IMMIGRATION LAW - DENATURALIZED CITIZEN CONVICTED OF SEVERAL HEROIN RELATED CRIMES IS NOT SUBJECT TO DEPORTATION - Okpala v. Whitaker.

• Author: Leoni, Jessica

IMMIGRATION LAW--DENATURALIZED CITIZEN CONVICTED OF SEVERAL HEROIN RELATED CRIMES IS NOT SUBJECT TO DEPORTATION--Okpala v. Whitaker, 908 F.3d 965 (5th Cir. 2018).

Under the general deportation statute, an alien is deportable if he is convicted of an aggravated felony after his legal entry into the United States. (1) Furthermore, where a person becomes a naturalized citizen based on untruthfulness and deceit during the naturalization process, naturalization may be rescinded. (2) In Okpala v. WhitakerS the United States Court of Appeals for the Fifth Circuit assessed whether a denaturalized citizen who had been convicted of heroin trafficking charges and fraudulent procurement of citizenship was subject to deportation under 8 U.S.C. [section] 1227(a)(2)(A)(iii). (4) The Court held that a denaturalized citizen was not susceptible to deportation when he or she is a naturalized citizen, and therefore not an alien, at the time of his or her felony-related convictions. (5)

The Petitioner, Okey Garry Okpala (Petitioner) is a Nigerian native who had obtained his certificate of naturalization in March of 1992. (6) In October of 1993, Petitioner faced multiple doner's criminal sentence, the Department of Homeland Security (DHS) reopened his immigration proceedings. (9) Upon application of collateral estoppel, the Board of Immigration Appeals (BIA) concluded that the facts of Petitioner's prior denaturalization proceeding were persuasive in any future deportation proceedings. (10)

The government determined that Petitioner's ab initio denaturalization subjected him to deportation under 8 U.S.C. [section] 1227. (11) Petitioner contended that at the time of his convictions he was not an alien within the meaning of 8 U.S.C. [section] 1227 and therefore could not be deported based on this statute. (12) He also argued that his due process rights had been violated because the court denied him the opportunity to defend himself against the BIA's use of the doctrine of collateral estoppel. (1) - (1) Ultimately,

Petitioner appealed the BIA's decision to the United States Court of Appeals for the Fifth Circuit, which granted his petition for review and vacated the deportation order. (14)

Historically, only its citizens and persons believed to pose no danger to the safety of the country were allowed to enter the United States. (15) Over time resident aliens gained limited rights, which included basic due process rights. (16) As resident aliens were afforded these rights, they also had to abide by the laws of the United States, just like every other individual that entered the country. (17) The Immigration and Nationality Act (INA) sets forth regulations to ensure the well-being of both Americans and immigrants. (18)

In 1790, the United States passed its first naturalization statute. (19) For as long as cases and statutes pertaining to naturalization have been around, a good moral character requirement has existed. (20) Cases involving the naturalization of persons in the United States have consistently analyzed the good moral character requirement. (21) The requirement was enacted to ensure that those who became naturalized United States citizens would not negatively impact or harm society. (22)

Due to the increasing amount of people that were procuring citizenship unlawfully in the late 1800s and early 1900s, Congress passed legislation that allowed for denaturalization proceedings. (211) Illegal procurement of citizenship occurs when "the individual [is] not eligible for naturalization in the first place because he or she does not meet or fail[s] to comply with all of the statutory requirements for naturalization." (24) Within the last twelve years denaturalization has become more common due to fraud detecting technologies and the recent movement by the Executive Branch towards stricter immigration policies . (25)

In Okpala v. Whitaker, the United States Court of Appeals for the Fifth Circuit held that the BIA wrongly applied 8 U.S.C. [section]1227(a)(2)(A)(iii) to Petitioner because he was still a naturalized citizen at the time of his convictions. (26) Since this was a matter of first impression for the Court, it relied heavily on the Supreme Court's decision in Costello v. INS. (27) Following the Supreme Court's reasoning, the court disagreed with the BIA's decision by emphasizing Petitioner's naturalized status. (28) The Okpala Court also followed the Supreme Court's prior decision in determining that the government's theory of ab initio denaturalization was erroneously applied to Petitioner. (29) Although the Court of Appeals found that Petitioner was not denied his due process rights in prior proceedings, the Court ultimately disagreed with the BIA's determination that Petitioner was subject to deportation because of the timing of his conviction of procuring citizenship unlawfully. (30)

