     Case: 17-60391    Document: 00514724538     Page: 1   Date Filed: 11/15/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                     Fifth Circuit

                                                                           FILED
                                                                      November 15, 2018
                                  No. 17-60391
                                                                         Lyle W. Cayce
                                                                              Clerk

OKEY GARRY OKPALA, also known as Okechukwu Oguejifor Okpala,

       Petitioner

v.

MATTHEW G. WHITAKER, ACTING U. S. ATTORNEY GENERAL,

       Respondent




                      Petition for Review of an Order of the
                          Board of Immigration Appeals


Before STEWART, Chief Judge, and JONES and ENGELHARDT, Circuit
Judges.

CARL E. STEWART, Chief Judge:
      Petitioner Okey Garry Okpala requests review of the decision of the
Board of Immigration Appeals (“BIA”) affirming the immigration judge’s (“IJ”)
deportation order. Because the BIA erred in construing 8 U.S.C. §
1227(a)(2)(A)(iii) to apply to an individual who was a naturalized citizen at the
time of conviction, we grant the petition for review and vacate the BIA’s
deportation order.
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                                                I.
          Okpala is a native of Nigeria who was admitted into the United States
as a student in 1982. 1 On December 8, 1986, Okpala became a permanent
resident alien based on his marriage to a United States citizen. He was
naturalized as a citizen on March 6, 1992. On October 25, 1993, Okpala was
convicted of heroin conspiracy, distribution of heroin, importation of heroin,
procuring citizenship unlawfully, and making false statements. His convictions
were affirmed on direct appeal and the Supreme Court denied certiorari.
United States v. Okpala, No. 93-9349, 1997 WL 154636, at *1 (11th Cir. 1997)
(unpublished), cert. denied, 522 U.S. 1097 (1998). On December 1, 1993, the
district court revoked Okpala’s certificate of naturalization because of his
conviction for procuring naturalization unlawfully. Okpala swore in his
naturalization application that he had not knowingly committed any crime for
which he had not been arrested. In light of the October convictions, this was
false.
          The Department of Homeland Security (“DHS”) issued an Order to Show
Cause in January 1994 and began deportation proceedings. The Government
charged Okpala as being removable as an alien with controlled substance and
aggravated felony convictions. Because Okpala was in the custody of the
United States Bureau of Prisons serving his criminal sentence, an IJ
administratively closed the immigration proceedings in May 1995. Twenty
years later, in anticipation of Okpala’s release, the DHS moved to recalendar
Okpala’s immigration proceedings and transfer the proceedings to the
Immigration Court in Oakdale, Louisiana, where Okpala was detained. The
motion was granted on January 21, 2016.



          1   Okpala was removed to Nigeria on August 29, 2017 and is no longer in the United
States.
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                                 No. 17-60391
      Okpala moved to terminate his deportation proceedings. He argued that
the order revoking naturalization was invalid and that he was a United States
citizen. He initially conceded both charges of deportability before later denying
them. The DHS submitted an exhibit with records of his criminal convictions.
Okpala objected, arguing that the Government did not timely file the exhibit
and the documents were insufficient. Okpala also argued that his 1993
convictions did not qualify as criminal convictions for immigration purposes.
On May 31, 2016, the IJ denied the motion to terminate proceedings, because
the denaturalization order sufficiently established that Okpala was no longer
a United States citizen and the record contained sufficient evidence to
establish the criminal convictions. The IJ additionally concluded that the
heroin-related convictions were aggravated felonies that constituted violations
of a law relating to a controlled substance.
      Okpala filed a motion to reconsider the May 31, 2016 order and a second
motion to terminate proceedings. Okpala challenged the determination that he
was not a United States citizen and the validity of his 1993 criminal
convictions. The IJ denied the motion to reconsider and the second motion to
terminate and ordered that Okpala be deported to Nigeria.
      Okpala appealed the IJ’s denial of his motions to reconsider and
terminate. He argued that, under Costello v. INS, 376 U.S. 120 (1964), he was
a United States citizen at the time of the 1993 convictions, so he was not an
alien under the general deportation statutes. He also contended that the
denaturalization order was void for failure to comply with procedural and
substantive provisions; the record of the 1993 convictions was untimely and
lacked foundation; the DHS did not submit a “nonpoisonous” jury verdict of the
1993 convictions; the 1993 convictions constituted in absentia convictions and
did not attain a substantial degree of finality; the instant removal proceeding


