               Case: 13-13445       Date Filed: 06/27/2014      Page: 1 of 14



                                                                                [PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 13-13445
                              ________________________

                               Agency No. A093-022-401



JOSE FERNANDO CASTILLO,

                                                                                   Petitioner,

                                           versus

U.S. ATTORNEY GENERAL,


                                                                                Respondent.

                              ________________________

                        Petition for Review of a Decision of the
                             Board of Immigration Appeals
                              ________________________

                                     (June 27, 2014)

Before MARCUS and EDMONDSON, Circuit Judges, and TREADWELL, *
District Judge.


*
  Honorable Marc T. Treadwell, United States District Judge for the Middle District of Georgia,
sitting by designation.
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MARCUS, Circuit Judge:

      This case of first impression concerns whether the Board of Immigration

Appeals (“BIA”) correctly found petitioner Jose Fernando Castillo removable as an

aggravated felon, even though the Georgia State Board of Pardons and Paroles had

earlier pardoned Castillo for the conviction that rendered him removable. On

appeal, Castillo claims the BIA should have applied 8 U.S.C. § 1227(a)(2)(A)(vi),

which waives the removability of a criminal alien who receives a “full and

unconditional pardon.” We disagree. Under the plain meaning of

§ 1227(a)(2)(A)(vi), a pardon is only “full” when it restores the totality of rights

abrogated by the underlying conviction. Here, Castillo’s pardon did not reinstate

his Second Amendment right to keep and bear arms, a privilege he lost under

Georgia law as a result of his conviction. Thus, Castillo did not receive a “full”

pardon, and § 1227(a)(2)(A)(vi) does not apply. After thorough review, we deny

Castillo’s petition.

                                           I.

      The undisputed facts and procedural history are straightforward. Castillo, a

native and citizen of the Dominican Republic, became a lawful permanent resident

of the United States in 1990. On April 7, 1993, Castillo, then 27 years old, pled

guilty to statutory rape, a felony violation of Ga. Code § 16-6-3(a). At the time of

his guilty plea, the Georgia criminal statute provided:

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         A person commits the offense of statutory rape when he engages in
         sexual intercourse with any female under the age of 14 years and not
         his spouse, provided that no conviction shall be had for this offense on
         the unsupported testimony of the female.

Ga. Code § 16-6-3(a) (1993). 1 The trial judge imposed a five-year prison sentence

but allowed Castillo to serve it on probation.

         In April 2012, after determining that Castillo was a “law-abiding citizen and

. . . fully rehabilitated,” the Georgia State Board of Pardons and Paroles -- the

state’s highest pardoning authority -- granted Castillo’s application for a pardon.

In relevant part, the pardon established:

                [P]ursuant to Article IV, Section II, Paragraph II(a) of the
         Constitution of the State of Georgia, the Board, without implying
         innocence, hereby unconditionally fully pardons said individual, and it
         is hereby

               ORDERED that all disabilities under Georgia law resulting
         from the above stated conviction(s) and sentence(s), as well as, any
         other Georgia conviction(s) and sentence(s) imposed prior thereto, be
         and each and all are hereby removed; and

                ORDERED FURTHER that all civil and political rights, except
         the right to receive, possess, or transport in commerce a firearm, lost
         under Georgia law as a result of the above stated conviction(s) and
         sentence(s), as well as, any other Georgia conviction(s) and


1
    The Georgia Code has since been amended to provide:

         A person commits the offense of statutory rape when he or she engages in sexual
         intercourse with any person under the age of 16 years and not his or her spouse, provided
         that no conviction shall be had for this offense on the unsupported testimony of the
         victim.

Ga. Code § 16-6-3(a) (2006). Neither party disputes that the predecessor statute controls.
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       sentence(s) imposed prior thereto, be and each and all are hereby
       restored.

       On October 23, 2012, the Department of Homeland Security (“DHS”)

served Castillo with a notice to appear before an immigration judge (“IJ”) in

removal proceedings. In relevant part, the government charged Castillo with being

subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted

of an aggravated felony after admission into the country. 2 Castillo was detained

and held in an Immigration and Customs Enforcement facility pending the

determination of his case.

       Soon after his detention, Castillo moved to terminate removal proceedings.

