Matthew John Hylton v. U.S. Attorney General

         USCA11 Case: 19-14825      Date Filed: 03/31/2021   Page: 1 of 15



                        FOR THE ELEVENTH CIRCUIT

                                No. 19-14825

                           Agency No. A079-397-192






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

                                (March 31, 2021)

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and ED CARNES, Circuit


      This petition for review requires us to decide whether a denaturalized alien

is removable as an aggravated felon based on convictions entered while he was an

American citizen. The Board of Immigration Appeals ordered Matthew Hylton
           USCA11 Case: 19-14825      Date Filed: 03/31/2021   Page: 2 of 15

removed as an alien convicted of aggravated felonies after his admission to the

United States. But unlike most aggravated felons facing removal, Hylton was a

citizen when he was convicted. Federal law provides that “[a]ny alien who is

convicted of an aggravated felony at any time after admission is deportable.” 8

U.S.C. § 1227(a)(2)(A)(iii) (emphasis added). By its plain terms, this provision

does not apply to aliens who were citizens when convicted. So its plain meaning

forecloses the Board’s interpretation, and binding precedent, Costello v. Immigr. &

Naturalization Serv., 

376 U.S. 120

(1964), forecloses treating Hylton’s

denaturalization as retroactive for removal purposes. We grant Hylton’s petition

for review, vacate the decision of the Board, and remand for further proceedings.

                                 I. BACKGROUND

         Matthew Hylton was admitted to the United States as a nonimmigrant visitor

from Jamaica in 1993. He became an American citizen on September 16, 2008.

The day of his naturalization ceremony, Hylton completed a form in which he

affirmed that, since his naturalization interview, he had not “knowingly committed

any crime or offense, for which he had not been arrested.” This affirmation was


         Six days before the ceremony, Hylton had robbed a bank. His transgression

did not stay undetected for long. The next year, he pleaded guilty to charges of

armed bank robbery and unlawful transfer of a firearm. 18 U.S.C. §§ 924(h),

         USCA11 Case: 19-14825       Date Filed: 03/31/2021    Page: 3 of 15

2113(a), (d). In 2011, a jury convicted him of obtaining citizenship by fraud.


§ 1425(a). A

district court then revoked his American citizenship.

      In 2018, the Department of Homeland Security initiated removal

proceedings against Hylton. It charged him as removable because he had been

convicted of aggravated felonies. 8 U.S.C. § 1227(a)(2)(A)(iii). Under the

Immigration and Nationality Act, his convictions for armed bank robbery and for

unlawful transfer of a firearm both qualify as aggravated felonies. See


§ 1101(a)(43)(E)–(F); 18

U.S.C. § 16(a); In re Sams, 

830 F.3d 1234

, 1238 (11th

Cir. 2016).

      Hylton moved to terminate the removal proceedings. He argued that he was

not removable in the light of the decision in Costello v. Immigration &

Naturalization Service. 

376 U.S. 120

. In Costello, the Supreme Court held that a

similarly worded ground of removal did not apply to an alien in Hylton’s

position—that is, a person who was a naturalized citizen at the time of his relevant

convictions but was later denaturalized.

Id. at 121, 127–28.

      The immigration judge concluded that Costello was inapposite. He based his

conclusion on a line of decisions from the Board of Immigration Appeals.

According to the Board, Costello grounded its holding on the right of an alien to

seek a judicial recommendation against deportation, so it is not binding in contexts

where such a recommendation is unavailable. The immigration judge also pointed

          USCA11 Case: 19-14825       Date Filed: 03/31/2021     Page: 4 of 15

to factual differences between Hylton’s case and Costello. He denied Hylton’s

motion to terminate the proceedings, sustained the charges of removability, and

ordered Hylton removed to Jamaica.

