10
We are not persuaded that Brand X provides the
support that the Eleventh Circuit attributes to it for the
proposition that a court’s statutory interpretation pinned to the
rule of lenity is free of the strictures imposed by Chevron. The
Supreme Court in Brand X was emphatically reenforcing the
power of Chevron, and in doing so faulted a conclusion of the
Ninth Circuit indicating that a prior judicial construction of a
statute was binding on the agency charged with administering
the statute. See Brand X, 545 U.S. at 985 (“Before a judicial
construction of a statute, whether contained in a precedent or
not, may trump an agency’s, the court must hold that the statute
unambiguously requires the court's construction.”) The Brand
X Court referenced the rule of lenity only in passing, and then
did so in a way that, while not entirely clear, we take as
indicating that a court’s refusal to apply the rule of lenity
presupposes an unambiguous statute. Id. at 984. Indeed,
Brand X cites Chapman v. United States, 500 U.S. 453 (1991),
which emphasizes that the rule of lenity “is not applicable
unless there is a ‘grievous ambiguity or uncertainty in the
language and structure of the Act[.]’” Id. at 463 (citation
omitted). Whether the rule of lenity or Chevron deference
applies first to resolve ambiguity is an arguable issue, but we
decline to address it in dicta here. See Esquivel-Quintana v.
Sessions, 137 S. Ct. 1562, 1572 (2017) (declining to “resolve
whether the rule of lenity or Chevron receives priority”);
Cazun v. Att’y Gen., 856 F.3d 249, 256 n.14 (3d Cir. 2017)
(“[W]e have never found that [the rule of lenity] clarifies an
ambiguous statute ... such that it does away with the need to
22
2. Chevron Step Two
At step two, we determine whether the BIA’s
conclusion “is based on a permissible construction of the
statute.” Yusupov, 518 F.3d at 198 (quoting Chevron, U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984)).
A permissible construction is one that is reasonable. Id. We
do not ask whether the BIA’s statutory interpretation is the best
possible, but instead “inquire only whether [the agency] made
‘a reasonable policy choice’ in reaching its interpretation.”
Mejia-Castanon, 931 F.3d at 235-36 (citations omitted).
Importantly, deference is not owed to an agency decision that
lacks reasoning. See Christ the King Manor, Inc. v. Sec’y U.S.
Dep’t of Health & Human Servs., 730 F.3d 291, 314 (3d Cir.
2013) (holding agency action was arbitrary and capricious
“because we cannot discern from the record a reasoned basis
for the agency’s decision”); Robles-Urrea v. Holder, 678 F.3d
702, 709-10 (9th Cir. 2012) (declining to defer to the BIA at
Chevron step two because it “entirely fails to explain why” its
interpretation is reasonable); TNA Merch. Projects, Inc. v.
F.E.R.C., 616 F.3d 588, 593 (D.C. Cir. 2010) (“[A]lthough we
will defer to a reasonable definition by the [Federal Energy
Regulatory] Commission, we cannot defer to one that is
unexplained.”).
Recall that, in Singh’s case, the BIA did not explain its
interpretation of the removal provision. It was content to cite
its earlier decisions in Matter of Rossi, 11 I. & N. Dec. 514
(BIA 1966), and Matter of Gonzalez-Muro, 24 I. & N. Dec.
proceed to Chevron’s second step”). Hence our decision to
assume without deciding that there is ambiguity in the
aggravated felony provision.
23
472 (BIA 2008), and to assert that “[t]he Supreme Court’s
concerns in Costello centered around the alien’s ability to
seek” JRAD relief. (A.R. at 4.) But Rossi and Gonzalez-Muro
do not adequately explain why Costello was not controlling in
those cases – or why Eichenlaub was. They assert, without
discussion, that Costello was primarily concerned with the
now-defunct JRAD provision, and they ignore entirely the
careful textual analysis the Supreme Court engaged in while
distinguishing Eichenlaub. See Rossi, 11 I. & N. Dec. 514,
515-16 (BIA 1966) (“[W]e are satisfied that [Costello] was, in
fact, primarily predicated on the provisions of section 241(b)
and the fact that Costello, being a naturalized citizen at the time
of his convictions, was deprived of any opportunity of
requesting the sentencing court to recommend against his
deportation.”); Gonzalez-Muro, 24 I. & N. Dec. 472, 473 (BIA
2008) (citing Rossi’s statement that Costello was “primarily
predicated” on the availability of the JRAD provision and
“find[ing] the same to be true in this case, … [so]
that Costello is also not controlling here”).11
The government reprises that approach in this case. It
argues that the BIA’s interpretation of the aggravated felony
provision was reasonable because Costello’s holding relied on
the availability of JRAD relief, which was repealed in 1990 and
therefore unavailable to Singh. The problem with both the
11
The BIA also noted in Gonzalez-Muro that the
deportee had committed crimes when he was a lawful
permanent resident, though he became a naturalized citizen
before he was convicted, and that was another basis on which
to distinguish Costello. 24 I. & N. Dec. 472, 473-74 (BIA
2008). But that is irrelevant in Singh’s case, as he was a
naturalized citizen at the time of his crimes.
24
BIA’s analysis and the government’s argument is that Rossi
didn’t give any reason for its holding except a bare assertion.
See 11 I. & N. Dec. 514, 515-16 (BIA 1966) (saying, “[a]fter
careful analysis, … we are satisfied” etc.). Without
independent analysis of the removal provision at issue there,
Rossi simply stated in a conclusory fashion that the JRAD
provision was the centerpiece of Costello and that the case then
before it could “[]not be distinguished from” Eichenlaub so
removal was proper. Id.The BIA is free at any time to try to distinguish Costello.