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                                 No. 17-60391
was barred by collateral estoppel and res judicata; and his due process rights
were violated.
      The BIA concluded that the IJ properly determined that Okpala was
convicted of an aggravated felony. The BIA also concluded that, under the
doctrine of collateral estoppel, a prior denaturalization judgment conclusively
established the ultimate facts in a subsequent deportation hearing. The BIA
did not have jurisdiction to look at these ultimate facts and was precluded from
reconsideration of issues of law resolved by the prior court arising from
identical facts. The BIA noted that Okpala’s denaturalization order was
affirmed on appeal.
      The BIA also determined that Okpala, now an alien, was amenable to
deportation proceedings. The BIA distinguished Costello from the instant case
on grounds that a judicial recommendation against deportation was
unavailable to Okpala but had been central to Costello’s holding. As to the Due
Process claim, the BIA determined that Okpala was afforded ample
opportunity to present evidence on his behalf, had submitted substantial
written and oral contentions to the IJ, and the IJ had considered those
contentions. As Okpala failed to identify any specific action by the IJ resulting
in actual prejudice, the BIA concluded that Okpala failed to show that the
proceedings below were fundamentally unfair and dismissed the appeal.
Okpala timely filed his petition for review.
                                       II.
      We review the BIA’s findings of fact for substantial evidence; that review
includes the IJ’s judgment to the extent it influenced the BIA’s decision. Sealed
Petitioner v. Sealed Respondent, 829 F.3d 379, 383 (5th Cir. 2016). The BIA’s
conclusions of law are reviewed de novo. Hernandez-De La Cruz v. Lynch, 819
F.3d 784, 785–86 (5th Cir. 2016). If “a conclusion embodies [the BIA’s]
interpretation of an ambiguous provision of a statute that it administers,” we
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accord due deference as required by Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 842 (1984). Orellana-Monson v. Holder, 685 F.3d
511, 517 (5th Cir. 2012) (quotation omitted). Nevertheless, we “may reverse a
decision that was decided on the basis of an erroneous application of the law.”
Sealed Petitioner, 829 F.3d at 384 (quoting Mikhael v. INS, 115 F.3d 299, 305
(5th Cir. 1997)).

                                       III.
       Okpala contends that the BIA erred in construing 8 U.S.C. §
1227(a)(2)(A)(iii) to apply to him because he was a naturalized citizen at the
time of his convictions. We agree.

       “Any alien who is convicted of an aggravated felony at any time after
entry is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). Section 1101(a)(3) of Title 8
of the United States Code defines an “alien” as “any person not a citizen or
national of the United States.” The parties concede that Okpala was a
naturalized citizen when convicted of his crimes, but they disagree on the
statute’s application in this case. Okpala argues that 8 U.S.C. §
1227(a)(2)(A)(iii) does not apply to him because he was a naturalized citizen
when    convicted.   The   Government         argues   that   Okpala’s    ab   initio
denaturalization makes him amenable to deportation under the statute.

       Although this is a matter of first impression in this court, the Supreme
Court addressed this issue in Costello v. INS, 376 U.S. 120 (1964). The Court
in Costello considered the proposed deportation of Frank Costello, who was
naturalized in 1925 and later denaturalized pursuant to 8 U.S.C. § 1451(a) for
willful misrepresentations in his naturalization application. Costello, 376 U.S.
at 121; see also Costello v. United States, 365 U.S. 265, 266 (1960). Costello
claimed on his naturalization application that his occupation was “real estate”
when in fact he was a “bootlegger.” Costello, 365 U.S. at 270. In 1961, “the

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                                      No. 17-60391
Immigration and Naturalization Service [(“INS”)] commenced proceedings to
deport” Costello pursuant to 8 U.S.C. § 1251(a)(4). 2 Costello, 376 U.S. at 121.
This provision reads in relevant part: “Any alien in the United States . . . shall,
upon the order of the Attorney General, be deported who . . . at any time after
entry is convicted of two crimes involving moral turpitude.” Id. (emphasis
added).

       The Court considered whether Costello was subject to deportation under
this statute “even though the two convictions relied upon to support
deportation both occurred at a time when he was a naturalized citizen.” Id. at
122. It concluded that he was not for two reasons. Id. First, the deportation
provision was not status-neutral; it could not be construed to encompass
denaturalized aliens who had not been aliens at the time of conviction. Id. at
122–23 (holding that “a person now an alien who was convicted of the two
crimes in question while he was a naturalized citizen” is not deportable under
the provision). Second, ab initio denaturalization pursuant to 8 U.S.C. §
1451(a) did not retroactively make such a person “an alien as a matter of law”
at the time of conviction. Id. at 129. It is this second holding that controls the
question of whether Okpala is amenable to deportation proceedings as an alien
because of his ab initio denaturalization.