      The Board dismissed Hylton’s appeal in a single-member decision. It

adopted the immigration judge’s reasoning. And it reiterated that its decisions in

Matter of Rossi, 11 I. & N. Dec. 514 (B.I.A. 1966), and Matter of Gonzalez-Muro,

24 I. & N. Dec. 472 (B.I.A. 2008), control in removal proceedings where there is

no possibility of a judicial recommendation against deportation: in those

proceedings, an alien may be removed for convictions he sustained while he was a

citizen. Hylton petitions for review of the Board’s decision.

                          II. STANDARDS OF REVIEW

      We review only the decision of the Board of Immigration Appeals, except to

the extent that the Board adopts the opinion of the immigration judge. Kazemzadeh

v. U.S. Att’y Gen., 

577 F.3d 1341

, 1350 (11th Cir. 2009). We review questions of

statutory interpretation de novo, but “[i]f the statute is . . . ambiguous with respect

to the specific issue, we afford some level of deference to the Board’s decision and

evaluate whether it permissibly construed the statute.” Hincapie-Zapata v. U.S.

Att’y Gen., 

977 F.3d 1197

, 1200 (11th Cir. 2020) (internal quotation marks

omitted). “We afford Chevron deference to the Board’s precedential decisions,”

          USCA11 Case: 19-14825       Date Filed: 03/31/2021    Page: 5 of 15

including single-judge decisions that “rest[] on precedential authority from the





       “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). If this provision applies to

aliens who were citizens at the time of their predicate convictions, that application

must follow from at least one of two possible bases. The first basis would be that

the text of the provision supports the Board’s reading, either unambiguously or

based on Chevron deference. The second would be that Hylton’s denaturalization

operated retroactively to negate his earlier citizenship. We consider and reject each

possibility in turn.

     A. The Plain Meaning of Section 1227(a)(2)(A)(iii) Excludes Aliens Who
                  Were Citizens at the Time of Their Convictions.
       “As a general rule, an agency’s interpretation of a statute which it

administers is entitled to [Chevron] deference if the statute is silent or ambiguous

and the interpretation is based on a reasonable construction of the statute.” Sanchez

Fajardo v. U.S. Att’y Gen., 

659 F.3d 1303

, 1307 (11th Cir. 2011). At the first step

of Chevron, we evaluate whether Congress has written clearly. Barton v. U.S. Att’y


904 F.3d 1294

, 1298 (11th Cir. 2018). If it has not, then we consider, at the

second step, the permissibility of the agency’s reading of the statute. See

id. at


But if Congress has written clearly, then our inquiry ends and “we must give

          USCA11 Case: 19-14825        Date Filed: 03/31/2021    Page: 6 of 15

effect to the unambiguously expressed intent of Congress.”

Id. at 1298


quotation marks omitted).

      To determine whether a statute has a plain meaning, we ask whether its

meaning may be settled by the “traditional tools of statutory construction.”

Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 

467 U.S. 837

, 843 n.9 (1984).

These tools encompass our “regular interpretive method,” Gen. Dynamics Land

Sys., Inc. v. Cline, 

540 U.S. 581

, 600 (2004), including the canons of construction.

We conclude that the canons make the meaning of section 1227(a)(2)(A)(iii)


      Begin with the prior-construction canon. That canon establishes that “[i]f a

statute uses words or phrases that have already received authoritative construction

by the jurisdiction’s court of last resort, . . . they are to be understood according to

that construction.” Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts § 54, at 322 (2012). “When Congress use[s] the

materially same language in [a more recent enactment], it presumptively [is] aware

of the longstanding judicial interpretation of the phrase and intend[s] for it to retain

its established meaning.” Lamar, Archer & Cofrin, LLP v. Appling, 

138 S. Ct.


, 1762 (2018).

      Decades before Congress adopted what is now section 1227(a)(2)(A)(iii),

the Supreme Court evaluated whether a materially identical provision—authorizing

          USCA11 Case: 19-14825        Date Filed: 03/31/2021    Page: 7 of 15

the removal of an alien who was convicted of multiple crimes involving moral

turpitude—applied to an alien who was a citizen at the time of his convictions.