Before the IJ, Castillo principally claimed he was entitled to a waiver of

removability under § 1227(a)(2)(A)(vi). 3 In full, § 1227(a)(2)(A)(vi) provides:

       Clauses (i), (ii), (iii), and (iv) [of 8 U.S.C. § 1227(a)(2)(A)] shall not
       apply in the case of an alien with respect to a criminal conviction if
       the alien subsequent to the criminal conviction has been granted a full

2
  The DHS also charged Castillo with removability under 8 U.S.C. § 1227(a)(2)(E)(i), as an alien
convicted of a crime of child abuse after admission. In later administrative proceedings,
however, the BIA found that Castillo was not removable under § 1227(a)(2)(E)(i), since his
statutory rape conviction preceded the September 30, 1996, effective date for that ground of
removability. The government has not petitioned for review of that determination, and thus
§ 1227(a)(2)(E)(i) falls outside the scope of this appeal.
3
  In his Response to the Government’s Position on Respondent’s Motion to Terminate
Proceedings, Castillo also argued that the DHS had improperly classified Georgia’s statutory
rape law as an aggravated felony. However, Castillo did not reprise this argument in his opening
brief in this Court, and “the law is by now well settled in this Circuit that a legal claim or
argument not briefed before the court is deemed abandoned and its merits will not be addressed.”
Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). Thus, we
have no occasion to decide whether Castillo’s statute of conviction in fact qualifies as an
aggravated felony under the immigration laws.
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      and unconditional pardon by the President of the United States or by
      the Governor of any of the several States.

8 U.S.C. § 1227(a)(2)(A)(vi). Castillo asserted that his pardon was “full and

unconditional,” since it was subject to no condition that could nullify its effect.

Moreover, though the pardon did not restore his firearm privileges, Castillo argued

that § 1227(a)(2)(A)(vi) requires only a pardon that clears a criminal conviction,

not one that reinstates rights.

      On February 14, 2013, the IJ denied Castillo’s motion to terminate removal

proceedings. The IJ reasoned that Castillo’s pardon was not “full and

unconditional,” as required under § 1227(a)(2)(A)(vi), because it did not restore

Castillo’s Second Amendment rights. The IJ therefore found Castillo removable

under § 1227(a)(2)(A)(iii) and ordered him deported to the Dominican Republic.

      Castillo appealed to the BIA, arguing that the IJ had erred as a matter of law

in failing to apply the waiver-of-removability provision contained in

§ 1227(a)(2)(A)(vi). On July 9, 2013, in a non-precedential decision dismissing

Castillo’s appeal, a three-member panel of the BIA upheld the IJ’s determination

that Castillo’s pardon was not “full and unconditional.” Jose Fernando Castillo,

A093-022-401, at 2 (BIA July 9, 2013). The Board explained that, “[d]espite the

language of the pardon, i.e. ‘unconditionally fully pardons,’ we find that any

pardon that deprives an individual of rights under the Second Amendment to the

Constitution cannot reasonably be considered ‘full and unconditional’ for purposes
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of the [Immigration and Nationality] Act.” Id. Further, the panel reasoned that a

pardon would be “‘full and unconditional’ only if it erased all legal disabilities

flowing from a conviction, regardless of whether the legal disability is referred to

as a ‘condition’ or an ‘exception.’” Id. Finally, the BIA noted in passing that “the

restoration of one’s firearms rights is available from the Georgia State Board of

Pardons and Paroles upon meeting additional conditions.” Id. Castillo timely

petitioned for review of the BIA’s decision dismissing his appeal.

                                          II.

      Castillo raises just one issue on appeal. The success or failure of his petition

depends entirely on the meaning of “full and unconditional pardon,” as Congress

intended that term in § 1227(a)(2)(A)(vi). Generally, we lack the power to review

a final order of removal entered against an alien found removable as an aggravated

felon. See 8 U.S.C. § 1252(a)(2)(C). However, we retain jurisdiction to evaluate

“questions of law raised upon a petition for review,” see id. § 1252(a)(2)(D), and to

examine “the application of an undisputed fact pattern to a legal standard,” see

Jean-Pierre v. U.S. Att’y Gen., 500 F.3d 1315, 1322 (11th Cir. 2007). When we

interpret § 1227(a)(2)(A)(vi), we answer a purely legal question. Moreover, to

determine whether § 1227(a)(2)(A)(vi) controls this case, we must apply

undisputed facts to a legal standard. Thus, contrary to the government’s

suggestion, we have jurisdiction over Castillo’s appeal.


