“No Relation-Back” Deportation: Sixth Circuit Holds §1227(a)(2)(E)(i) Inapplicable to Crimes Committed while an Alien Was a Naturalized Citizen

1. Introduction

In Elfido Gonzalez Castillo v. Pamela Bondi, the United States Court of Appeals for the Sixth Circuit confronted a deceptively simple, but practically consequential, statutory question: Can the Government deport a denaturalised individual for a conviction obtained while he was a United States citizen? The petitioner, Mr Gonzalez Castillo, obtained citizenship by fraud, sexually abused his six-year-old niece, pleaded guilty, and was later stripped of his citizenship. The Department of Homeland Security (DHS) then sought to remove him under 8 U.S.C. § 1227(a)(2)(E)(i), the “child-abuse” ground of deportability.

Chief Judge Sutton, writing for a unanimous panel, answered no. Employing textual analysis reinforced by Costello v. INS (1964) and allied interpretive canons, the Court ruled that §1227(a)(2)(E)(i) reaches only those who were aliens at the time of conviction. Because Mr Gonzalez Castillo was then (albeit fraudulently) a citizen, the statute does not apply. Judge Thapar concurred separately, urging the Supreme Court to revisit Costello but acknowledging its binding force.

2. Summary of the Judgment

• Holding: The phrase “Any alien who … is convicted” in §1227(a)(2)(E)(i) excludes individuals whose predicate conviction occurred while they held U.S. citizenship, even if that citizenship was later revoked for fraud.
• Result: Petition for review granted; order of removal vacated; case remanded.
• Key Rationales:
  • Plain-language reading of “alien” and present-tense “is convicted.”
  • Prior-construction canon: Congress copied language previously construed in Costello; therefore, the prior meaning persists.
  • Contrast with neighbouring provisions using “has been convicted” or “has been” indicates deliberate verb-tense choice.
  • Rule of lenity for deportation statutes would resolve any residual ambiguity in the non-citizen’s favour.
  • Relation-back clause in 8 U.S.C. § 1451(a) does not override the deportation statute—Costello remains controlling.

3. Analysis

3.1 Precedents Cited and Their Influence

• Costello v. INS, 376 U.S. 120 (1964) – The cornerstone precedent. It interpreted similar “is convicted” language in the moral-turpitude ground and held that post-naturalisation convictions do not trigger deportation. The Sixth Circuit applied the prior-construction canon to extend this reading to the child-abuse ground adopted in 1996.
• United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521 (1950) – Distinguished. That statute used past-tense (“have been convicted”) and addressed wartime espionage; thus its broader reach did not control the present case.
• Singh v. Attorney General, 12 F.4th 262 (3d Cir. 2021) & Hylton v. U.S. Attorney General, 992 F.3d 1154 (11th Cir. 2021) – Sister-circuit authority interpreting the aggravated-felony provision (“is convicted”) the same way.
• Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) – Cited for the modern instruction to adopt the “best reading” of statutory text, independent of Chevron deference.

3.2 Legal Reasoning

1. Textual Focus: Congress defined “alien” as a “person not a citizen” (§1101(a)(3)); the use of present tense—“is convicted”—suggests simultaneity: the person must be an alien at the moment of conviction.
2. Structural Comparison: Adjacent grounds in §1227 use past-perfect constructions (“has been convicted” or “has been a drug abuser”). The variance confirms deliberate drafting, not sloppy grammar.
3. Prior-Construction Canon: Where Congress lifts language from a statute interpreted by the Supreme Court, courts presume retention of that interpretation absent contrary intent. Here, Congress imported Costello’s wording into the 1996 child-abuse ground without alteration.
4. Rule of Lenity/Deportation Canon: Even if ambiguity lingered, deportation statutes are construed “in favor of the alien.”
5. Rejection of “Relation-Back” Theory: Section 1451(a) makes denaturalisation “effective” from the original date for derivative-citizenship purposes, but Costello held that it does not rewrite the individual’s status for deportability analyses. The Sixth Circuit, bound by Supreme Court precedent, declined to expand §1451(a).
6. Purposivist Arguments Rebuffed: Government’s policy appeal to the 1996 Act’s child-protection purpose cannot override clear text. Courts honour legislative bargains, not free-floating objectives.

3.3 Likely Impact

• Within the Sixth Circuit: Immigration judges and the Board must dismiss removal charges grounded in any §1227 provision employing the “is convicted” formulation when the conviction occurred during citizenship, unless Congress amends the language.
• National Momentum: The ruling aligns the Sixth with the Third and Eleventh Circuits, deepening a de facto consensus. Absent circuit conflict, Supreme Court review is less likely, but Judge Thapar’s concurrence invites reconsideration of Costello.
• Government Strategy: DHS may pivot to alternative removal grounds—e.g., fraud at time of admission (§1227(a)(1)(A)), or fresh criminal conduct—rather than relying on post-naturalisation convictions.
• Legislative Signals: Congress could amend §1227 to say “has been convicted” of child abuse, or expressly apply relation-back language if it wishes to reach this class of offenders.
• Chevron’s Demise: Because Loper Bright (2024) curtailed agency deference, textual disputes like this will increasingly be resolved by courts, not the BIA. The decision exemplifies that trend.

4. Complex Concepts Simplified

• Relation-Back Doctrine: A legal rule that treats an event (here, revocation of citizenship) as though it occurred at an earlier date (the original naturalisation). Think of it as a legal “time machine.”
• Prior-Construction Canon: If Congress borrows wording that courts have previously interpreted, courts assume Congress meant the same interpretation. Imagine inheriting house rules—if Mom already said “Lights out means 10 p.m.,” adding the same phrase to a later rule keeps the 10 p.m. meaning.
• Rule of Lenity / Deportation Canon: When a statute affecting liberty (criminal or deportation) is genuinely ambiguous, the benefit of the doubt goes to the individual, not the Government.
• Present vs. Present-Perfect Tense:
  • “is convicted” = at that very moment.
  • “has been convicted” = at any point in the past and possibly continuing consequences.
  Congress’s verb choice changes who is caught in the statute’s net.
• Derivative Citizenship: Citizenship automatically received by a child because of a parent’s status, not through the child’s own application.

5. Conclusion

Gonzalez Castillo v. Bondi cements, within the Sixth Circuit, a textual limitation on the Government’s power to deport denaturalised offenders for crimes committed during their brief (even fraudulent) tenure as citizens. By steadfastly applying Costello and interpretive canons, the Court prioritised statutory text over policy arguments and agency preferences. The decision not only shields Mr Gonzalez Castillo from immediate removal but also signals to Congress and the Supreme Court that any broader deportation authority must come through clearer language or higher-court revision of longstanding precedent.

Whether the Supreme Court will revisit Costello—as Judge Thapar urges—or whether Congress will re-draft §1227 remains uncertain. For now, the case stands as a robust reminder that in statutory interpretation, words (and verb tenses) matter.