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7344(a), 102 Stat. 4181,


Costello, 376 U.S. at 121

–28. The moral-turpitude provision read, “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[.]” 

Costello, 376 U.S. at 121

(internal quotation marks omitted).

       Costello identified two features of this language as key to its meaning. These

features distinguished the provision from an earlier removal ground that targeted

violators of the Espionage Act of 1917, which the Court had construed to apply to

aliens regardless of their status when convicted.

Id. at 122–23.

Unlike the earlier

ground, the moral-turpitude provision “employ[ed] neither a past tense verb nor a

single specific time limitation.”

Id. at 124.

In other words, it referred to an alien

who “is convicted,” not to aliens who “have been” convicted.

Id. at 121, 123

(internal quotation marks omitted). And it did not specify application to

convictions that occurred after a particular date. Id at 121.

       Congress retained these two features when it adopted the aggravated-felony

provision. This provision too refers to an “alien who is convicted.” 8 U.S.C.

§ 1227(a)(2)(A)(iii) (emphasis added). And it likewise does not contain a date




          USCA11 Case: 19-14825       Date Filed: 03/31/2021     Page: 8 of 15

      The two provisions use materially the same language, despite slight

differences. The provision that governs Hylton’s petition renders deportable “[a]ny

alien who is convicted of an aggravated felony at any time after admission,” while

the provision from Costello applied to “[a]ny alien . . . who . . . at any time after

entry is convicted of two crimes involving moral turpitude.” Id.; 

Costello, 376 U.S.

at 121

. But we do not see how these slight differences alter the category of aliens

affected by these provisions.

      Because Congress imported previously interpreted language when it added

the removal ground for aggravated felons, the analysis in Costello informs our

reading of the newer provision. Costello acknowledged that, read alone, the

language was susceptible to two “possible readings”; it could be read to “permit[]

deportation only of a person who was an alien at the time of his convictions” or to

“permit[] deportation of a person now an alien who at any time after entry has been

convicted of two crimes, regardless of his status at the time of the convictions.”

Costello, 376 U.S. at 124

. But after applying the ordinary rules of statutory

interpretation, the Court concluded that the provision could not be applied against

an alien who was a citizen at the time of his convictions.

Id. at 126–28.

      Two rules of interpretation were independently dispositive in Costello. First,

under the then-existing scheme, a deportation ordered under the moral-turpitude

provision would be cancelled if the court that issued the convictions made a

          USCA11 Case: 19-14825        Date Filed: 03/31/2021    Page: 9 of 15

judicial recommendation against deportation within 30 days of issuing its sentence.

Id. at 126;

see 8 U.S.C. § 1251(b)(2) (1964). Because a citizen would not be

eligible for this recommendation, that form of relief would be unavailable to aliens

who were naturalized citizens when convicted but were later denaturalized.

Costello, 376 U.S. at 127

. Second, in the alternative, the Court was “constrained by

accepted principles of statutory construction . . . to resolve [any remaining] doubt

in favor of the petitioner,” in the light of the stakes for an alien facing removal.


at 128.

      Taken together, the prior-construction canon counsels in favor of reading

section 1227(a)(2)(A)(iii) like Costello read the moral-turpitude provision.

Congress adopted the provision against the background of Costello, so we

understand Congress to have adopted the limitation identified in Costello. See

Scalia & Garner, Reading Law § 54, at 326. This presumption has special force

because Costello and this appeal concern the same question, cf. Lightfoot v.

Cendant Mortg. Corp., 

137 S. Ct. 553

, 563 (2017), and involve provisions in the

same field, Scalia & Garner, Reading Law § 54, at 323.

      The presumption of consistent usage also supports reading section

1227(a)(2)(A)(iii) as inapplicable to aliens like Hylton. We presume that “word[s]

or phrase[s] . . . bear the same meaning throughout a text,” and that presumption is

strengthened “the more connection the cited [provision] has with the [provision]

         USCA11 Case: 19-14825       Date Filed: 03/31/2021   Page: 10 of 15

under consideration.”