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                                          A.

      We review de novo the BIA’s interpretation of the Immigration and

Nationality Act (“INA”), deferring to the Board’s permissible construction only

where the statute is ambiguous. See Cole v. U.S. Att’y Gen., 712 F.3d 517, 523

(11th Cir. 2013) (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 104 S. Ct. 2778 (1984)). Where, as here, the BIA has issued its own

opinion, we exclusively review that decision, except to the extent that it expressly

adopts the IJ’s opinion. See Imelda v. U.S. Att’y Gen., 611 F.3d 724, 727 (11th

Cir. 2010). Like the BIA, we hold that Congress clearly and unambiguously

intended § 1227(a)(2)(A)(vi) to apply only when an alien secures a pardon

restoring all rights vitiated by the underlying adjudication of guilt. Since the

statute is clear, we have no occasion to examine its terms against the template of

Chevron or Skidmore deference.

      We decipher congressional intent from “the plain language of the statute.”

Wilderness Watch & Pub. Emps. for Envtl. Responsibility v. Mainella, 375 F.3d

1085, 1091 (11th Cir. 2004). The INA does not define “full and unconditional

pardon,” so we must look instead to the “ordinary meaning” of those terms. See

United States v. Silvestri, 409 F.3d 1311, 1333 (11th Cir. 2005) (“Courts must

assume that Congress intended the ordinary meaning of the words it used.”

(quoting Consol. Bank, N.A., Hialeah Fla. v. U.S. Dep’t of Treasury, 118 F.3d


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1461, 1463 (11th Cir. 1997))); Wilderness Watch, 375 F.3d at 1092 (“When

interpreting the language of a statute, ‘we generally give the words used their

ordinary meaning.’” (quoting Griffith v. United States, 206 F.3d 1389, 1393 (11th

Cir. 2000) (en banc))).

       “To determine the ordinary meaning of a term, ‘courts often turn to

dictionary definitions for guidance.’” Reed v. Chase Home Finance, LLC, 723

F.3d 1301, 1303 (11th Cir. 2013) (per curiam) (quoting Silvestri, 409 F.3d at

1333). While Castillo received an “unconditional” pardon, in the sense that its

effect was not contingent on a condition precedent or a condition subsequent,

relevant dictionaries overwhelmingly suggest that his pardon was not “full.” In

1952, when Congress first provided a waiver of deportability for a “full and

unconditional pardon,” see Pub. L. No. 82-414, § 241(b), 66 Stat. 208 (1952),

Black’s Law Dictionary defined “full pardon” to mean “[o]ne freely and

unconditionally absolving party from all legal consequences, direct and collateral,

of crime and conviction.”4 Black’s Law Dictionary 1269 (4th ed. 1951) (emphasis

added). Subsequent editions underscore this plenary nature of full pardons, even

specifying that a full pardon “restores the offender’s civil rights without

qualification.” Black’s Law Dictionary 1221 (9th ed. 2009). Non-legal
4
  Earlier, in 1917, Congress had made available a waiver of deportability to aliens pardoned for
crimes of moral turpitude. See Pub. L. No. 64-301, § 19, 39 Stat. 889-90 (1917) (“[T]he
provision of this section respecting the deportation of aliens convicted of a crime involving
moral turpitude shall not apply to one who has been pardoned . . . .”). However, until the 1952
revision, the statute did not specifically call for a pardon that was “full and unconditional.”
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dictionaries place similar emphasis on a full pardon’s sweeping consequences.

See, e.g., Webster’s New Int’l Dictionary 1776 (2d ed. 1952) (defining “pardon” to

mean “release from penalty; remission of punishment”); id. 1017 (defining “full”

to mean “having within its limits all that it can contain”). Simply put, the common

meaning of a “pardon” that is “full” contemplates the annulment of all future

punishment, including the restoration of all lost rights.

      Our analysis of § 1227(a)(2)(A)(vi) is also informed by case law interpreting

the phrase, “full pardon,” in other contexts. See Lorillard v. Pons, 434 U.S. 575,

583, 98 S. Ct. 866, 871 (1978) (“[W]here words are employed in a statute which

had at the time a well-known meaning at common law or in the law of this

country[,] they are presumed to have been used in that sense unless context

compels to the contrary.” (first alteration in original) (quoting Standard Oil v.

