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”) 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. 

United States Court of Appeals

Fifth Circuit

FILED

November 15, 2018

Lyle W. Cayce

Clerk

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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(unpublished), cert.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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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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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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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 

 

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).

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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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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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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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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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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 mid1990 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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