What it is not free to do is to declare without analysis what
Costello was “primarily predicated on” and then to embrace
Eichenlaub without any reasoning. Rossi, 11 I. & N. Dec. at
515. In Rossi, the BIA should have engaged in its own
interpretation of the pertinent deportation provision, just as in
Singh’s appeal it should have engaged in its own interpretation
of the aggravated felony provision. Moreover, in Rossi, in
Gonzalez-Muro, and now in this case, it has consistently failed
to recognize that Costello distinguished Eichenlaub’s holding
in material ways, such as the espionage deportability
provision’s use of a past tense verb and a specific time
limitation, and specific legislative history providing more
guidance for the Court than the “generalized” legislative
purpose of broadening deportation of criminal aliens.12
12
The government attempts to liken the Eichenlaub
statute’s legislative purpose to that of the aggravated felony
provision by citing the Illegal Immigration Reform and
Immigrant Responsibility Act (the “Act”), which amended the
aggravated felony definition in order to “increase the severity
of the consequences for aliens convicted of crimes.”
(Answering Br. at 35 (quoting Matter of Rodriguez-Rodriguez,
25
Costello, 376 U.S. at 124, 126. As for the aggravated felony
provision at issue here, it does not use the phrase “all aliens
who … have been … convicted” and does not provide a
specific time limitation for convictions like the espionage
provision in Eichenlaub, nor does its legislative history
implicate far-reaching national security concerns. See id. at
123-25. The BIA’s implicit conclusion that the aggravated
felony provision could not be distinguished from the statute at
issue in Eichenlaub is, like its explicit rejection of Costello, an
ipse dixit, not a reasoned decision.
22 I. & N. Dec. 991, 994 (BIA 1999)).) That purpose is nearly
identical to the purpose that the Costello Court found
“generalized” and unhelpful. Costello, 376 U.S. at 125-26.
The government also argues that the Act’s amendment
to the aggravated felony definition in 8 U.S.C. § 1101(a)(43),
which “shall apply to actions taken on or after the date of the
enactment of this Act, regardless of when the conviction
occurred[,]” somehow indicates that Congress intended the
aggravated felony provision of 8 U.S.C § 1227(a)(2)(A)(iii) to
include citizens at the time of conviction. (Answering Br. at
35-36 (quoting Pub. L. No. 104-208, 110 Stat. 3009-546).)
That argument fails because, had Congress sought to include
within the aggravated felony provision aliens who were
naturalized citizens at the time of conviction, it would have
amended the “any alien who is convicted” language in that
provision. But the Act did not amend the aggravated felony
provision or the definition of “alien” in 8 U.S.C. § 1101(a)(3).
See Hylton, 992 F.3d at 1161; Okpala v. Whitaker, 908 F.3d
965, 970 n.3 (5th Cir. 2018).
26
Without an independent analysis of the statutory text,
and with strong text-based arguments to the contrary, the
BIA’s decision in Singh’s case appears to be nothing more than
an unreasoned declaration of law based on earlier unreasoned
declarations. It is thus rightly seen as arbitrary.13 See Christ
the King Manor, Inc., 730 F.3d at 314 (holding that the
agency’s action was arbitrary and capricious because it did not
supply a “reasoned basis” for its decision). Accordingly, we
decline to defer to the BIA’s interpretation of the aggravated
felony provision.
C. Singh is not removable under the aggravated
felony provision.
Unconstrained by Chevron deference, we hold that,
since Singh was a naturalized citizen at the time of his
conviction, he is not removable under the aggravated felony
provision.14 As noted earlier, the language of that provision is
13
Citing Eichenlaub, the government attempts to
impute policy considerations to the BIA’s decisions by
explaining that Congress would not have intended “to permit
the removal of aliens who never naturalized, but prohibit the
removal of aliens who naturalized before their convictions[.]”
(Answering Br. at 38.) That rationale, however, was
undermined in Costello, in which the Court said that “it is not
at all certain” that the petitioner in Costello would have been
deportable if he had never acquired citizenship, as he could
have offered to plead guilty to a non-removable offense.
Costello, 376 U.S. at 130-31.
14
Our concurring colleague says that Singh is not
removable under the aggravated felony provision – nor under
27
any other deportation provision in 8 U.S.C. § 1227(a) –
because he was never “admitted” within the meaning of 8
U.S.C. § 1101(a)(13)(A) (defining admission as “the lawful
entry of the alien into the United States after inspection and
authorization by an immigration officer”). We agree with
many of our colleague’s statements: The word “entry” focuses
on “the physical act of stepping into the United States[,]” and
“‘admission’ occurs at the port of entry after inspection[.]”
(Concur. Op. at 6, 12.) Those statements establish that Singh
was admitted, and we need not labor further to arrive at that
conclusion.
Singh was admitted in 1991; that is, he physically
entered the United States through inspection and authorization
by immigration authorities, as admission is defined under the
current statutory scheme. Our colleague’s argument to the
contrary relies on the definition of “entry” in an outdated
version of the statute, rather than focusing on the definition of
“admitted” in the current version. We are bound, however, to
apply the law applicable at the time of Singh’s removal
proceedings. See Luntungan v. Att’y Gen., 449 F.3d 551, 556
(3d Cir. 2006) (explaining that the older version of the INA
applies to aliens whose exclusion or deportation proceedings
began before April 1, 1997). (A.R. at 570-73 (providing notice
to Singh in 2019 to initiate removal proceedings under the
aggravated felony provision).) And even if we did turn to the
old definition of “entry,” Singh would still have been admitted
within the meaning of 8 U.S.C. § 1101(a)(13)(A) because he
was “free to ... go at large and mix with the general
population.” Yang v. Maugans, 68 F.3d 1540, 1543, 1550 (3d
Cir. 1995)
By presenting himself for inspection instead of sneaking
across the border without detection, he was “admitted” for
28
akin to the statutory language examined in Costello, and a
sound interpretation of it permits removal of only those
individuals who were aliens at the time they were convicted by
a judge or jury. See 8 U.S.C. § 1227(a)(2)(A)(iii).
