Elfido Gonzalez Castillo v. PAMELA BONDI, Attorney General

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0160p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ELFIDO GONZALEZ CASTILLO,
Petitioner,
v.
PAMELA BONDI, Attorney General,
Respondent.
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Nos. 24-3631/3633/3634
On Petition for Review from the Board of Immigration Appeals.
No. A 090 276 154.
Argued: June 11, 2025
Decided and Filed: June 18, 2025
Before: SUTTON, Chief Judge; CLAY and THAPAR, Circuit Judges.
_________________
COUNSEL
ARGUED: Benjamin R. Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER,
LLC, Alexandria, Virginia, for Petitioner. Alanna Thanh Duong, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin R.
Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for
Petitioner. Lindsay Marshall, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
SUTTON, C.J., delivered the opinion of the court in which CLAY and THAPAR, JJ.,
concurred. THAPAR, J. (pp. 12–22), delivered a separate concurring opinion.
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_________________
OPINION
_________________
SUTTON, Chief Judge. Elfido Gonzalez Castillo illegally entered the United States and
eventually applied for citizenship. He succeeded, but only because he failed to disclose a recent
indictment for sexually abusing his niece. Shortly after becoming a citizen, Gonzalez pleaded
guilty to the offense. Years later, the government revoked Gonzalez’s citizenship due to his lie.
It then tried to deport him based on a statute that renders removable “[a]ny alien who at any time
after admission is convicted of a crime of . . . child abuse.” 8 U.S.C. § 1227(a)(2)(E)(i). An
immigration judge ordered him removed, as did the Board of Immigration Appeals. But because
Gonzalez was a citizen, not an alien, when his conviction occurred, and because the Supreme
Court has rejected a similar argument, we grant his petition for review.
I.
A native and citizen of Mexico, Gonzalez illegally entered the United States in June
1981. In November 1989, he became a lawful permanent resident. Two decades later, in March
2009, Gonzalez applied for naturalization with the U.S. Citizenship and Immigration Services.
He succeeded but not with clean hands.
In June 2009, with his application pending, Maryland law enforcement officers arrested
Gonzalez and charged him with seven counts related to the sexual abuse of his minor niece. See
Md. Crim. Law §§ 3-602, 3-306, 3-307. After the arrest, immigration officers twice interviewed
Gonzalez about his pending naturalization application. In the first interview, an officer asked
Gonzalez if he had ever been arrested or jailed, and he responded that he once was arrested and
jailed for a night after driving under the influence in 1995. In the second interview, an officer
asked if he had ever been charged with committing a crime, and Gonzalez answered that he once
was charged with using false identification in 1983. Gonzalez did not mention that he had been
arrested and charged with a sexual-abuse crime a few months before the interviews.

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Gonzalez became a naturalized citizen in October 2009. Two months later, Gonzalez
pleaded guilty to one count of sexual abuse in the third degree. He was sentenced to three years
in prison, eighteen months of which were suspended.
Gonzalez enjoyed his naturalized status without incident for about a decade. In 2019, the
government sought to revoke his citizenship, and in May 2022 a court ordered its cancellation in
light of his admission that he illegally procured it. 8 U.S.C. § 1451(a). In August 2022, the
Department of Homeland Security initiated removal proceedings against Gonzalez and claimed
he should be deported under 8 U.S.C. § 1227(a)(2)(E)(i). That provision says that “[a]ny alien
who at any time after admission is convicted of a crime of . . . child abuse . . . is deportable.” Id.
§ 1227(a)(2)(E)(i).
An immigration judge sustained the charge and denied Gonzalez’s application for
cancellation of removal. The Board of Immigration Appeals rejected his appeal.
He sought review in the Third Circuit. It determined that venue lay elsewhere and
transferred his petition here. Castillo v. Att’y Gen. of the U.S., 109 F.4th 127, 134 (3d Cir. 2024).
II.
When the Board of Immigration Appeals reviews an immigration judge’s decision and
“issues a separate opinion, rather than summarily affirming” the decision, as it did in this case,
“we review the Board’s decision as the final agency determination.” Seldon v. Garland, 120
F.4th 527, 531 (6th Cir. 2024) (quotation omitted). We give fresh review to its legal
conclusions. Id.
At issue is the meaning of this sentence in the immigration laws: “Any alien who at any
time after admission is convicted of a crime of . . . child abuse . . . is deportable.” 8 U.S.C.
§ 1227(a)(2)(E)(i). Is Gonzalez deportable, in other words, under the child-abuse provision even
though, at the time of the predicate conviction, he was a naturalized citizen?
A.
Under the “best reading” of the child-abuse provision, Loper Bright Enters. v. Raimondo,
603 U.S. 369, 400 (2024), it does not cover individuals who were citizens at the time of the

