`
`PRECEDENTIAL
`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`_____________
`
`No. 20-1778
`_____________
`
`BALJINDER SINGH,
`
`
`
`
`Petitioner
`
`
`
`
`
`
`
`Respondent
`
`
` v.
`
` ATTORNEY GENERAL OF THE UNITED STATES OF
`AMERICA,
`
`
`
`_______________
`
`On Petition for Review of an Order of the
`United States Department of Justice
`Board of Immigration Appeals
`(BIA A072-435-798)
`Immigration Judge: Mirlande Tadal
`_______________
`
`Argued
`January 26, 2021
`
`Before: JORDAN, MATEY, Circuit Judges
`
`
`
`and HORAN,* District Judge.
`
`(Filed: August 31, 2021)
`_______________
`
`
`Gintare Grigaite
`363 Broadway
`Bayonne, NJ 07002
`
`John P. Leschak [ARGUED]
`Leschak & Associates
`180 South Street
`Freehold, NJ 07728
` Counsel for Petitioner
`
`Virginia L. Gordon [ARGUED]
`Aaron D. Nelson
`United States Department of Justice
`Office of Immigration Litigation
`P.O. Box 878
`Ben Franklin Station
`Washington, DC 20044
` Counsel for Respondent
`_______________
`
`OPINION OF THE COURT
`_______________
`
`
`* The Honorable Marilyn Horan, United States District
`Judge for the Western District of Pennsylvania, sitting by
`designation.
`
`
`
`
`
`2
`
`
`
`
`JORDAN, Circuit Judge.
`
`Baljinder Singh achieved what many immigrants to our
`
`country seek: he became a naturalized citizen. Unfortunately,
`he did so through willful misrepresentation, and, as a
`consequence, his citizenship was revoked. Before that
`revocation and while he was still a citizen, he was convicted of
`conspiracy to distribute and possess with intent to distribute
`illegal drugs. That led the government to initiate removal
`proceedings against him, and he was in fact ordered to be
`removed. Singh now petitions for review of that final order of
`removal, arguing that the pertinent statutory provisions, by
`their terms, permit removal only of individuals who were
`“aliens” at the time of their criminal convictions, whereas he
`was a naturalized citizen when convicted. The government
`responds that we must defer to the interpretation given by the
`Board of Immigration Appeals (“BIA”) to those statutes and
`therefore must deny the petition for review. In the alternative,
`the government contends that Singh should be treated as if he
`had never been naturalized and was actually an “alien” at the
`time he was convicted. We disagree with both of the
`government’s arguments and will grant Singh’s petition for
`review.
`
`I.
`
`BACKGROUND
`
`Singh is a native of India who arrived in the United
`States in 1991. Upon arriving without travel documents or
`proof of identity, he falsely claimed that his name was
`Davinder Singh.
` The agency
`then
`responsible
`for
`administering our nation’s immigration laws, the Immigration
`and Naturalization Service (“INS”),
`initiated exclusion
`
`
`
`3
`
`
`
`proceedings against him. Singh failed to appear at his
`scheduled immigration hearing in January 1992, and an
`Immigration Judge (“IJ”) ordered him deported in absentia.
`
`Despite that deportation order, in February 1992, Singh
`filed an asylum application under the name Baljinder Singh.
`While the application was pending, he married a U.S. citizen.
`Singh also petitioned to adjust his status from alien to lawful
`permanent resident but did not disclose his prior immigration
`history and deportation order in his application. In 1998, the
`INS approved his petition, and he received lawful permanent
`resident status.
`
`When Singh later sought naturalization, he again failed
`to disclose his prior immigration history, despite being directly
`asked whether he had ever used other names or lied to gain
`entry to the United States. He falsely answered those questions
`in the negative, and did so under penalty of perjury. Singh’s
`citizenship application was approved, and on July 28, 2006, he
`became a citizen of the United States.
`
`Soon, however, he was in serious trouble with the law.
