“Citizen-at-Conviction” Shield: The Sixth Circuit Re-affirms Limits on § 1227 Child-Abuse Removability After Denaturalization

Introduction

Elfido Gonzalez Castillo, a Mexican national who had fraudulently obtained U.S. citizenship, was convicted in Maryland of sexually abusing his six-year-old niece. Years later the United States revoked his citizenship and sought to remove him under 8 U.S.C. § 1227(a)(2)(E)(i), the “child-abuse” ground of deportability that applies to “[a]ny alien who at any time after admission is convicted of a crime of … child abuse.” Both the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) ordered his deportation. When the case reached the Sixth Circuit, however, the panel—Chief Judge Sutton writing, joined by Judges Clay and Thapar—held that because Gonzalez was a citizen when he was convicted, § 1227(a)(2)(E)(i) does not reach him, notwithstanding his later denaturalization.

Judge Thapar added a forceful concurrence, acknowledging that Costello v. I.N.S. (1964) compels this outcome, but urging the Supreme Court to revisit what he views as an “absurd” precedent that rewards immigration fraud and creates doctrinal anomalies.

Summary of the Judgment

The Sixth Circuit granted Gonzalez’s petition for review, vacated the removal order, and remanded.
Key holding: § 1227(a)(2)(E)(i) does not apply where the predicate child-abuse conviction occurred while the individual was a U.S. citizen, even if that citizenship is later cancelled for fraud.
The court relied heavily on the Supreme Court’s interpretation of nearly identical language in Costello v. I.N.S., the prior-construction canon, textual analysis of the present-tense verb “is convicted,” and the rule of lenity for deportation statutes.
The government’s attempt to invoke the “relation-back” clause in 8 U.S.C. § 1451(a) was rejected on the ground that Costello already refused to apply that fiction in the deportation context.

Analysis

A. Precedents Cited and Their Influence

Costello v. INS, 376 U.S. 120 (1964)
The cornerstone. Costello interpreted the phrase “any alien who … is convicted” in the moral-turpitude deportation ground to exclude convictions that occurred while the person was a citizen. Because the 1996 child-abuse ground uses parallel language, the Sixth Circuit applied the prior-construction canon: Congress is presumed to have incorporated Costello’s reading when re-using the same phrasing.
Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)
Quoted for the “best reading” approach to statutory interpretation after the demise of Chevron. Reinforces the primacy of text.
United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521 (1950)
The government’s chief precedent; rejected as distinguishable because that statute used the past tense (“have been convicted”) and addressed a narrow category (Espionage Act violations).
Circuit cases following Costello: Singh (3d Cir. 2021), Hylton (11th Cir. 2021), Okpala (5th Cir. 2018), and an earlier Sixth Circuit decision (Brancato, 1956) all favor the petitioner’s position.

B. Legal Reasoning of the Court

Plain Text: The phrase “alien … who … is convicted” uses the present tense. Because “alien” is statutorily defined as “not a citizen,” the court reads the provision as triggered only when the person holds alien status at the moment of conviction.
Structural Contrast: Neighboring subsections of § 1227 use past-perfect forms (“has been convicted,” “has been an abuser”). Congress knew how to write a broader temporal reach and did not do so here.
Prior-Construction Canon: Congress duplicated Costello’s language in 1996 without alteration; courts must assume it intended the earlier judicial gloss to carry forward.
Rule of Lenity in Deportation: Even if ambiguity existed, interpretive norms require construction in favor of the non-citizen because deportation is “drastic.” This provides a tie-breaker.
Rejection of “Relation-Back” Theory: Section 1451(a) deems a denaturalization order “effective as of” the original date, but Costello limited that fiction to derivative-citizenship contexts, not removability. Congress’s repeal of a now-irrelevant sentencing-judge recommendation clause in 1990 did not override Costello; any change must be express.

C. Impact of the Decision

Creates binding precedent within the Sixth Circuit that denaturalized individuals cannot be removed under any § 1227 ground that requires alien status at the time of conviction.
Deepens existing intercircuit harmony (Third, Fifth, Eleventh, and now Sixth). No circuit currently reads § 1227’s present-tense provisions to cover citizen-at-conviction cases.
Signals to Congress that, if broader removability is desired, statutory language must be rewritten (e.g., “has ever been convicted”).
Sets the stage for potential Supreme Court review: Judge Thapar’s concurrence invites re-examination of Costello and of how § 1451(a) should interact with deportability statutes.
Practical effect for DHS: prosecutorial focus may shift to grounds using past-tense phrasing (e.g., aggravated felony “has been convicted”) or to criminal conduct occurring after denaturalization.

Complex Concepts Simplified

Alien: Any person who is not a U.S. citizen or national (8 U.S.C. § 1101(a)(3)).
Denaturalization: Court process that cancels a person’s citizenship because it was obtained illegally or by fraud (§ 1451(a)).
Relation-Back Doctrine: A legal fiction in § 1451(a) stating that when citizenship is revoked, the revocation is effective from the original date of naturalization. After Costello, its use is limited in deportation contexts.
Prior-Construction Canon: If Congress re-uses language that courts have already interpreted, courts presume Congress intends the same meaning.
Rule of Lenity (Deportation Context): Ambiguities in immigration statutes must be resolved in favor of the non-citizen because deportation is a severe sanction.
Present vs. Past-Perfect Tense in § 1227: “Is convicted” = requires alien status at conviction. “Has been convicted” = looks back; alien status at conviction not required.

Conclusion

The Sixth Circuit’s decision cements a textualist interpretation of § 1227(a)(2)(E)(i), ensuring that the government cannot deport a denaturalized individual for past child-abuse convictions unless the person was an alien at the time of conviction. By anchoring its holding in Costello, the court both respects stare decisis and underscores Congress’s responsibility to amend the statute if broader coverage is intended. Judge Thapar’s concurrence highlights the growing discomfort with Costello’s perceived policy distortions, setting the table for a possible Supreme Court revisit. For now, however, the “citizen-at-conviction” shield remains firmly in place within the Sixth Circuit, illustrating once more how verb tense and statutory continuity can decisively shape immigration outcomes.