Although the Court properly applied the Supreme Court's reasoning in Costello v. INS, the Okpala court disregarded a major difference between the facts of the relied upon case and Petidoner's case. (31) As the concurrence points out, unlike Costello, Petitioner was partaking in drug trafficking crimes both before and during his naturalization process. (32) Had the United States known about Petitioner's participation in these serious crimes, he would have never been granted his status as a naturalized citizen. (33) To give Petitioner the leniency that the Court gave him in the case at hand, rewards the exact type of behavior that the United States is attempting to avoid. (34)

The Court also contemplated whether Petitioner could be deported under the general deportation statute because of his ab initio denaturalization. (15) The Court again utilized the Supreme Court's reasoning in Costello, which stated that the general deportation statute did not mention ab initio denaturalization, so the Court decided the statute could not be construed to apply to the petitioner. (36) Looking at the statute closely, it does not support an ab initio denaturalization theory for those in the Petitioner's situation - naturalized citizens who had been partaking in illegal activities during their naturalization proceedings, which ultimately led to there later convictions." Therefore, because neither ab initio denaturalization is mentioned in the statute nor is there any reliable precedent using ab initio denaturalization theory, the Court reasonably decided not to apply the theory to Petitioner's case. (38)

Lastly, the Court correctly analyzed whether Petitioner's due process rights had been violated. (39) Addressing this, the Court stated that in order to show that Petitioner's due process rights had been violated, he had to show that the outcome of his case would have been different had the alleged violation not occurred. (40) Since Petitioner could not make this showing, the Court appropriately and accurately determined that Petitioner's due process rights had not been violated. (41)

The Fifth Circuit Court of Appeals reasonably utilized both the general deportation statute and case precedent to determine whether Petitioner was subject to deportation. Petitioner participated in an aggravated felony both before and while acquiring his naturalization status. Due to the present case being a matter of first impression, the Court judiciously relied upon the Supreme Court's prior decision. The majority opinion, however, disregarded a material difference between the case relied upon for its reasoning and the case at hand. Regardless, the Court reasonably determined, based on the lack of any judicial support, the government's theory of ab initio denaturalization could not apply to the Petitioner. Lastly, the Court correctly determined that Petitioner's due process rights had not been violated.

Jessica Leoni

Flores v. Gonzales, 439 F. 3d 614, 617 (9th Cir. 2006) (holding due proeess violation occurred). In Ibarra-Flores, the petitioner was told he had to sign an unidentified document in order to become a United States citizen. Id. at 617. In reality, the immigration officials were having him sign a voluntary departure form that denied him any rights in the United States. Id. An immigration judge then determined, without substantial evidence, that the petitioner was not eligible for cancellation of removal from the United States. Id. at 618. On appeal, the court determined that the immigration judge violated the petitioner's due process rights because the judge refused to have the Immigration and Naturalization Service produce the petitioner's form that he had allegedly, voluntarily signed. Id. at 620. The appellate court stated that this violated the petitioner's right to a full and fair hearing and, thus, affected the outcome of the petitioner's case. Id.

(1.) See INA [section] 101 (a)(23); 8 U.S.C. [section] 1101(a)(23) (1996) (defining naturalization). Naturalization has been defined in the United States Code as "the conferring of nationality of a slate upon a person after birth, by any means whatsoever." Id. See also INA [section] 237 (a)(2)(A)(iii); 8 U.S.C. [section] 1227(a)(2)(A)(iii) (1996) (declaring deportability of aliens convicted of aggravated felonies). The Immigration and Nationality Act states that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." Id. See also Aggravated Felonies: An Overview, AM. IMMIGR. COUNCIL (Dec. 16, 2016), https://www.americanimmigrationcouncil.org/research/aggravated-felonies-overview (defining aggravated felonies). An aggravated felony, for the purposes of immigration law, "is any crime that Congress decides to label as such." Id. See also INA [section] 101 (a)(43); 8 U.S.C. [section] 1101(a)(43) (1996) (defining aggravated felonies). 8 U.S.C. [section] U01(a)(43) lists crimes that are considered aggravated felonies. Id. The list includes drug trafficking of controlled substances, murder or rape of a minor, and many other serious offenses. Id. See also Ilona Bray...