`In 2011, he pled guilty to conspiracy to distribute and possess
`with intent to distribute heroin, MDMA,1 and marijuana, in
`violation of 21 U.S.C. §§ 846, 841(a)(l), 841(b)(l)(A)(I), and
`
`
`
`1
`3,4-
`for
`short
`MDMA,
`methylenedioxymethamphetamine, is also sometimes called
`“ecstasy” and is a psychoactive drug listed as a schedule I
` Drug Scheduling, U.S. DRUG
`controlled substance.
`ENFORCEMENT ADMIN., https://www.dea.gov/drug-scheduling
`(last visited March 29, 2021).
`
`
`
`4
`
`
`
`841(b)(l)(C). His drug dealing lasted from at least September
`2007 to November 2008.
`
`Several years later, the government filed a complaint to
`revoke Singh’s citizenship in the United States District Court
`for the District of New Jersey, invoking 8 U.S.C. § 1451(a) and
`stating two independent reasons why his citizenship should be
`revoked: first, he illegally procured naturalization because he
`was never lawfully admitted for permanent residence, and
`second, he procured naturalization by concealment of a
`material fact or willful misrepresentation. The government
`subsequently filed a motion for summary judgment. The court
`granted that motion on January 5, 2018, and revoked Singh’s
`citizenship, “order[ing] that the Certificate of Naturalization ...
`issued to Defendant on July 28, 2006 is hereby cancelled.”
`(A.R. at 276.)
`
`The Department of Homeland Security (“DHS”) served
`Singh with a notice to appear in immigration court, charging
`him with removability under 8 U.S.C § 1227(a)(2)(A)(iii) (the
`“aggravated felony provision” of the Immigration and
`Nationality Act (“INA”)) for having been convicted of an
`offense relating to illicit trafficking in controlled substances,
`and under 8 U.S.C § 1227(a)(2)(B)(i) (the “controlled
`substances provision” of the INA) for having been convicted
`of a controlled substances crime. DHS later filed an additional
`charge of removability, saying Singh was removable under the
`aggravated felony provision for having been convicted of a
`felony relating to conspiracy to illicitly traffic controlled
`substances.
`
`Singh responded with a motion to terminate the removal
`proceedings. He argued that he could not be removed under
`
`
`
`5
`
`
`
`the aggravated felony provision because he was a naturalized
`citizen at the time of his conviction, and he said his subsequent
`loss of citizenship could not retroactively make him an “alien.”
`DHS successfully opposed the motion before the IJ, and Singh
`filed a motion to reconsider, which the IJ denied.
`
`The IJ held Singh removable both for having been
`convicted of an aggravated felony as described in 8 U.S.C.
`§ 1101(a)(43)(U), namely conspiracy to commit a controlled
`substances offense, and for having been convicted of a
`controlled substances offense. Singh was therefore ordered to
`be removed to India.
`
`He appealed, but the BIA accepted the IJ’s conclusions
`and dismissed the appeal. This petition followed.
`
`DISCUSSION2
`
`Singh argues that he cannot be removable under the
`aggravated felony or controlled substances provisions of the
`INA because he was a naturalized citizen at the time he was
`
`II.
`
`
`2 The BIA had
`jurisdiction under 8 C.F.R.
`§ 1003.1(b)(3), and we have jurisdiction under 8 U.S.C.
`§ 1252(a), though our jurisdiction to review a final order of
`removal based on the commission of an aggravated felony or a
`controlled substances offense is limited to “constitutional
`claims or questions of law[.]” 8 U.S.C. § 1252(a)(2)(C)-(D).
`We review the BIA’s legal determinations de novo, unless
`Chevron deference applies. Sambare v. Att’y Gen., 925 F.3d
`124, 127 (3d Cir. 2019).
`
`
`
`
`6
`
`
`
`convicted.3 He contends that the only relevant time is the time
`of conviction, and because he was not an “alien” at that time,
`he is not removable under either provision. See 8 U.S.C.