purposes of the aggravated felony provision. See Mauricio-
Vasquez v. Whitaker, 910 F.3d 134, 136 (4th Cir. 2018)
(“Under the Board’s precedent, a noncitizen is ‘admitted’ to
the United States for purposes of the INA when she enters with
‘procedural regularity’ by physically presenting herself at a
port of entry for inspection and questioning by an immigration
official. ... [P]rocedural regularity doesn’t require entry on a
particular visa or status.” (citing Matter of Quilantan, 25 I. &
N. Dec. 285, 293 (B.I.A. 2010))). Singh’s entry was
procedurally regular regardless of his possession, or lack
thereof, of any valid entry or identity documents. We have said
that “[a]dmission is an occurrence, defined in wholly factual
and procedural terms: An individual who presents himself at
an immigration checkpoint, undergoes a procedurally regular
inspection, and is given permission to enter has been admitted,
regardless of whether he had any underlying legal right to do
so.” Sanchez v. Sec’y U.S. Dep’t of Homeland Sec., 967 F.3d
242, 250 (3d Cir. 2020) (quoting Gomez v. Lynch, 831 F.3d
652, 658 (5th Cir. 2016)), aff’d sub nom. Sanchez v. Mayorkas,
141 S. Ct. 1809 (2021). While we take our colleague’s point
that skipping bail is not the same as having a legal right to stay
in the country, Singh was given permission to enter for a
limited time and purpose, i.e., for the purpose of adjudicating
whether he should be excluded and hence sent back out of the
country. So we agree with the government and Singh that he
was “admitted” in the sense contemplated by § 1227(a).
29
To summarize, Congress used a present tense “to be”
verb plus “convicted” in the aggravated felony provision,
indicating that the individual facing removal must have been
an alien at the time of conviction. Id. (permitting removal for
“[a]ny alien who is convicted of an aggravated felony at any
time after admission”). In contrast, as the Costello Court
explained, a past tense verb, such as that in the statute at issue
in Eichenlaub, indicates that the individual need not have been
an alien at the time of conviction to fit within the terms of the
statute. Costello, 376 U.S. at 123. And because Congress
chose the past tense form of the verb in parallel deportation
provisions, we may infer that Congress intended to provide for
different meanings. See 8 U.S.C. § 1227(a)(2)(B)(i)
(permitting deportation of any alien who “has been
convicted...”) (emphasis added); Russello, 464 U.S. at 23. The
text of the provision and inferences drawn from surrounding
provisions of the INA prompt the conclusion that Singh may
not be removed under the aggravated felony provision.
We reiterate that deportation is a “drastic measure[,]”
requiring us to resolve doubts in favor of the party facing
removal from the United States. Padilla, 559 U.S. at 360(quoting Fong Haw Tan, 333 U.S. at 10).15 “[S]ince the stakes
15
Singh argues that an interpretation of the aggravated
felony provision allowing the removal of only those
individuals who were aliens at the time of conviction best
comports with constitutional concerns. In Padilla v. Kentucky,
the Supreme Court held that failure to advise a non-citizen
criminal defendant that pleading guilty may result in removal
constitutes ineffective assistance of counsel and violates the
Sixth Amendment right to counsel. 559 U.S. 356, 364 (2010).
Singh argues that Matter of Rossi and Matter of Gonzalez-
30
are considerable for the individual, we will not assume that
Congress meant to trench on his freedom beyond that which is
required by the narrowest of several possible meanings of the
words used.” Costello, 376 U.S. at 128 (quoting Fong Haw
Tan, 333 U.S. at 10). So, beyond the text of the aggravated
Muro allow those who were citizens at the time of conviction
to be subsequently removed on the basis of their subsequent
denaturalization and their convictions, without receiving the
protection of the right to be warned of the immigration
consequences of a guilty plea. That outcome, he says, conflicts
with his Sixth Amendment right to counsel as described in
Padilla, as well as his Fifth Amendment right to due process.
We do not have to decide whether there is irreconcilable
tension between Padilla on the one hand and Rossi and
Gonzalez-Muro on the other, because Padilla expressly applies
only to noncitizens pleading guilty, which Singh was not. See
Padilla, 559 U.S. at 364 (“The importance of accurate legal
advice for noncitizens accused of crimes has never been more
important.” (emphasis added)). It is true, however, that
Singh’s case raises a constitutional concern in the spirit of
Padilla: he is facing removal, “a particularly severe penalty[,]”
for his conviction from a guilty plea, a guilty plea he made
without notice of the immigration consequences that could
flow from the plea. Id. at 365 (citation and internal quotation
marks omitted). The government contends that “Singh should
have known that, should his fraud be uncovered, he could be
found removable.” (Answering Br. at 54.) But we do not
generally premise procedural protections on what a criminal
defendant “should” know. It is precisely because many
criminal defendants do not know the consequences of pleading
guilty that we require detailed notice of the resulting penalties.
31
felony provision and the inferences that can be drawn from
surrounding provisions of the INA, longstanding
jurisprudential concerns surrounding the severity of removal
provide additional support for the conclusion that Singh is not
removable as charged.
Finally, the government cannot succeed on the theory
that Singh is removable because his denaturalization springs
back in time to the date he fraudulently obtained his
citizenship. The Supreme Court rejected that very argument
more than half a century ago in Costello, 376 U.S. at 129-32,and its decision is controlling. See Hylton, 992 F.3d at 1161
(“Because only the Supreme Court may overturn its
precedents, Costello controls our resolution of this issue.”);
Okpala v. Whitaker, 908 F.3d 965, 970 (5th Cir. 2018)
(“Costello is not materially distinguishable from the facts at
hand and thus controls here.”). Having chosen to pursue
Singh’s removal solely on the basis of the aggravated felony
provision,16 the government cannot salvage its case now by
trying to say that he never was a citizen to begin with and is
16
As noted earlier, supra n.4, there was an alternative
charge of removal against Singh based on his convictions for
committing crimes involving controlled substances. Why the
government chose not to pursue that charge is not clear in the
record. Nothing in our decision today should be taken as
indicating a lack of appreciation for the seriousness of such
offenses or as implying that immigration consequences should
not follow from them.
32
therefore removable regardless of how we interpret that
provision.17
III. CONCLUSION
For the foregoing reasons, we will grant Singh’s petition
for review, vacate the BIA’s order, and remand for further
proceedings consistent with this opinion.