Id. § 25, at

170, 173. Congress enacted the provision at issue

to follow immediately the provision from Costello. See Anti-Drug Abuse Act

§ 7344(a); 8 U.S.C. § 1251(a)(4) (1988). The two provisions remain in consecutive

subsections of the current Code. See 8 U.S.C. § 1227(a)(2)(A)(ii)–(iii) (2018);

Okpala v. Whitaker, 

908 F.3d 965

, 969 & n.2 (5th Cir. 2018). It would be odd if, in

two consecutive subsections of the Code, which use materially identical language,

the same words were read to mean one thing in the first subsection but another in

the second. All else being equal, we prefer a reading of the second that coheres

with binding precedent as to the first.

      The relevant statutory scheme provides further support for this reading of

section 1227(a)(2)(A)(iii). The relevant scheme is the one in place in 1988, when

the provision was enacted. At that time, an alien could seek relief from removal

under the provision by obtaining a judicial recommendation against deportation.

See United States v. Bodre, 

948 F.2d 28

, 30 (1st Cir. 1991). So the reasoning of

Costello applies with equal force here. If the provision originally could have been

applied against an alien who was a citizen at the time of his convictions, that alien

would have been deprived of a remedy available to all other aliens. And because

“provisions of a text should be interpreted in a way that renders them compatible,”

Scalia & Garner, Reading Law § 27, at 180, we should not “adopt[] a construction

of [the aggravated-felony provision] which would [have], with respect to an entire

         USCA11 Case: 19-14825        Date Filed: 03/31/2021    Page: 11 of 15

class of aliens, completely nullif[ied] a procedure so intrinsic a part of the

legislative scheme,” 

Costello, 376 U.S. at 127


       It makes no difference that the current statutory scheme no longer permits

judicial recommendations against deportation. Congress abolished that form of

relief in 1990. See Immigration Act of 1990, Pub. L. No. 101-649, § 505, 104 Stat.

4978, 5050. But just as we apply a “strong presumption against implied repeals,”

Ray v. Spirit Airlines, Inc., 

767 F.3d 1220

, 1222 (11th Cir. 2014), we apply a

presumption against implied changes to the meaning of a still-in-force statute. “A

clear, authoritative judicial holding on the meaning of a particular provision should

not be cast in doubt . . . whenever a related though not utterly inconsistent

provision is adopted[.]” Scalia & Garner, Reading Law § 55, at 331. If Congress

wanted to alter the scope of the removability grounds, it would have done so


       Applying these canons of construction, we conclude that the meaning of

section 1227(a)(2)(A)(iii) is unambiguous. Although no canon is absolute, the

relevant canons all cut in the same direction, and we must give effect to the clear

expression of Congress. Section 1227(a)(2)(A)(iii) does not make aliens who were

citizens at the time of their predicate convictions removable. And we decline the

government’s invitation to defer to the Board’s contrary reading. “Where, as here,

         USCA11 Case: 19-14825       Date Filed: 03/31/2021   Page: 12 of 15

the canons supply an answer, Chevron leaves the stage.” Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612

, 1630 (2018) (internal quotation marks omitted).

      The government contends that it is dispositive for purposes of the first step

of Chevron that Costello referred to the language at issue as 

ambiguous. 376 U.S.

at 124

–25. But the provision 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. Id.; Robinson v. Shell Oil Co., 519 U.S 337, 341

(1997) (“The plainness or ambiguity of statutory language is determined by

reference to the language itself, the specific context in which that language is used,

and the broader context of the statute as a whole.”). And regardless, a pre-Chevron

recognition of linguistic ambiguity does not necessarily establish ambiguity in the

Chevron sense. United States v. Home Concrete & Supply, LLC, 

566 U.S. 478


488–89 (2012) (plurality op.).