`
`
`3 The aggravated
`felony provision, 8 U.S.C.
`§ 1227(a)(2)(A)(iii), provides:
`
`
`(a) Classes of deportable aliens - Any
`alien (including an alien crewman) in and
`admitted to the United States shall, upon
`the order of the Attorney General, be
`removed if the alien is within one or more
`of the following classes of deportable
`aliens:
`... (2) Criminal offenses (A)
`General crimes ... (iii) Aggravated felony
`- Any alien who is convicted of an
`aggravated felony at any time after
`admission is deportable.
`
`substances provision, 8 U.S.C
`The controlled
`§ 1227(a)(2)(B)(i), provides:
`
`
`(i)
`–
`substances
`(B) Controlled
`Conviction - Any alien who at any time
`after admission has been convicted of a
`violation of (or a conspiracy or attempt to
`violate) any law or regulation of a State,
`the United States, or a foreign country
`relating to a controlled substance (as
`defined in section 802 of Title 21), other
`than a single offense involving possession
`for one’s own use of 30 grams or less of
`marijuana, is deportable.
`
`7
`
`
`
`
`
`
`
`§ 1101(a)(3) (“The term ‘alien’ means any person not a citizen
`or national of the United States.”). Central to Singh’s
`argument is the Supreme Court decision in Costello v. INS, 376
`U.S. 120 (1964), which held that a similarly-phrased
`deportation provision did not apply to a person who was a
`naturalized citizen at the time he was convicted but who was
`later denaturalized for fraud, like Singh. Costello, 376 U.S. at
`121-22.
`
`Singh argues that the BIA erred by declining to follow
`Costello and by instead relying on Matter of Rossi, 11 I. & N.
`Dec. 514 (BIA 1966), and Matter of Gonzalez-Muro, 24 I. &
`N. Dec. 472 (BIA 2008), two decisions in which the BIA
`distinguished Costello even though the respondents were
`naturalized citizens at the time they were convicted of
`deportable offenses, just as Costello was. In addition, Singh
`argues that the BIA erred by saying his circumstances were
`indistinguishable from those of the respondent in Gonzalez-
`Muro, who was a lawful permanent resident during the
`commission of the crimes but a naturalized citizen at the time
`of conviction. Finally, Singh contends that Rossi and
`Gonzalez-Muro conflict with Padilla v. Kentucky, 559 U.S.
`356 (2010), which held that failure to advise a non-citizen
`criminal defendant that pleading guilty may result in
`deportation constitutes ineffective assistance of counsel and
`violates the Sixth Amendment right to counsel.
`
`The government responds that we must defer to the
`BIA’s ruling in this case because it was directly controlled by
`precedential BIA decisions. Waiving any argument based on
`
`
`
`8
`
`
`
`the INA,4
`the
`the controlled substances provision of
`government focuses on the aggravated felony provision and
`says the familiar Chevron rule of deference applies.5 The
`government reasons that the aggravated felony provision is
`ambiguous and the BIA’s interpretation of the provision is
`reasonable, and hence that interpretation is controlling. The
`government also points to the Rossi decision’s reliance on
`United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521
`(1950), which it argues is more analogous to Singh’s
`circumstances than is Costello.
`
`Our analysis of the parties’ conflicting positions
`proceeds in three steps. We first review Costello and
`Eichenlaub, the two Supreme Court decisions interpreting
`whether deportation statutes cover individuals who were
`
`
`4 The government waived any argument as to the
`controlled substances provision by failing to brief it. Khan v.
`Att’y Gen., 691 F.3d 488, 495 n.4 (3d Cir. 2012) (“[A]n issue
`is waived unless a party raises it in its opening brief, and for
`those purposes a passing reference to an issue will not suffice
`to bring that issue before this court.” (quoting Skretvedt v. E.I.
`DuPont DeNemours, 372 F.3d 193, 202-03 (3d Cir. 2004))).