17
Because we agree with Singh that he is not removable
under the aggravated felony provision, we do not reach his
other argument that his conviction cannot qualify as a
“conviction” under 8 U.S.C. § 1101(a)(48)(A) because that
section defines “conviction” in terms of formal judgment of
guilt entered against an alien.
33
MATEY, Circuit Judge, concurring in the judgment.
I join the Majority’s conclusion that the aggravated
felony provision of the Immigration and Nationality Act
(“INA”) does not apply to Singh for a different reason: INA
§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), addresses
aliens convicted “after admission,” and Singh has never been
“admitted.” The INA defines “‘admission’ and ‘admitted’ [as],
with respect to an alien, the lawful entry of the alien into the
United States after inspection and authorization by an
immigration officer.” INA § 101(a)(13)(A), 8 U.S.C.
§ 1101(a)(13)(A). Singh is present in the United States, but not
through a lawful entry after inspection and authorization. As a
result, the aggravated felony provision is inapplicable, and his
petition must be granted.1
1
Although Singh did not raise the issue, the parties
briefed this question at the Court’s request. Kamen v. Kemper
Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (“When an issue or
claim is properly before the court, the court is not limited to the
particular legal theories advanced by the parties, but rather
retains the independent power to identify and apply the proper
construction of governing law.”); Haybarger v. Lawrence
Cnty. Adult Prob. & Parole, 667 F.3d 408, 413 n.3 (3d Cir.
2012) (“[W]e retain the independent power to identify and
apply the proper construction of governing law. . . . We thus
may consider an issue antecedent to . . . and ultimately
dispositive of the dispute before us, even an issue the parties
failed to identify and brief.” (cleaned up)).
I. BACKGROUND
To understand why, it is necessary to recount the tale of
two Singhs. It began in 1991, when “Davinder Singh” (Singh
1) arrived in the United States at the San Francisco
International Airport. (A.R at 259–60, 496.) Lacking any travel
documents, authorities placed Davinder into custody at the
airport and started exclusion proceedings. After posting a
bond, Davinder left confinement and vanished. An
Immigration Judge later ordered Davinder excluded.
But he never left. One month later, Singh filed an
asylum application under the name “Baljinder Singh” (Singh
2). (A.R. at 260, 496.) With the Baljinder application pending,
Singh married a U.S. citizen and applied for an adjustment of
status to lawful permanent resident (“LPR”). His adjustment
application falsely claimed entry into the United States without
inspection in 1991, failed to disclose that he presented himself
as Davinder at the port of entry and, of course, omitted the
exclusion proceedings and the order of removal. The fraud
worked. In 1998, Baljinder received LPR status, and in 2006,
Baljinder Singh became a naturalized citizen. Singh’s multiple
identities remained undiscovered even after his convictions for
drug crimes. But the tale of two Singhs finally ended in 2018
when the Government figured out that Singh 1 was probably
Singh 2, and a court revoked his naturalization for his
fraudulent LPR application.2
2
In the naturalization case, the District Court
characterized Davinder and Baljinder as the same person. Still,
as there are no facts in the record confirming Singh’s true
identity, I will call petitioner simply “Singh.”
2
Relying on Singh’s drug convictions, the Government
started removal proceedings under the aggravated felony
provision in INA § 237(a)(2)(A)(iii), 8 U.S.C
§ 1227(a)(2)(A)(iii). All agree that provision applies only if
Singh was “admitted.” The majority and the parties believe
Singh meets that prerequisite. I am not persuaded.
The majority concludes that Singh 1 was admitted when
released on bond pending his exclusion proceedings. (Maj. Op.
Part II.C n.14.) But “entry” under the INA does not include
conditional release. Singh and the Government argue Singh 2
was admitted when his status was adjusted to LPR. But an
adjustment of status is not the physical act of entering the
country, as we have repeatedly recognized and the Supreme
Court recently confirmed. All of which means neither Singh 1
nor Singh 2 was ever admitted into the United States within the
ordinary meaning of the INA.
II. DISCUSSION
I “begin and end our inquiry with the text” of the law.
Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002,
1010 (2017). Following the course repeatedly recommended
by the Supreme Court, I use the “fundamental canon of
statutory construction” that “words generally should be
interpreted as taking their ordinary, contemporary, common
meaning . . . at the time Congress enacted the statute.” Wis.
Cent. Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018)
(quoting Perrin v. United States, 444 U.S. 37, 42 (1979))
(alteration in original) (cleaned up). I rely on the “toolkit”
containing “all the standard tools of interpretation” needed to
consider the text, structure, and history of the law. Kisor v.
Wilkie, 139 S. Ct. 2400, 2414–15 (2019); see also Antonin
3
Scalia, Judicial Deference to Administrative Interpretations of
Law, 1989 Duke L.J. 511, 515 (1989). Doing so leads to “‘a
conclusion about the best interpretation,’ thereby resolving any
perceived ambiguity.” Shular v. United States, 140 S. Ct. 779,
788 (2020) (Kavanaugh, J., concurring) (quoting Kisor, 139 S.
Ct. at 2448 (Kavanaugh, J., concurring in the judgment)). Here,
the best meaning of “admission” does not encompass Singh’s
two-step dance.
A. The INA’s Definition of “Admission”
As noted, the INA defines “[t]he terms ‘admission’ and
‘admitted’ [to] mean, with respect to an alien, the lawful entry
of the alien into the United States after inspection and
authorization by an immigration officer.” INA
§ 101(a)(13)(A), 8 U.S.C. § 1101(a)(13)(A). See Illegal
Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”), Pub. L. No. 104-208, § 301(a), 110 Stat. 3009–
575 (1996) (defining “admission”). Each component of this
definition points towards admission as requiring a physical act.