United States, 221 U.S. 1, 59, 31 S. Ct. 502, 515 (1911))). Although no circuit has

interpreted the text of § 1227(a)(2)(A)(vi), its terms have a well-settled legal

meaning. In Ex Parte Garland, 71 U.S. (4 Wall.) 33 (1866), a case involving

presidential pardons for former Confederate officials, the Supreme Court observed:

      [T]he inquiry arises as to the effect and operation of a pardon, and on
      this point all the authorities concur. A pardon reaches both the
      punishment prescribed for the offence and the guilt of the offender;
      and when the pardon is full, it releases the punishment and blots out of
      existence the guilt, so that in the eye of the law the offender is as
      innocent as if he had never committed the offence. If granted before
      conviction, it prevents any of the penalties and disabilities consequent
      upon conviction from attaching; if granted after conviction, it removes
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       the penalties and disabilities, and restores him to all his civil rights; it
       makes him, as it were, a new man, and gives him a new credit and
       capacity.

Id. at 380-81 (emphases added); see Knote v. United States, 95 U.S. 149, 153

(1877) (noting that a pardon “releases the offender from all disabilities imposed by

the offence”). 5

       After Garland, in different contexts, courts have consistently observed that a

full pardon bars all future punishment for the pardoned conviction. See, e.g.,

United States v. Sutton, 521 F.2d 1385, 1388 (7th Cir. 1975) (invoking Knote to

examine consequences of “full” Illinois pardon under statute criminalizing receipt

of firearm by convicted felon); United States v. Barrett, 504 F.2d 629, 634 (6th Cir.

1974) (citing Garland to analyze “partial” Kentucky pardon under statute

criminalizing receipt of firearm by convicted felon); Kwai Chiu Yuen v. I.N.S.,

406 F.2d 499, 499, 501-02 (9th Cir. 1969) (applying Garland to evaluate scope of

“full” California pardon under immigration statute nullifying effect of pardons in

narcotics conviction cases). It is beyond dispute that “[a]ny deprivation or

suspension of . . . rights for past conduct is punishment.” Cummings v. Missouri,


5
 Subsequent cases have rejected as dicta the observation in Garland that a pardon “blots out of
existence the guilt” associated with a conviction. See Burdick v. United States, 236 U.S. 79, 94,
35 S. Ct. 267, 270 (1915) (explaining that a pardon “carries an imputation of guilt”); In re North,
62 F.3d 1434, 1437-38 (D.C. Cir. 1994) (per curiam) (collecting cases contradicting Garland’s
expansive language regarding a pardon’s impact upon an offender’s guilt). But no court has
questioned the settled proposition that a full pardon “exempts the individual, on whom it is
bestowed, from the punishment the law inflicts for a crime he has committed.” United States v.
Wilson, 32 U.S. (7 Pet.) 150, 160 (1833) (emphasis added).
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71 U.S. (4 Wall.) 277, 322 (1866). Thus, across the legal spectrum, a full pardon

“restores to [the offender] all his civil rights.” Knote, 95 U.S. at 153; see United

States v. Matassini, 565 F.2d 1297, 1305 (5th Cir. 1978) (recognizing a difference

between “a full pardon” and a pardon that “limited [an offender’s] right to possess

a firearm” under felon-in-possession laws). 6

       Nothing in § 1227(a)(2)(A)(vi) suggests that Congress spoke these familiar

words in any unfamiliar sense. To the contrary, the consensus surrounding the

definition of “full pardon” plainly dictates the meaning of that phrase in

§ 1227(a)(2)(A)(vi). Accordingly, we hold that a pardon is only “full” within the

meaning of § 1227(a)(2)(A)(vi) when it vacates all future punishment for the

underlying conviction, thereby restoring all lost rights. Here, Castillo’s pardon did

not reinstate his “right to receive, possess, or transport in commerce a firearm.”

Thus, his pardon was not “full” and § 1227(a)(2)(A)(vi) does not waive his

removability.

                                              B.