`
` 5
`
` As discussed in greater detail herein, infra section
`II.B., Chevron deference involves a two-step inquiry. At step
`one, we ask whether the statute at issue “is silent or ambiguous
`with respect to the specific issue[.]” Yusupov v. Att’y Gen., 518
`F.3d 185, 198 (3d Cir. 2008) (quoting Chevron, U.S.A., Inc. v.
`Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984)). If the
`statute is ambiguous, we ask, at step two, whether the BIA’s
`interpretation is reasonable. Id.
`
`
`
`
`9
`
`
`
`Applicable Supreme Court precedent.
`
`citizens at the time of conviction but were subsequently
`denaturalized. Next, we discuss whether Chevron deference
`applies. Then, having determined that it does not, we consider
`whether the text of the aggravated felony provision, as
`understood in light of Supreme Court precedent, provides for
`the removal of individuals who were citizens at the time of
`conviction.
`
`A.
`
`The Supreme Court has twice considered whether
`deportation provisions using the term “aliens” apply to
`individuals who were naturalized citizens at the time they were
`convicted of crimes but subsequently were denaturalized for
`having acquired their citizenship through fraud or willful
`misrepresentation. See Costello, 376 U.S. at 128; Eichenlaub,
`338 U.S. at 532. Singh argues that the petitioner in Costello
`was held to be not deportable because he was a citizen when
`convicted, which is precisely his own circumstance. The
`government contends that Costello does not apply because it
`was predicated on a specific legal remedy – a judicial
`recommendation against deportation – that has since been
`abrogated and was never available to Singh. Instead, says the
`government, Singh’s case is akin to Eichenlaub, a case in
`which one-time citizens were deemed deportable.
`
`Eichenlaub is the earlier opinion. In that case, the
`individuals seeking relief were naturalized citizens convicted
`of conspiracy to violate the Espionage Act of 1917.
`Eichenlaub, 338 U.S. at 523. They were subsequently
`denaturalized for procuring their citizenship by fraud. Id. The
`Supreme Court held them deportable under a statute directed
`at “all aliens who since August 1, 1914, have been or may
`
`
`
`10
`
`
`
`hereafter be convicted” of violations of the Espionage Act. Id.
`at 523-27 (quoting Act of 1920, Pub. L. No. 197, 41 Stat. 593).
`The Court said that the plain language of the statute did not
`“limit its scope to aliens who have never been naturalized[,]”
`id. at 528, and that Congress’s decision to not make a
`distinction between aliens who had never been naturalized and
`those who were naturalized but later denaturalized indicated
`the statute “is applicable to all such offenders.” Id. at 530. It
`decided that there were national security implications to the
`case that had to be considered and it also noted that a contrary
`holding would allow a denaturalized alien “to set up a canceled
`fraudulent status as a defense, and successfully ... claim
`benefits and advantages under it.” Id. at 531-32. While ruling
`largely for the government, the Court nevertheless rejected the
`government’s urging to “give a retroactive effect to the
`denaturalization orders[.]” Id. at 529-30. It based its holding
`instead on the interpretation of the plain text of the statute. Id.
`
`In Costello, the Supreme Court addressed a since-
`revised deportation provision which, though focused on crimes
`of moral turpitude, bears important textual similarities to the
`aggravated felony provision before us now. The Court
`considered whether that former section of the INA, 8 U.S.C.
`§ 1251(a)(4), now amended and
`located at 8 U.S.C.
`§ 1227(a)(2)(A)(ii), applied to someone who was a naturalized
`citizen when he was convicted of income tax evasion but who
`was later denaturalized on the ground that his citizenship had
`been acquired by willful misrepresentation. Costello, 376 U.S.
`at 121. Similar to the aggravated felony provision, the “moral-
`turpitude” deportation provision provided that “[a]ny alien in
`the United States ... shall ... be deported who ... at any time
`after entry is convicted of two crimes involving moral
`turpitude[.]” Id. (quoting 8 U.S.C. § 1251(a)(4)).