Start with “lawful entry.” Before IIRIRA, the INA
defined “entry” as “any coming of an alien into the United
States, from a foreign port or place or from an outlying
possession, whether voluntarily or otherwise[.]” INA
§ 101(a)(13) (1988); 8 U.S.C. § 1101(a)(13) (1988). Although
IIRIRA replaced “entry” with “admission,”3 “entry” remains a
3
Before IIRIRA, deportability hinged on the concept of
“entry” rather than “admission,” an important distinction
because it determined whether an alien faced exclusion or
deportation. See Rosas-Ramirez, 22 I. & N. Dec. 616, 620 (BIA
4
“term of art requiring not only physical presence in the United
States but also freedom from official restraint.” United States
v. Argueta-Rosales, 819 F.3d 1149, 1158 (9th Cir. 2016).
“[T]his principle was established more than a century ago,” id.(compiling cases), and its “settled meaning” remains
applicable today as the INA “still makes numerous references
to ‘entry,’ including in the new definition of ‘admission’
itself.” United States v. Gaspar-Miguel, 947 F.3d 632, 634
(10th Cir. 2020); see also Neder v. United States, 527 U.S. 1,
21 (1999) (“Where Congress uses terms that have accumulated
settled meaning under the common law, a court must infer,
unless the statute otherwise dictates, that Congress means to
incorporate the established meaning of these terms.” (cleaned
up)).
The phrase “into the United States” confirms that
admission requires a physical entrance. See The Chicago
Manual of Style ¶ 5.177 (17th ed. 2017) (“Prepositions signal
1999) (persons without an “entry” into the United States were
charged as excludable, while those who had made an “entry”
were deportable); 8 U.S.C. § 1182(a) (1988) (former grounds
for exclusion); id. § 1251(a) (1988) (former grounds for
deportation). The difference mattered, because those who
followed the rules and presented themselves for inspection at
the border did not enjoy the substantive and procedural rights
that aliens who entered illegally by evading inspection did in
deportation proceedings. See Martinez v. Att’y Gen., 693 F.3d
408, 412 n.5 (3d Cir. 2012); Landon v. Plasencia, 459 U.S. 21,
26–27 (1982). All of which, of course, encouraged flouting, not
following, the law. IIRIRA sought to remedy this imbalance by
creating a uniform removal proceeding. See Martinez, 693 F.3d
at 413 n.5.
5
many kinds of relationships. For example, a preposition may
express a spatial relationship {to} {from} {out of} {into}”).
See also Taveras v. Att’y Gen., 731 F.3d 281, 290 (3d Cir.
2013) (“The words ‘entry’ and ‘into’ plainly indicate that
‘admission’ involves physical entrance into the country . . . .”).
Taken together, the INA did not create a logical or legal fiction
about entry. Its focus is on the physical act of stepping into the
United States.
Nor does “inspection” alter this reading. The INA
explains it is a requirement that “[a]ll aliens . . . who are
applicants for admission[4] or otherwise seeking admission or
readmission to . . . the United States shall be inspected by
immigration officers.” INA § 235(a)(3), 8 U.S.C. § 1225(a)(3).
Regulations confirm that a “lawful entry” “after inspection and
authorization by an immigration officer,” 8 U.S.C.
4
An “applicant for admission” is “[a]n alien present in
the United States who has not been admitted or who arrives in
the United States[.]” INA § 235(a)(1), 8 U.S.C. § 1225(a)(1)
(emphasis added). An “application for admission” is “the
application for admission into the United States[.]” INA
§ 101(a)(4), 8 U.S.C. § 1101(a)(4) (emphasis added). In other
words, reading these provisions together with INA § 235(a)(3),
any alien who arrives or is present in the United States without
the entrance and inspection needed for “admission” becomes
an “applicant for admission” requiring inspection before being
granted entry “into” the United States.
6
§ 1101(a)(13)(A), occurs “in person . . . at a U.S. port-of-
entry.” 8 C.F.R. § 235.1(a).
B. Singh 1 Was Never Admitted
Recall the tale of Singh 1. After arriving at San
Francisco International Airport in 1991 without
documentation, he was detained, charged as excludable under
INA § 212(a)(7)(A)(i)(I), placed in exclusion proceedings, and
released from confinement on bond. When he failed to appear
at his January 7, 1992 hearing, he was ordered excluded and
deported in absentia. Nothing in this sequence constituted an
“admission” because at no point was Singh permitted “lawful
entry” into the United States. INA § 101(a)(13)(A), 8 U.S.C.
§ 1101(a)(13)(A).
1. Singh 1’s Arrival Led to Immediate and
Continuous Detention
Aliens trying to enter the United States, lawfully or not,
are seeking “initial entry.” Osorio-Martinez v. Att’y Gen.,
singh, 167 & n.11 (3d Cir. 2018) (quoting Castro v. Dep’t of
Homeland Sec., 835 F.3d 422, 449 n.31 (3d Cir. 2016)). Singh,
upon arrival, had not “accomplish[ed] an ‘entry’ by crossing
the national boundary in transit or even by arrival at a port
[because he was] detained there pending formal disposition of
[his] request[] for admission.” United States v. Vasilatos, 209
F.2d 195, 197 (3d Cir. 1954). That is because Singh was never
free from official restraint at “[t]he pre-inspection area at the .
. . port of entry,” United States v. Vazquez-Hernandez, 849
F.3d 1219, 1227 (9th Cir. 2017), nor while he was detained.
See Matter of Lin, 18 I. & N. Dec. 219, 222 (BIA 1982) (alien
awaiting exclusion proceeding in detention had not “entered”
7
the United States under the INA, even after escape); Argueta-
Rosales, 819 F.3d at 1155. At this point, Singh had not entered
the country.
2. Singh 1’s Release on Bond
What about Singh’s release on bond? The majority says
this was an admission because Singh was given “permission to
enter for a limited time and purpose, i.e., for the purpose of
adjudicating” his exclusion. (Maj. Op. at Part II.C n.14.) But
that reading contradicts the INA’s “well-established” meaning
of “entry.” Yang v. Maugans, 68 F.3d 1540, 1545 (3d Cir.
1995).