       Like Costello, Okpala was naturalized when convicted of deportable
offenses and then denaturalized pursuant to 8 U.S.C. § 1451(a) for material
falsehoods on his naturalization application. And as in Costello, the
Government brought deportation proceedings against Okpala under a
subsection of the general deportation statute, 8 U.S.C. § 1227, that subjects an
“alien” who “is convicted” of certain offenses to deportation. Costello is not


       2This section, 241(a) of the Immigration and Nationality Act (“INA”), is located today
at 8 U.S.C. § 1227(a)(2)(A)(ii).
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                                        No. 17-60391
materially distinguishable from the facts at hand and thus controls here. 3
Accordingly, we conclude that Okpala was not rendered an “alien” at the time
of conviction by nature of his subsequent ab initio denaturalization. 4
Consequently, Okpala is not subject to deportation under 8 U.S.C. §
1227(a)(2)(A)(iii) because he was a naturalized citizen at the time he was
convicted.
                                              IV.
       Okpala argues that his denaturalization decree was void for failing to
comply with various procedural and substantive requirements, and as a result
he is still a United States citizen. Okpala was convicted of unlawful citizenship
under 18 U.S.C. § 1425. As such, “the court in which such conviction is had
shall thereupon revoke, set aside, and declare void the final order admitting
such person to citizenship, and shall declare the certificate of naturalization of
such person to be canceled.” 8 U.S.C. § 1451(e). The language of this statute is
mandatory; the trial court cannot exercise discretion on the cancellation
process. See United States v. Moses, 94 F.3d 182, 188 (5th Cir. 1996). Okpala’s
argument that he is a United States citizen is unmeritorious.




       3  The Government argues that language from the Illegal Immigration Reform and
Immigrant Responsibility Act, which amended the INA, shows Congress’s contrary
intentions. However, the provision they rely on provides the effective date of the amended
definition of Aggravated Felony. 8 U.S.C. § 101(a)(43). It does not alter the Court’s
interpretation of 8 U.S.C. § 1451(a), nor does it align the statute with Eichenlaub, in which
the Court also rejected the relation-back theory. See United States ex rel. Eichenlaub v.
Shaughnessy, 338 U.S. 521, 530–31 (1949); see also Costello, 376 U.S. at 132 (noting the Court
had previously “declined to apply [this] fiction in a deportation context in the Eichenlaub
case”).
        4 The BIA erred in holding that Matter of Rossi, 11 I. & N. Dec. 514 (BIA 1996) controls.

Matter of Rossi held that Costello does not control when a judicial recommendation against
deportation (“JRAD”) is unavailable to a denaturalized alien. However, the availability of a
JRAD is relevant only to the first issue in Costello––whether the deportation provision is
status-neutral––which is not at issue here. See Costello, 376 U.S. at 124–28.


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                                 No. 17-60391
      Okpala additionally argues that the doctrines of collateral estoppel and
res judicata foreclosed the DHS from initiating removal proceedings because
the issues were previously investigated when his 1994 detainer was cancelled
and when the 2001 Order to Show Cause declared the denaturalization decree
void. The DHS commenced deportation proceedings in January 1994 with the
issuance of an Order to Show Cause. Because Okpala was in the custody of the
Bureau of Prisons serving his criminal sentence, the immigration proceedings
were closed in May 1995 and were not recalendared until twenty years later.
This argument is unavailing.
      Okpala also asserts that his due process rights were violated when he
was not provided the opportunity to rebut the BIA’s reliance on the collateral
estoppel doctrine. He contends that the BIA sua sponte applied the doctrine
and that it was never raised below or mentioned in the IJ’s order.
      The Fifth Amendment’s Due Process Clause protects individuals in
removal proceedings. Manzano-Garcia v. Gonzales, 413 F.3d 462, 470 (5th Cir.
2005). As a general rule, due process requires that an alien be provided notice
of the charges against him, a hearing before an executive or administrative
tribunal, and a fair opportunity to be heard. Id. To prevail on a claim regarding
an alleged denial of due process rights, an alien must make an initial showing
of substantial prejudice. Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997).
Proving substantial prejudice requires an alien to make a prima facie showing
that the alleged violation affected the outcome of the proceedings. Ogunfuye v.
Holder, 610 F.3d 303, 306–07 (5th Cir. 2010); Anwar, 116 F.3d at 144–45.
Assuming without deciding a due process violation occurred, Okpala fails to
show that the outcome of the proceedings would have been different if he had
the opportunity to respond to the collateral estoppel defense. See Ogunfuye,
610 F.3d at 306–07; Anwar, 116 F.3d at 144–45. Thus, this argument also fails.