`
`
`
`11
`
`
`
`
`The Costello Court considered the provision’s statutory
`language, the relevance of Eichenlaub, legislative history, the
`statutory scheme, and the rule of lenity. Id. at 122-28. It held
`that the statute’s present tense verbiage—“is convicted”—and
`the phrase “at any time after entry” did not resolve whether the
`petitioner was subject to removal under the statute at issue. Id.
`at 122, 125 (emphasis added). The Court distinguished
`Eichenlaub, finding it “evident” from the past tense verb in the
`statute at issue there and clear legislative history evincing
`intent to deport “denaturalized citizens along with aliens ... for
`specific crimes involving national security[,]” that deportation
`was in order in that case. Id. at 123-24. None of those
`considerations, however, were implicated by the statute the
`Costello Court faced. Id. at 124.
`
`Because the language and history of the statute did not
`resolve the ambiguity the Costello Court perceived in it,6 the
`Court turned to a specific legal remedy available to the
`
`
`6 The Court specifically referenced the “ambiguity of
`the statutory language” as one conveying two “possible
`readings of the statute[.]” Costello v. INS, 376 U.S. 120, 124-
`25 (1964). It “t[ook] a different view” from the court of
`appeals, which found “no ambiguity ... and no room for
`interpretation or construction.” Id. at 122-23 (citation and
`quotation mark omitted). And it painstakingly distinguished
`the moral-turpitude deportation provision from the statute at
`issue in Eichenlaub, which, in contrast, was viewed by the
`Court “as una[m]biguously authorizing deportation.” Id. at
`123. All of this was, of course, two decades before Chevron
`changed the legal consequences of declaring a statute to be
`ambiguous.
`
`
`
`12
`
`
`
`petitioner to reach its holding. That legal remedy, the judicial
`recommendation against deportation (“JRAD”), allowed a
`sentencing court to recommend that an alien should not be
`deported even if statutorily eligible for that consequence. Id.
`at 126. The Court reasoned that, if the deportation provisions
`of the statute at issue “were construed to apply to those
`convicted when they were naturalized citizens, the protective
`provisions of [the JRAD] would, as to them, become a dead
`letter” because sentencing courts lacked jurisdiction to make a
`JRAD recommendation on behalf of a citizen. Id. at 127. The
`Court said
`it would “hesitate” before adopting
`the
`government’s construction of the statute as that interpretation
`would “completely nullify a procedure so intrinsic a part of the
`legislative scheme” for “an entire class of aliens.” Id. at 127-
`28.
`
`
`Then, looking at the rule of lenity,7 the Court continued:
`“If, however, despite the impact of [the JRAD provision], it
`should still be thought that ... the matter [was] in some doubt,
`we would nonetheless be constrained by accepted principles of
`statutory construction in this area of the law to resolve the
`doubt in favor of the petitioner.” Id. at 128 (emphasis added).
`The magnitude of the penalty of deportation warranted
`application of the rule of lenity, thus giving the benefit of
`ambiguity to the petitioner, not the government. The Court
`declared, “we will not assume that Congress meant to trench
`on [the petitioner’s] freedom beyond that which is required by
`
`
`7 The rule of lenity in the immigration context is “the
`longstanding principle of construing any lingering ambiguities
`in deportation statutes in favor of the alien.” I.N.S. v. Cardoza-
`Fonseca, 480 U.S. 421, 449 (1987) (citations omitted).
`
`
`
`13
`
`
`
`the narrowest of several possible meanings of the words used.”
`Id. (quoting Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948)).
`
`The Costello Court also rejected the government’s
`alternative argument, under which the petitioner’s citizenship
`would be considered a nullity from the start because 8 U.S.C.
`§ 1451(a) provides that an order of denaturalization “shall be
`effective as of the original date” of the naturalization order. Id.