Bond has long been understood as a “transfer [of]
custody of the defendant from the officers of the law to the
surety on the bail bond, whose undertaking is to redeliver the
defendant to legal custody at the time and place appointed in
the bond.” Bail Bond, Black’s Law Dictionary (11th ed. 2019)
(definition of “bail bond” dating to 17th century). In the
immigration context, an “immigration delivery bond functions
as a ‘bail bond[.]’” United States v. Minn. Tr. Co., 59 F.3d 87,
89 & n.2 (8th Cir. 1995) (citing Bail Bond, Black’s Law
Dictionary 140 (6th ed. 1990)). That means a “person brought
into the United States by the authorities, and then released on
bond, never entered the United States. His case is like that of
one who had been stopped at the border and kept there all the
time.” United States ex rel. Ling Yee Suey v. Spar, 149 F.2d
881, 883 (2d Cir. 1945); see also Kaplan v. Tod, 267 U.S. 228,
230 (1925) (alien awaiting disposition of application for
admission whose “prison bounds were enlarged by committing
her to the custody” of caretakers for nine years “was still in
theory of law at the boundary line and had gained no foothold
8
in the United States”). Release on bond does not render the
alien free from official restraint, and so fails to satisfy that
“well-established” prerequisite to accomplishing a lawful
entry. Yang, 68 F.3d at 1545.
Congress codified this concept in the INA. The INA
gives the Attorney General discretion to “parole” into the
United States aliens who are “applying for admission,” but
“such parole of such alien shall not be regarded as an admission
of the alien[.]” 8 U.S.C. § 1182(d)(5)(A); see id.
§ 1182(d)(5)(A) (1988) (same language); INA, Pub. L. No. 82-
414, § 212, 66 Stat. 163, 188 (1952) (same language) (codified
at 8 U.S.C. § 1182(d)(5) (1952)). Once “the purposes of such
parole” have been served, the alien “shall forthwith return or
be returned to the custody from which he was paroled” and “be
dealt with in the same manner as that of any other applicant for
admission to the United States.” 8 U.S.C. § 1182(d)(5)(A); id.
§ 1182(d)(5)(A) (1988) (same); id. § 1182(d)(5) (1952) (same);
see also Chi Thon Ngo v. INS, 192 F.3d 390, 392 n.1 (3d Cir.
1999).
Bond and parole serve the same purpose under the
INA. An alien’s temporary release on parole is, like a release
5
on bond, “simply a device through which needless confinement
5
For example, resident aliens arrested can be released
either on bond or conditional parole pending their removal
hearing. Jennings v. Rodriguez, 138 S. Ct. 830, 847 (2018)
(citing 8 U.S.C. § 1226(a)). The Attorney General may revoke
either basis for temporary release and return the alien to
custody. 8 U.S.C. § 1226(b); see also 8 U.S.C. § 1252(a)(1)
(Supp. 1989) (predecessor provision to § 1226(a)); INA, Pub.
L. No. 82-414, § 242(a), 66 Stat. 163, 208–09 (1952).
9
is avoided while [exclusion] proceedings are conducted” that
never “place[s] her legally within the United States.” Leng May
Ma v. Barber, 357 U.S. 185, 190 (1958) (cleaned up); see also
United States ex rel. Tom We Shung v. Murff, 176 F. Supp. 253,
256 (S.D.N.Y. 1959) (holding that alien paroled and released
on bond pending exclusion proceedings was “still, in theory of
law, ‘on the threshold of initial entry.’” (quoting Shaughnessy
v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953))), aff’d
sub nom., United States ex rel. We Shung v. Esperdy, 274 F.2d
667 (2d Cir. 1960) (per curiam).
And “[a]n alien paroled into the United States has not
‘entered’ the United States for immigration purposes.” Correa
v. Thornburgh, 901 F.2d 1166, 1169 n.3 (2d Cir. 1990) (citing
8 U.S.C. § 1182(d)(5)(A) and collecting cases); see also Vitale
v. INS, 463 F.2d 579, 582 (7th Cir. 1972) (holding that, for the
period between inspection at the airport to alien’s exclusion
hearing, “[t]he placing of Vitale in the custody of Alitalia
Airlines constituted parole; [so] he did not effect an entry into
the United States”). In other words, “those seeking ‘admission’
and trying to avoid ‘exclusion’” may have been “within our
territory (or at its border), but the law treated them as though
they had never entered the United States at all.” Sale v. Haitian
Centers Council, Inc., 509 U.S. 155, 175 (1993) (emphasis
added). Put it all together and Singh’s conditional, temporary
release on bond did not accomplish an entry.
Nor did Singh enter the country by skipping out on his
bond. See Siu Fung Luk v. Rosenberg, 409 F.2d 555, 558–59
(9th Cir. 1969) (alien in exclusion proceedings whose parole
was revoked but did not have to appear for two years had still
not made an entry); Mariscal-Sandoval v. Ashcroft, 370 F.3d
851, 855–56 (9th Cir. 2004) (expiration of parole for two-
10
month period did not establish an entry); Matter of Lin, 18 I. &
N. Dec. 219, 222 (BIA 1982) (escaping border detention is not
an entry). Nothing else in Singh 1’s saga could be treated as
entry and admission.
3. Singh 1’s 1992 Exclusion
Any lingering doubt is erased by the 1992 order of
exclusion. Remember that before Congress amended the INA
in 1996, exclusion proceedings determined whether aliens like
Singh would “be allowed to enter” the United States. 8 U.S.C.
§ 1226(a) (1988); id. § 1226(a) (1994). Aliens who had entered
the country, by contrast, followed a separate “expulsion”
procedure “commonly referred to as deportation proceedings.”
Leng May Ma, 357 U.S. at 187; 8 U.S.C. §§ 1251(a), 1252(b)
(1988); Landon v. Plasencia, 459 U.S. 21, 28 (1982)
(explaining that “only ‘entering’ aliens are subject to
exclusion” (citation omitted)); see also Yang, 68 F.3d at 1547.
Singh 1’s exclusion means he was not “allowed to enter” the
United States, 8 U.S.C. § 1226(a) (1988), and that means he
never gained “lawful entry . . . into the United States after
inspection and authorization by an immigration officer.” INA
§ 101(a)(13)(A), 8 U.S.C. § 1101(a)(3)(A) (emphasis added).