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                                       No. 17-60391
       Finally, Okpala argues that the IJ and BIA erroneously determined that
collateral estoppel applied to the instant case, so the IJ and BIA did not address
his affirmative defenses regarding the denaturalization order and the 1993
convictions. Because the denaturalization was mandated by statute, Okpala’s
convictions were affirmed on direct appeal, and the Supreme Court denied
certiorari, the BIA correctly rejected his arguments regarding the validity of
the denaturalization order and the 1993 convictions. See § 1451(e); Okpala,
1997 WL 154636, at *1; Okpala, 522 U.S. at 1097.
                                             V.
       For the foregoing reasons, we grant petition for review and vacate the
deportation order. 5




       5 Unlike in Costello, the criminal conduct giving rise to Okpala’s (1993) aggravated
felony convictions began (in 1990) before his submission (in October 1991) of an application
for naturalization (containing willful misrepresentations) and his subsequent (March 1992)
naturalization. The criminal conduct (tax evasion) for which Costello was convicted (in 1954)
occurred years after (in 1948 and 1949) he was naturalized (in 1925). However, for purposes
of the §1227(a)(2)(A)(iii) deportation statute, Congress has declared citizenship status as of
the date of conviction, rather than the date of the crime, controlling. Thus, we vacate the
deportation order. Nevertheless, we do not decide whether Okpala might still be removed
from the United States (given our rejection of his denaturalization challenges) through
independent removal proceedings instituted on the basis of the willful material
misrepresentations made in his application for naturalization.
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                                       No. 17-60391
EDITH H. JONES, Circuit Judge, concurring:
       My able colleague has written reasonably based on the Supreme Court’s
decision in Costello v. INS, 376 U.S. 120, 84 S. Ct. 580 (1964), and I am
constrained to concur. But under the Costello decision, this is an absurd result.
Okpala was convicted on the same day of serious heroin trafficking charges, in
which he engaged throughout his naturalization proceedings, and also of
violating 18 U.S.C. § 1425, which criminalizes fraudulent procurement of
citizenship, because of exactly the same trafficking. As the government points
out, Okpala’s denaturalization was automatic following the § 1425 conviction,
see 8 U.S.C. § 1451(e). 1         The six-week delay in the court’s entry of a
denaturalization order was mere formality.
       Costello should be distinguishable because of the conjunction of reasons
that exists here between the fraudulent naturalization and the heroin
convictions.      In Costello, the man’s naturalization fraud concerned his
misstatement of his occupation in 1925, while the tax evasion crimes leading
to his deportability occurred and were prosecuted over twenty years later.
Thus, the Court addressed the single question “whether this provision applies
to a person who was a naturalized citizen at the time he was convicted of the
crimes, but was later denaturalized.”               376 U.S. at 121, 84 S. Ct. at 581
(emphasis added).           Given such a disconnect between the fraudulent
naturalization and the later crimes, Costello was arguably defensible.




       1 “When a person shall be convicted under section 1425 of title 18 of knowingly
procuring naturalization in violation of law, the court in which such conviction is had shall
thereupon revoke, set aside, and declare void the final order admitting such person to
citizenship, and shall declare the certificate of naturalization of such person to be canceled.
Jurisdiction is conferred on the courts having jurisdiction of the trial of such offense to make
such adjudication.” 8 U.S.C. § 1451(e).
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                                 No. 17-60391
       Here, however, Okpala was not "later" denaturalized. The underlying
crime and naturalization fraud arise from exactly the same facts. Okpala
flouted immigration law by applying for naturalization in October 1991; the
indictment alleges he was participating in drug trafficking crimes from mid-
1990 through 1991. He was dealing heroin while lining up at the immigration
office to amend his status from legal permanent resident to a citizen. The facts
that he secured naturalization in March 1992 before he was convicted in
August 1993 are simply happenstances of official and bureaucratic timing.
And as noted, his denaturalization was concomitant with his conviction. On
these facts, I find it hard to conclude that Okpala’s case involves the “relation
back” doctrine condemned in Costello. Realistically, this is not so much a
“relation back” case as a “relation to” case, since the fraudulent procurement
is based on the same illegality as the drug trafficking perpetrated by the alien.
A person denaturalized on this basis should not be able to claim the protection
of fraudulently obtained United States citizen status.
       Reading Costello to overturn Okpala’s recent deportation means that the
immigration consequences of precisely the same conduct differ for
“naturalized” citizens and non-naturalized aliens solely because of the relative
scheduling of the prosecution and the naturalization proceedings.             The
“naturalized” aliens will require two steps before they may be processed out of
this   country—denaturalization     followed    by   a     separate   deportation
proceeding—whereas aliens face the single remedy of deportation proceedings.
Thus, Okpala (who has been deported) may return to the United States as a
“legal permanent resident,” only to face further deportation or inadmissibility
proceedings based on his heroin trafficking convictions.
       Because the Supreme Court wrote broadly in Costello, it imposed this
illogical result.
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