`at 128-29 (citing 8 U.S.C. § 1451(a)). The government
`contended that the cancellation of the petitioner’s certificate of
`naturalization related back to the year of his original
`naturalization, thus making him an alien at the time he was
`convicted. Id. at 129. The Court called the “relation-back
`concept ... a legal fiction at best,” and found no indication in
`the text or history of § 1451(a) that Congress intended it to
`apply to “the general deportation provisions of the [INA].” Id.
`at 129-30. Instead, the Court explained that Congress codified
`existing case law that denaturalization related back to the date
`of naturalization “for the purpose of determining rights of
`derivative citizenship,” not for “construing a deportation
`statute.” Id. The relation-back “fiction” had been effectively
`rejected in Eichenlaub, and the Court adhered to that. Id. at
`130.
`
`
`B. We need not defer to the BIA’s decision under
`
`Chevron.
`
`We next consider whether we must defer to the BIA’s
`ruling in Singh’s case. Although we do not afford Chevron
`deference to nonprecedential BIA decisions, see Da Silva v.
`Att’y Gen., 948 F.3d 629, 633 (3d Cir. 2020), the government
`argues that the BIA’s decision interpreting the aggravated
`felony provision in Singh’s case is entitled to deference
`
`
`
`14
`
`
`
`because it is directly controlled by the BIA’s precedential
`decisions in Rossi and Gonzalez-Muro. We agree at least that
`the Chevron framework is applicable to determine whether
`deference is warranted.8 See Mejia-Castanon v. Att’y Gen.,
`931 F.3d 224, 231, 236 (3d Cir. 2019) (deferring to a
`nonprecedential BIA decision that relied on a precedential BIA
`decision). But Singh prevails within the context of the two-
`step Chevron inquiry.
`
`
`8 There are certain situations in which Chevron
`deference is not applicable as a threshold matter, but Singh’s
`arguments do not persuade us that this is one. He first argues
`that we should not defer to the agency because Costello
`controls our analysis. But the Supreme Court declared that “a
`court’s prior interpretation of a statute ... override[s] an
`agency’s interpretation only if the relevant court decision held
`the statute unambiguous.” Nat’l Cable & Telecomms. Ass’n v.
`Brand X Internet Servs., 545 U.S. 967, 984 (2005). Because
`that question turns on whether the prior case viewed the statute
`as delegating gap-filling power to the agency through
`ambiguous language, it is better suited for discussion at the first
`step of Chevron. See United States v. Home Concrete &
`Supply, LLC, 566 U.S. 478, 488-89 (2012).
`Nor are we persuaded by Singh’s remaining arguments
`that the government waived the application of Chevron for
`failure to raise it previously or that this case implicates such an
`“extraordinary” issue that Congress would not have delegated
`it to an agency. Cf. King v. Burwell, 576 U.S. 473, 485-86
`(2015) (declining to defer where the interpretation of
`Affordable Care Act’s tax credit provision “involv[ed] billions
`of dollars in spending each year and affect[ed] the price of
`health insurance for millions of people”).
`
`
`
`
`15
`
`
`
`1.
`
`Chevron Step One
`
`The first step of the Chevron inquiry requires us to ask
`whether the statute is ambiguous as to Singh’s removability.
`Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir. 2008). If
`Congress did not leave the statute ambiguous as to the specific
`issue under consideration, we do not defer to the agency’s
`interpretation. Id. “In discerning congressional intent, we look
`first to the plain text of the statute.” Cazun v. Att’y Gen., 856
`F.3d 249, 255 (3d Cir. 2017).