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relevant conviction. Start with the phrase “alien . . . who . . . is convicted.” 8 U.S.C.
§ 1227(a)(2)(E)(i). Congress defined “alien” as “any person not a citizen or national of the
United States.” Id. § 1101(a)(3). That was not Gonzalez at the time of the conviction. The
phrase “is convicted” also uses a present-tense, passive-voice structure. That suggests that the
child-abuse provision covers only the removal of an individual who “is” an alien at the time of
the conviction.
Precedent reinforces this interpretation. In 1964, 32 years before Congress enacted this
provision, the Supreme Court addressed a similar issue in Costello v. INS, 376 U.S. 120 (1964).
The case concerned Frank Costello, an immigrant who obtained citizenship through
naturalization in 1925. Id. at 121. While a citizen, Costello was convicted of tax-evasion crimes
that would render an alien deportable. Id. Years later, the government discovered that Costello
lied on his naturalization forms. Id. Costello had claimed to work in “real estate” in 1925, but in
truth he had been a “bootlegger” and thus “would probably not have been admitted to
citizenship” had the truth come out. Costello v. United States, 365 U.S. 265, 267–68, 270
(1961).
After stripping Costello of his citizenship, the government sought to deport him for the
tax crimes he committed while a citizen. It did so under a provision that called for the
deportation of “[a]ny alien” who “at any time after entry is convicted of two crimes involving
moral turpitude.” Costello, 376 U.S. at 121 (quoting 8 U.S.C. § 1251(a)(4) (1964 ed.)). The
question before the Supreme Court was whether the moral-turpitude provision applied to an alien
who, at the time of his conviction, was a citizen. Id. at 122.
The Court rejected that possibility. In doing so, it noted that the moral-turpitude
provision differed from an older removal ground that the Court had already construed to apply to
aliens regardless of their citizenship status at the time of conviction. Id. at 122–24. The earlier
provision referred to all “aliens who since August 1, 1914, have been or may hereafter be
convicted” of violations of the Espionage Act of 1917. Act of 1920, Pub. L. No. 197, 41 Stat.
593; United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521, 527 (1950). Unlike that
removal ground, the moral-turpitude provision employed “neither a past tense verb nor a single
specific time limitation.” Costello, 376 U.S. at 124. Its use of the present, passive tense and its

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lack of a date limitation called for a different reading. These features of the law, together with
the rule of lenity, prompted the Court to conclude that the moral-turpitude provision did not
cover aliens who were citizens at the time of conviction. Id. at 126–28.
Under the prior-construction canon, we presume that, “[i]f a statute uses words or phrases
that have already received authoritative construction by the jurisdiction’s court of last resort,”
then “they are to be understood according to that construction.” Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts § 54, at 322 (2012); see also Lightfoot v.
Cendant Mortg. Corp., 580 U.S. 82, 95 (2017). Congress had ample reason to understand
Costello’s position on this language when it adopted the child-abuse provision in 1996. And it
retained the relevant wording wholesale. Recall that the child-abuse provision refers to “[a]ny
alien who at any time after admission is convicted of a crime of . . . child abuse,” 8
U.S.C. § 1227(a)(2)(E)(i), and that the moral-turpitude provision refers to “[a]ny alien . . . who at
any time after entry is convicted of two crimes involving moral turpitude,” id. § 1251(a)(4)
(1964 ed.). Both provisions refer to an alien who “is convicted.” Both lack a temporal
restriction. And the slight differences between the two stem from the class of crimes covered,
not citizenship status. These revealing parallels offer one good reason to read the child-abuse
provision in the same way as the Costello Court read the moral-turpitude provision.
Another good reason is that Congress knew how to speak otherwise. See Russello v.
United States, 464 U.S. 16, 23 (1983). Several provisions of § 1227 do just that. One refers to
an alien who “has been convicted” of certain controlled substance crimes and may be deported as
a result. 8 U.S.C. § 1227(a)(2)(B)(i). Another refers to an alien “who is, or at any time after
admission has been,” a drug abuser and thus faces the same fate. Id. § 1227(a)(2)(B)(ii). The
child-abuse provision’s focus on an alien who “is convicted” markedly differs from its
neighbors. It’s fair to infer that the contrast stems from Congress’s proper use of grammar, not a
sixth grader’s halting grasp of verb tense.
Other circuits have reached similar conclusions in similar settings. The Third Circuit
construed the statute’s aggravated-felony provision, which provides that “[a]ny alien who is
convicted of an aggravated felony at any time after admission is deportable.” Singh v. Att’y Gen.
of the U.S., 12 F.4th 262, 272 (3d Cir. 2021) (quoting 8 U.S.C. § 1227(a)(2)(A)(iii)).