C. Singh 2 Was Never Admitted
Singh and the Government argue that Singh 2’s status
adjustment to LPR in 1998 was his admission. But that defies
11
the text and structure of the INA as consistently interpreted by
this Court and recently affirmed by the Supreme Court.
1. Singh 2’s Adjustment of Status Was Not an
Admission
“Lawful status and admission . . . are distinct concepts
in immigration law: Establishing one does not necessarily
establish the other.” Sanchez v. Mayorkas, 141 S. Ct. 1809,
1813 (2021) (citing Sanchez v. Sec’y Dep’t of Homeland Sec.,
967 F.3d 242, 246 (3d Cir. 2020)). An “admission” under INA
§ 101(a)(13)(A) refers to an “event or action,” while being
“lawfully admitted for permanent residence” under INA
§ 101(a)(20) refers to “an immigration status.” Hanif v. Att’y
Gen., 694 F.3d 479, 485 (3d Cir. 2012); see also Gomez v.
Lynch, 831 F.3d 652, 658 (5th Cir. 2016) (distinguishing
“admission,” which is “an occurrence” where an individual
“presents himself at an immigration checkpoint” and gains
entry, with status, which “describes [an individual’s] type of
permission to be present in the United States”). While an
“admission” occurs at the port of entry after inspection,
adjustment of status is “a procedure that is structured to take
place entirely within the United States.” Taveras, 731 F.3d at
290; see also INA § 245(a), 8 U.S.C. § 1255(a) (provision
governing adjustment of status to lawful permanent resident);
8 C.F.R. § 245 (procedure for adjusting status). It “allow[s] an
alien who is already physically located in the United
States . . . to obtain lawful permanent resident status while
remaining within the United States without having to go abroad
and obtain an immigrant visa at a United States consulate.”
Taveras, 731 F.3d at 289 (citing Malik v. Att’y Gen., 659 F.3d
253, 257 (3d Cir. 2011) (describing status adjustment by
consular processing)). “Admission” is a prerequisite to
12
obtaining adjustment of status under 8 U.S.C. § 1255(a). See
Sanchez, 141 S. Ct. at 1815 (“Section 1255 generally requires
a lawful admission before a person can obtain LPR status.”).6
Given the INA’s clear distinction between status
adjustment and admission, “it does not follow that a grant of
lawful status is an admission.” Sanchez, 967 F.3d at 246. The
Supreme Court unanimously agrees: a grant of lawful status
“does not come with a ticket of admission” nor does it
“constructively ‘admit’” someone. Sanchez, 141 S. Ct. at 1813.
So we have repeatedly rejected the argument that admission
and adjustment are the same. Hanif, 694 F.3d at 484–85
(rejecting Government’s argument); Sanchez, 967 F.3d at 245
(rejecting petitioner’s).7
6
A few narrow exceptions exist. See 8 U.S.C. § 1255(g)
(treating certain special immigrants who were never
“admitted” into the United States as “paroled” for purposes of
status adjustment under § 1255(a)); id. § 1255(i) (permitting
adjustment of status for aliens who entered the United States
without inspection in some cases). Congress occasionally
provides others. See Immigration Reform and Control Act of
1986, Pub. L. 99-603, 100 Stat. 3359, 3394 (codified at 8
U.S.C. § 1255a) (temporarily permitting adjustment to LPR
status for aliens who unlawfully entered the United States
before January 1, 1982).
7
As have the Fourth, Fifth, and Eleventh Circuits. See
Bracamontes v. Holder, 675 F.3d 380, 385–86 (4th Cir. 2012)
(“admission” and “admitted” “both contemplate a physical
crossing of the border following the sanction and approval of
United States authorities” but “simply does not include an
adjustment of status”); Martinez v. Mukasey, 519 F.3d 532, 544
13
Undeterred and oddly united,8 the Government and
Singh persist in asserting that adjustment of status qualifies as
an “admission,” pointing to our decision in Martinez v.
Attorney General, 693 F.3d 408 (3d Cir. 2012). It is a new twist
(5th Cir. 2008) (“‘admission’ is the lawful entry of an alien
after inspection, something quite different, obviously, from
post-entry adjustment of status”); Marques v. Lynch, 834 F.3d
549, 561 (5th Cir. 2016) (filing for adjustment of status to LPR
is not an application for admission); Lanier v. Att’y Gen., 631
F.3d 1363, 1366 (11th Cir. 2011) (the definition of “admitted”
in INA § 101(a)(13)(A) is “limited[] and does not encompass
a post-entry adjustment of status”); Ortiz-Bouchet v. Att’y
Gen., 714 F.3d 1353, 1356 (11th Cir. 2013) (per curiam)
(admission under INA § 212(a)(7)(A)(i)(I) does not include a
post-entry adjustment of status).
8
The Government’s argument that Singh’s adjustment
of status is an “admission” is curious because it conflicts with
its own policy. See 7 U.S. Citizenship and Immigr. Serv.,
Policy Manual, § 2.A.2 (Aug. 12, 2021),
https://www.uscis.gov/policy-manual/volume-7-part-b-
chapter-2 (“A noncitizen is admitted if the following
conditions are met: The noncitizen applied for admission as an
‘alien’ at a port of entry; and [a]n immigration officer inspected
the applicant for admission as an ‘alien’ and authorized him or
her to enter the United States in accordance with the procedures
for admission.” (citations omitted)). It also contradicts its
position before us in Sanchez, 967 F.3d at 245 (“According to
the Government, ‘lawful status’ does not qualify as an
‘admission’ because the concepts are distinct.”).
14
on the familiar arguments that we rejected in Hanif and
Sanchez,9 and equally unavailing.