`
`The aggravated felony provision provides:
`
`(a) Classes of deportable aliens - Any alien
`(including an alien crewman) in and admitted to
`the United States shall, upon the order of the
`Attorney General, be removed if the alien is
`within one or more of the following classes of
`deportable aliens: ... (2) Criminal offenses (A)
`General crimes ... (iii) Aggravated felony - 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). The INA defines the term
`“alien” to mean “any person not a citizen or national of the
`United States.” 8 U.S.C. § 1101(a)(3). As someone who was
`a naturalized citizen at the time of his conviction, Singh argues
`that the aggravated felony provision unambiguously excludes
`him, as Congress limited the reach of that provision to those
`who were aliens at the time of conviction. The government
`contends that, to the contrary, the aggravated felony provision
`is ambiguous because
`it allows
`for
`two plausible
`interpretations: one applying to any person who was an alien
`
`
`
`16
`
`
`
`at the time of conviction for the removable offense, and the
`other applying to any person who is now an alien, regardless
`of his or her citizenship status at the time of conviction for the
`offense.
`
`The government’s position requires some suspension of
`disbelief. After all, the statute is expressly directed at “aliens,”
`and one who is a citizen is, by definition, not an alien. It would
`seem there is no ambiguity there. The natural reading of the
`passive voice, present tense verb (“[a]ny alien who is
`convicted”) indicates it is important that citizenship status be
`assessed as of
`the
`time of conviction.
` 8 U.S.C.
`§ 1227(a)(2)(A)(iii). The Supreme Court’s distinguishing of
`the Eichenlaub statute’s past tense verb buttresses that
`interpretation, since aliens who “have been” convicted need
`not have been aliens at the time of conviction to fit within that
`linguistic scope. Costello, 376 U.S. at 123. And for the
`reasons explained in Costello, the phrase “at any time after
`admission” would not violate
`the presumption against
`superfluity if the statute required the individual facing removal
`to have been an alien at the time of conviction, as it could be
`read to permit the removal of aliens who were not originally
`excludable but were convicted after admission. Id. at 125; 8
`U.S.C. § 1227(a)(2)(A)(iii).
`
`In addition, “‘our duty to construe statutes, not isolated
`provisions,’ means that definitions in other parts of the INA
`may also shed light on what Congress envisioned[.]” Si Min
`Cen v. Att’y Gen., 825 F.3d 177, 193 (3d Cir. 2016) (quoting
`Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 568 (1995)). We
`“‘normally’ give ‘identical words and phrases within the same
`statute … the same meaning,’” id. (quoting Powerex Corp. v.
`Reliant Energy Servs., Inc., 551 U.S. 224, 232 (2007)
`
`
`
`17
`
`
`
`(alteration in original)), and the corollary of that canon is
`equally true: parallel provisions in the same statute utilizing
`different words suggest differing meanings. Russello v. United
`States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes
`particular language in one section of a statute but omits it in
`another section of the same Act, it is generally presumed that
`Congress acts intentionally and purposely in the disparate
`inclusion or exclusion.” (alteration in original) (citations
`omitted)). Thus, when we see, in contrast to the phrase “is
`convicted” in the aggravated felony provision, 8 U.S.C.
`§ 1227(a)(2)(A)(iii), the use of the past tense “has been
`convicted” elsewhere in the INA, it lends further support to the
`conclusion that the aggravated felony provision excludes
`Singh. For example, the controlled substances provision
`permits deportation of any alien who “has been convicted[.]” 8
`U.S.C § 1227(a)(2)(B)(i) (emphasis added). Congress’s choice
`of a different verb tense in a parallel deportation provision of
`the INA demonstrates that the aggravated felony provision
`only applies to individuals who were aliens at the time of
`conviction.
`
`All of that would lead us to agree with Singh that, as a
`textual matter, the aggravated felony provision unambiguously
`excludes him from its reach. But our analysis does not end
`there. The government is quick to point out that the Supreme
`Court in Costello held the text of the similarly worded moral-
`turpitude provision was ambiguous. And the government
`contends that we should accept that finding of ambiguity, but
`not Costello’s holding against deportability, as “[a] court’s
`prior judicial construction of a statute trumps an agency
`construction otherwise entitled to Chevron deference only if
`the prior court decision holds that its construction follows from
`the unambiguous terms of the statute[.]” Nat’l Cable &
`
`
`
`18
`
`
`
`Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967,
`982 (2005). That is the sum total of the government’s
`reasoning on this point. It offers no independent textual
`analysis of the aggravated felony provision but simply relies
`on Costello’s reference to ambiguity in the moral-turpitude
`provision. It likes that much of Costello, but only that much.