       Castillo argues, however, that § 1227(a)(2)(A)(vi) requires only a pardon

that clears from the books a criminal conviction, not necessarily one that vindicates

rights. According to Castillo, Congress unambiguously intended this more limited

meaning by specifying that removability “shall not apply in the case of an alien

6
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all Fifth Circuit decisions issued before October 1, 1981.
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with respect to a criminal conviction if the alien subsequent to the criminal

conviction has been granted a full and unconditional pardon.” 8 U.S.C.

§ 1227(a)(2)(A)(vi) (emphasis added). In other words, Castillo claims the phrase,

“with respect to a criminal conviction,” narrows the meaning of a “full” pardon in

this context. We are unpersuaded.

      For starters, Castillo’s interpretation contradicts the most natural reading of

the text. See, e.g., Barber v. Thomas, 560 U.S. 474, 492, 130 S. Ct. 2499, 2511

(2010) (expressing preference for “the most natural reading of the statutory

language”). Read naturally, the phrase, “with respect to a criminal conviction,”

simply emphasizes that § 1227(a)(2)(A)(vi) applies only to aliens removable by

reason of a criminal conviction to begin with. By contrast, there is no evidence --

in the text or the structure of the statute -- to support Castillo’s alternative

suggestion that the words, “with respect to a criminal conviction,” operate to limit

the phrase, “full and unconditional pardon.” Against the well-settled and plenary

meaning of a “full” pardon, this omission is significant. See Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 468, 121 S. Ct. 903, 909-10 (2001) (Congress does

not “hide elephants in mouseholes”).

      Moreover, the history of § 1227(a)(2)(A)(vi) militates against Castillo’s

reading of the statute. Fifty years after Garland’s explication of a “full” pardon,

Congress enacted § 1227(a)(2)(a)(vi)’s earliest predecessor, which waived the


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deportability of “one who has been pardoned.” See Pub. L. No. 64-301, § 19, 39

Stat. 889-90 (1917). Thirty-five years later, Congress doubled down, specifying

that the provisions “respecting the deportation of an alien convicted of a crime or

crimes shall not apply . . . in the case of any alien who has subsequent to such

conviction been granted a full and unconditional pardon.” See Pub. L. No. 82-414,

§ 241(b), 66 Stat. 208 (1952) (emphasis added). Congress approved the statute’s

present language in 1990, providing that certain removability grounds “shall not

apply in the case of an alien with respect to a criminal conviction if the alien

subsequent to the criminal conviction has been granted a full and unconditional

pardon.” See Pub. L. No. 101-649, § 602, 104 Stat. 5080 (1990) (codified at 8

U.S.C. § 1227(a)(2)(A)(vi) (2012)) (emphasis added).

      Nothing in the legislative history of the INA even hints that Congress added

the words, “with respect to a criminal conviction,” in an attempt to alter the

substance of the existing pardon waiver. Certainly, nothing suggests the phrase

was meant to compress the well-settled meaning of a “full” pardon. In fact, the

Act’s legislative history strongly implies that, in 1990, Congress aimed only to

preserve the existing waiver. The language enacted in 1990 had also appeared in

earlier proposals, including the unsuccessful Immigration Exclusion and

Deportation Amendments of 1988. See H.R. 4427, 100th Cong. § 3(a)(2)(A)(iii)

(as reported by H. Comm. on the Judiciary, Aug. 12, 1988) (providing waiver “in


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the case of an alien with respect to a criminal conviction if the alien subsequent to

the criminal conviction has been granted a full and unconditional pardon”

(emphasis added)). In a report accompanying the 1988 proposal, the House

Committee on the Judiciary addressed this language, notably explaining that “[t]he

waiver for aliens who have been pardoned by the President or Governor of a State

. . . is retained and redesignated in this legislation.” H.R. Rep. No. 100-882, at 43

(1988) (emphasis added). Consequently, we think the 1990 legislation, which used

exactly the same language as the failed 1988 proposal, similarly preserved the

substance of the earlier pardon waiver.

      In short, there is simply no basis for Castillo’s claim that a full and

unconditional pardon “with respect to a criminal conviction” is anything other than

a “full and unconditional pardon,” as that concept is commonly understood. By its

plain terms, a “full pardon” annuls all future punishment and restores all lost rights.

Castillo received no such pardon from the Georgia State Board of Pardons and

Paroles. Accordingly, the waiver provision contained in § 1227(a)(2)(A)(vi) does

not apply.

      PETITION DENIED.




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