      The Board’s decision likewise rested on misunderstandings of Costello. The

Board asserted that Costello was “primarily predicated” on the importance of the

judicial recommendation against deportation. Rossi, 11 I. & N. Dec. at 515–16. But

Costello identified the immigration rule of lenity as an independent basis for its

holding. 376 U.S. at 128

. When 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. See Nat’l Cable & Telecomms.

         USCA11 Case: 19-14825       Date Filed: 03/31/2021    Page: 13 of 15

Ass’n v. Brand X Internet Servs., 

545 U.S. 967

, 984–85 (2005); see also Sash v.


439 F.3d 61

, 67 n.6 (2d Cir. 2006) (Sotomayor, J.) (explaining that Brand X

creates an exception to the ordinary rule that “Chevron deference will apply prior

to the rule of lenity”). And, setting the rule of lenity aside, the Board put too much

weight on Congress’s elimination of the judicial recommendation against

deportation. We reiterate that that change did not impliedly alter the controlling

construction of the removal provisions. Scalia & Garner, Reading Law § 55, at


       Nor, as the government asserts, did the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 impliedly alter the meaning of section

1227(a)(2)(A)(iii). The government points to an amendment that expanded the

definition of “aggravated felony.” Pub. L. No. 104-208, § 321, 110 Stat. 3009-627.

As codified, the amendment established that “the term”—as in, the new

definition—“applies regardless of whether the conviction was entered before, on,

or after September 30, 1996.” 8 U.S.C. § 1101(a)(43). But we do not see how this

amendment has any bearing on the retroactivity of the aggravated-felony removal

ground. Section 1101(a)(43) did not sub silentio alter other provisions of our

immigration law. See 

Okpala, 908 F.3d at 970


       Finally, the factual distinctions identified by the government and the Board

are immaterial. True enough, there are differences between Costello’s background

         USCA11 Case: 19-14825       Date Filed: 03/31/2021    Page: 14 of 15

and Hylton’s. For example, Costello was an American citizen when he committed

the crimes that became the basis for his removability, and Hylton was an alien. But

Costello makes clear that, because section 1227(a)(2)(A)(iii) refers to an alien who

is convicted of an aggravated felony, we are concerned with the alien’s citizenship

status at the time of conviction, not the time of the 

crime. 376 U.S. at 123

, 125,

127. We may not “‘reinterpret’ the [Supreme] Court’s binding precedent in [the]

light of irrelevant factual distinctions.” Balintulo v. Daimler AG, 

727 F.3d 174

, 190

(2d Cir. 2013).

     B. We May Not Treat Denaturalized Aliens As If They Were Aliens at the
                           Time of Their Convictions.

      We are similarly unpersuaded by the government’s alternative argument as

to why we should deny Hylton’s petition. The government asserts that, because

denaturalization operates ab initio, 8 U.S.C. § 1451(e), it “relates back” to the date

of Hylton’s convictions. So, in its view, we should treat him as if he had been an

alien then. But, as the government acknowledges, Costello squarely rejected this

reading of section 

1451. 376 U.S. at 128

–29. The Supreme Court explained that, if

Congress had wanted denaturalization to have retroactive effect for purposes of

deportation, it should have made that intent explicit.

Id. at 129–30, 132.


only the Supreme Court may overturn its precedents, Costello controls our

resolution of this issue. State Oil Co. v. Khan, 

522 U.S. 3

, 20 (1997); Bryan A.

        USCA11 Case: 19-14825      Date Filed: 03/31/2021   Page: 15 of 15

Garner et al., The Law of Judicial Precedent § 2, at 29 (2016). We may not pretend

that Hylton was an alien all along. 

Okpala, 908 F.3d at 969


                              IV. CONCLUSION

      We GRANT the petition for review, VACATE the decision of the Board,

and REMAND for further proceedings consistent with our opinion.


Add comment

By Tucker

Recent Posts

Recent Comments