`And it is true that the two removal provisions have similar
`wording and identical purposes—describing what types of
`crimes render aliens removable if the aliens are convicted.
`
`We thus find ourselves in the difficult position of
`looking at statutory text that seems plain to us but is very
`similar to language declared by the Supreme Court to be
`ambiguous, although that declaration came long before
`Chevron
`imbued
`the notion of ambiguity with
`the
`transformative power it now has. To utter the word
`“ambiguous”
`today
`is
`to shift authority for statutory
`interpretation from the judicial to the executive branch, which
`makes for quite a large footnote to Marbury v. Madison, 5 U.S.
`137, 177 (1803) (“It is emphatically the province and duty of
`the judicial department to say what the law is.”).
`
`In Hylton v. Attorney General, the United States Court
`of Appeals for the Eleventh Circuit recently faced the
`conundrum created by Costello’s invocation of ambiguity, and
`found its way out by saying, “a pre-Chevron recognition of
`linguistic ambiguity does not necessarily establish ambiguity
`in the Chevron sense.” 992 F.3d 1154, 1160 (11th Cir. 2021).
`For that principle, the court relied on a plurality opinion of the
`Supreme Court in United States v. Home Concrete & Supply,
`LLC, 566 U.S. 478, 488-89 (2012). The Supreme Court said
`there that stare decisis may, in certain circumstances, triumph
`over Chevron deference, and it declined to afford deference to
`
`
`
`19
`
`
`
`statutory
`statutory construction despite
`an agency’s
`ambiguity.9 Id. at 488-90. The Eleventh Circuit took that same
`route in holding that a petitioner in exactly Singh’s position
`was not removable under the aggravated felony provision
`because he was a citizen at the time of conviction. Hylton, 992
`F.3d at 1160-61. It reasoned that the “plain meaning” of the
`aggravated
`felony provision “forecloses
`the
`[BIA’s]
`interpretation, and binding precedent, [Costello], forecloses
`treating Hylton’s denaturalization as retroactive for removal
`
`
`9 The Home Concrete plurality held that a prior pre-
`Chevron case, Colony, Inc. v. Comm’r, 357 U.S. 28, 33 (1958),
`did not “reflect[ ] a post-Chevron conclusion that Congress had
`delegated gap-filling power to the agency.” 566 U.S. at 488-
`89. The plurality acknowledged that the Colony Court stated
`the statutory language at issue was “not ‘unambiguous[,]’” and
`then posited that “[t]he question is whether the Court in Colony
`concluded that the statute left such a gap.” Id. at 488-89
`(quoting Colony, 357 U.S. at 33). It looked to several factors
`to decide that there was no gap for the agency to fill: Colony
`“said that the taxpayer had the better side of the textual
`argument[,]” it viewed the legislative history as demonstrating
`“that Congress had decided the question definitively,” and a
`contrary interpretation “would create a patent incongruity in
`the tax law.” Id. at 489 (citations and internal quotation marks
`removed).
`In an opinion concurring except as to the plurality’s
`discussion relevant to this issue, Justice Scalia viewed Colony
`in a different light, saying that it made “it inescapably clear
`that the Court thought the statute ambiguous[.]” Id. at 494
`(Scalia, J., concurring in part and concurring in the judgment).
`
`
`
`20
`
`
`
`purposes.” Id. at 1156. It thus granted the petition for review.
`Id. at 1161.
`
`We agree with most of that reasoning but have difficulty
`with one key aspect of the decision. We have trouble getting
`past Costello’s emphasis on the ambiguity of the nearly
`identical statutory language. See Costello, 376 U.S. at 124
`(explaining that the parties’ differing interpretations “are both
`possible readings of the statute”); see also Ho
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