### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 60391

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”) affirm ing the i mmigration judge’s (“IJ”) de portation 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

. United States Court of Appeals Fifth Circuit 

### FILED November 15, 2018 Lyle W. Cayce Clerk Case: 17-60391 Document: 00514724538 Page: 1 Date Filed: 11/15/2018No. 17

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2 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 marria ge to a United States citizen. H e was naturalized as a citizen on March 6, 1992. On Octo ber 25, 1993, Okpala was convicted of heroin conspiracy, distribution of heroin, importation of heroin, procuring citizenship unlawfully, and making false statements. His conviction s

were affirmed on direct appeal and the Supreme Court denied certiorari. U

nited 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- 9349, 1997 WL 154636, at * 1 (11th Cir. 1997) (unpublished), cert.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 na turalization 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 conviction s , this was false. The Department of Homeland Security (“DHS”) issu ed 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. B ecause Okpala was in the custody of the United States Bu reau 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 pro ceedings to the Immigration Court in Oakdale, Louisiana, where Okpala was detained. The motion w as granted on January 21, 2016.

1 Okpala was remove d to Nigeria on August 29, 2017 and is no longer in the United States. Case: 17-60391 Document: 00514724538 Page: 2 Date Filed: 11/15/2018No. 17

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3 Okpala moved to termin ate his deportation proceedings. He argued that the order revoking naturalization was invalid and that he was a United States citizen. He initially concede d 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 t he 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 mo tion to ter minate 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 t hat the heroin

- related convictions were aggravated felonies that con stituted violation s of a law rela ting to a controlled substance. Okpala filed a motion to reconsider the May 31, 2016 order and a second motion to termina te 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 motion s 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 conviction s , so he was not an alien under the general deportation statutes. He also conten ded that the denaturalization order was void for failure to comply with procedural and substantive provisions; the record of the 1993 conviction s was untimely and lacked foundation; the DHS did not submit a “nonpoisonous” jury verdict of the 1993 convictio n s ; the 1993 conviction s constituted in absentia conviction s and did not attain a substantial degree of finality; the instant removal proceeding Case: 17-60391 Document: 00514724538 Page: 3 Date Filed: 11/15/2018No. 17

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4 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

con victed 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 deport ation 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 recommendati on 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 consider ed those contentions. As Okpala failed to identify any specific action by the IJ resulting in actual prejudice, t he 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 , 82 9 F.3d 379, 383 (5th Cir. 2016)

. Th e BIA’s conclusions of law are reviewed de novo. Hernandez

- De La Cruz v. Lynch , 819 F.3d 784, 7 85

– 86 (5th Cir. 2016). If “a conclusion embodies [the BIA’s] interpretation of an ambiguous provision of a statute that it administers,” we Case: 17-60391 Document: 00514724538 Page: 4 Date Filed: 11/15/2018No. 17

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5 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). N ever theless , we “may reverse a decision that was deci ded 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 be caus e he was a naturalized citizen at the time of his conviction s
. 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

. T he 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 ad dressed 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 misrepresentation s 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 h is occupation was “real estate” wh en in fact he was a “bootlegger.” Costello , 365 U.S. at 270

. In 1961, “the Case: 17-60391 Document: 00514724538 Page: 5 Date Filed: 11/15/2018No. 17

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6 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 read s 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 c rimes 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 wh en he was a naturalized citizen. ” Id. at 122. I t 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 “a n 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 dep ortation proceedings as an alien because of his ab initio denaturalization. Like Costello, Okpala w as 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 offense s to deportation

. Costello is not

2 This section, 241(a) of the Immigration and Nationality Act (“INA”), is located today at 8 U.S.C. § 1227(a)(2)(A)(ii). Case: 17-60391 Document: 00514724538 Page: 6 Date Filed: 11/15/2018No. 17

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7 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 natu ralized 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 naturalizatio n of such person to be canceled.” 8 U.S.C. § 1451(e). The language of this statu t e 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 un merit orious

.

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

. § 1 01(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. M atter 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 deportati on provision is status

- neutral

–– which is not at issue here. See Costello , 376 U.S. at 124

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8 Okpala additionally argue s that the doctrine s 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. T he DHS commenced deportation proceedings in January 1994 with the issuance of an Order to Show Cause. Because Okpala was in the custody of the B ureau of Prisons serving his criminal sentence, the immigration proceedings were closed in May 1995 and w ere not recalenda red 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. T he Fifth Amendment’s Due Process Clause protects individuals in removal proceedings

. Manzano

- Garcia v. Gonzales , 413 F.3d 462, 470 (5th Cir.
20 05). 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 outc ome of the proceedings. Ogunfuye v. Holder, 610 F.3d 303, 306

– 07 (5th Cir. 2010); Anwar , 116 F.3d at 144

– 45. A ssuming without deciding a due process violation occurred , Okpala fails to show that the outcome of the proceedings would have been different if h e 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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9 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 denatural ization was mandated by sta tute, 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 15463 6, 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 Octob er 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 w as 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. Ne vertheless, 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 ma de in his application for naturalization. Case: 17-60391 Document: 00514724538 Page: 9 Date Filed: 11/15/2018N o

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10 EDITH H. JONES, Circuit Judge, concurring : My able colleague has written reason ably based on the Supreme Court’ s decision in Costello v. INS , 3 76 U.S. 120, 84 S. Ct. 580 (1964), and I am constrained to concur

. But u nder 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 procee dings, and also of violating 18 U.S.C. § 1425, which criminalizes fraudulent procurement of citizenship, because of exactly the same trafficking. As th e govern ment 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 o f the co njunction of reasons that exists here between the fraudulent naturalization and the heroin

conv ictions. In Costello , the man’ s natu ralization 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 denatural ized .” 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 adjudicatio n. ” 8 U.S.C. § 1451(e)

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11 Here, however, Okpala was not "later" denaturalized. The underlying crime an d naturalization fraud ari se from exactly the same facts. Okpala flouted immigration law by applyin g for naturalization in October 1991; the indictment alleges he was participating in drug trafficking crimes from mid

1990 through 1991. He was dealing her oin while lining up at the immigration office to amend his status from legal per manent 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 bureaucrat ic timing. And as noted, his denaturalization was con comitant 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 precise ly the same conduct differ for “naturalized” citizens and non

- naturalized aliens solely because of the relative schedu ling 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 s eparate deportation proceeding

— whereas aliens face the single reme d y of deportation proceedings. Thus, Okpala (who has been deported) may re turn 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 S upreme Court wrote broadly in Costello, it imposed this illogical result. Case: 17-60391 Document: 00514724538 Page: 11 Date Filed: 11/15/2018