In Martinez, the petitioner first entered the United States
without inspection and authorization but then left to adjust his
status at the United States consulate in Nicaragua. 693 F.3d at
409–410; see also Malik, 659 F.3d at 257 (recognizing that
aliens may obtain LPR status “through consular processing”
9
And it is an interpretation the BIA has adopted despite
acknowledging that it defies “the plain language of section
101(a)(13)(A)” and “has not generally been well received by
the courts of appeals, including the [] Third Circuit.” Matter of
Chavez-Alvarez, 26 I. & N. Dec. 274, 276–77 (BIA 2014). But
since “[w]e owe no deference to the agency’s interpretation of
these statutes,” Sanchez, 967 F.3d at 246 n.4, there is no reason
to defer to interpretations that are admittedly unmoored from
the text of the INA and contrary to Circuit precedent. See
Lanier, 631 F.3d at 1367 n.3 (finding no ambiguity in the use
of “admission” in INA § 212(h) and according no deference to
the BIA’s interpretation that admission includes a post-entry
adjustment of status). Despite the potentially unwelcome
results, Rosas-Ramirez, 22 I. & N. Dec. at 621, or seemingly
“absurd consequences” of the unambiguous text, Chavez-
Alvarez, 26 I. & N. Dec. at 276, “we cannot substitute our
judgment for that of Congress” to avoid the sometimes
“awkward” situations the law enables. Hanif, 694 F.3d at 487;
see also New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019)
(“[I]f judges could freely invest old statutory terms with new
meanings, we would risk amending legislation outside the
‘single, finely wrought and exhaustively considered,
procedure’ the Constitution commands.” (quoting INS v.
Chadha, 462 U.S. 919, 951 (1983))).
15
under 8 U.S.C. § 1201(a)). Upon his return to the United States,
he was “admitted following” the “inspection and authorization
by an immigration officer at the port of entry.” Martinez, 693
F.3d at 410, 413 n.6, 416 (citing 8 U.S.C. § 1101(a)(13)(A)).
Nothing in Martinez suggests that the petitioner’s adjustment
of status at the consulate constituted his admission. I decline to
read Martinez to say what it does not. And that leaves us where
we started: “bound to follow Congress’s definition in
§ 1101(a)(13)(A), which defines admission as the physical
event of entering the country.” Sanchez, 967 F.3d at 250 (citing
Taveras, 731 F.3d at 290). So Singh 2’s adjustment to LPR was
not an “admission.”
2. Singh 2’s Fraudulent Adjustment Is Not an
Admission
Even assuming a different reading of the INA, the
District Court’s finding that Singh obtained his adjustment
through fraud is the end of the road. “[A]n alien whose status
has been adjusted to LPR—but who is subsequently
determined to have obtained that status adjustment through
fraud—has not been ‘lawfully admitted for permanent
residence’ because the ‘alien is deemed, ab initio, never to
have obtained [LPR] status.’” Gallimore v. Att’y Gen., 619
F.3d 216, 223 (3d Cir. 2010) (quoting Koloamatangi, 23 I. &
N. Dec. 548, 551 (BIA 2003)). Even accepting the (false)
premise that adjustment is admission, Singh’s fraud eliminated
a lawful adjustment and cannot constitute admission.
III. CONCLUSION
Perhaps Singh’s tale is unusual. I can speculate that few
aliens seeking the privilege of life in the United States follow
16
Singh’s triple-play of criminality attempting an unlawful entry,
succeeding in a fraudulent adjustment, followed by a
conspiracy to distribute and possess with intent to distribute
heroin, MDMA, and marijuana. But Singh’s immigration
status is not uncommon and many aliens present in this country
have never been “admitted.” Like Singh, they are all
“applicants for admission,” INA § 235(a)(1), 8 U.S.C.
§ 1225(a)(1), and if they qualify as “inadmissible under [INA
§] 212[, 8 U.S.C. § 1182],” they are removable. See INA
§ 240(e)(2), 8 U.S.C. § 1229a(e)(2); see also 8 C.F.R.
§ 235.1(f)(2) (“An alien present in the United States who has
not been admitted or paroled . . . is subject to the provisions of
[INA §] 212[, 8 U.S.C. § 1182] . . . and to removal”). There are
many grounds for inadmissibility and removal under INA
§ 212, 8 U.S.C. § 1182, and the Executive Branch regularly
relies on those grounds for removal actions.
But for aliens who have been admitted, another section
of the INA governs their removability. “[I]n the case of an alien
admitted to the United States, . . . the alien is deportable under
[INA §] 237[, 8 U.S.C. § 1227].” INA § 240(e)(2)(B), 8 U.S.C.
§ 1229a(e)(2)(B). Section 237 does not apply to those who
have not been admitted. INA § 237(a), 8 U.S.C. § 1227(a)
(“Any alien . . . in and admitted to the United States shall . . . be
removed if the alien is within one or more of the following
classes of deportable aliens . . . .”). An elegant system or “King
Minos’s labyrinth in ancient Crete”? Marques v. Lynch, 834
F.3d 549, 558 (5th Cir. 2016) (quoting Lok v. INS, 548 F.2d 37,
38 (2d Cir. 1977)). That is not ours to answer. Nor, following
the lead of the Government, can we simply skip past Singh’s
brazen, but successful, sidesteps around the port of entry to
focus on his thick file of misconduct. One can question the
wisdom of creating a removability provision exclusive to those
17
who have been “admitted,” and the enforcement system that
adjusts the status of an alien who, it seems rather obvious,
barely tried to hide his past. But that only highlights the “perils
of substituting stories for statutes,” McGirt v. Oklahoma, 140
S. Ct. 2452, 2470 (2020), an expedience that might seem
attractive in the moment, but risks “upsetting reliance interests
in the settled meaning of a statute.” New Prime Inc. v. Oliveira,
139 S. Ct. 532, 539 (2019). Congress created a predicable
framework for the Executive to “faithfully execute[].” U.S.
Const. art. II, § 3. When the Executive veers from that
framework, it is this Court’s duty to correct course.
The Government wants to remove Singh under the
aggravated felony provision, which resides in INA § 237. For
that provision to apply, Singh must be admitted. But he never
was, so the Government’s chosen path is unavailable. For these
reasons, I concur only in the judgment granting Singh’s
petition.
18