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It concluded that the “provision unambiguously excludes” individuals who were convicted while
citizens in view of the text, surrounding statutory provisions, and Costello. Id. at 273, 278. The
Eleventh Circuit took a similar course, noting that “the prior-construction canon counsels in
favor of reading” the aggravated-felony provision “like Costello read the moral-turpitude
provision.” Hylton v. U.S. Att’y Gen., 992 F.3d 1154, 1159–60 (11th Cir. 2021). We know of no
contrary circuit precedent.
While we think this is the best reading of the statute, we note that, as Costello observed, a
statute in equipoise would call for the rule of lenity to alleviate the ambiguity. When such
uncertainty clouds a deportation statute, “the longstanding principle of construing” it “in favor of
the alien” kicks into gear. See INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987); Fong Haw
Tan v. Phelan, 333 U.S. 6, 10 (1948) (“We resolve the doubts in favor of that construction
because deportation is a drastic measure and at times the equivalent of banishment of exile.”);
INS v. Errico, 385 U.S. 214, 225 (1966) (“Even if there were some doubt as to the correct
construction of the statute, the doubt should be resolved in favor of the alien.”); INS v. St. Cyr,
533 U.S. 289, 320 (2001) (“buttress[ing]” its conclusion with “the longstanding principle of
construing any lingering ambiguities in deportation statutes in favor of the alien”) (quotation
omitted); Kawashima v. Holder, 565 U.S. 478, 489 (2012); cf. Carachuri-Rosendo v. Holder,
560 U.S. 563, 581 (2010).
The government claims that we should not focus on the phrase “is convicted” but instead
should focus on the statute’s reference to aliens convicted “at any time.” That broad language,
the government says, shows that Congress wanted the child-abuse provision to cover individuals
who were convicted even after they became citizens. But the reference to aliens convicted “at
any time” serves another purpose. The phrase distinguishes provisions like this one from others
that may trigger deportability within, say, only five years of admission or entry. See, e.g.,
8 U.S.C. § 1227(a)(1)(E)(i) (“Any alien who . . . within 5 years of the date of any entry . . . has
aided any other alien to enter or to try to enter the United States in violation of the law is
deportable.”); id. § 1227(a)(5) (“Any alien who, within five years after the date of entry, has
become a public charge from causes not affirmatively shown to have arisen since entry is
deportable.”). The moral-turpitude provision in Costello, moreover, also referred to aliens

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convicted at “any time” after entry. Yet the Supreme Court declined to conclude that the
language, when paired with the “is convicted” language, covers all aliens regardless of their
citizenship status when convicted. Costello, 376 U.S. at 121.
The government persists that Congress has changed the statute since Costello and that
part of Costello rested on a provision that no longer exists. Under the Immigration Act of 1917,
sentencing judges “had the power to make a recommendation that [an] alien shall not be
deported.” Padilla v. Kentucky, 559 U.S. 356, 361–62 (2010) (quotation omitted). Based on this
judicial-recommendation provision, Costello explained that the moral-turpitude provision had to
apply only to aliens who were aliens at the time of conviction. 376 U.S. at 127. If it extended to
naturalized citizens, the Court noted, sentencing judges would have lacked the ability to
recommend against deportation in those cases. Id. And that possibility would have rendered the
judicial-recommendation provision “a dead letter” with “respect to an entire class of aliens.” Id.
Congress eliminated the judicial-recommendation provision in 1990, Padilla, 559 U.S. at 363;
see Immigration Act of 1990, Pub. L. No. 101-649, § 505, 104 Stat. 5050, six years before it
enacted the child-abuse provision. All of this means, the government claims, that Costello no
longer applies.
But Congress’s repeal of a provision on which Costello relied does not show that
Congress overruled Costello. “When Congress intends to effect a change of that kind, it
ordinarily provides a relatively clear indication of its intent in the text of the amended provision.”
TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 581 U.S. 258, 268 (2017). That is why
courts do “not favor[]” the “modification by implication of the settled construction of an earlier
and different section.” United States v. Madigan, 300 U.S. 500, 506 (1937). The repeal of the
judicial-recommendation provision by itself does not suffice to “cast in doubt” Costello’s
“authoritative judicial holding on the meaning” of the removability provision. Scalia & Garner,
supra, § 55, at 331. Had Congress wished to change the meaning of “is convicted,” it had
straightforward tools for doing so.
Costello did not rest solely on the judicial-recommendation provision in any event. It
also relied on the “is convicted” language in the statute. Costello, 376 U.S. at 123–25.
Removing one reinforcing leg of a decision does not remove the other.

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The government pivots to another Supreme Court precedent. It claims that United States
ex rel. Eichenlaub v. Shaughnessy makes Gonzalez deportable. 338 U.S. 521 (1950). At issue in
that case were the deportations of two men who emigrated from Weimar Germany, fraudulently
obtained American citizenship, and were convicted for violating the Espionage Act of 1917
while enjoying their citizenship. Id. at 523–25. Eventually, their fraud came to light, prompting
the government to strip the men of citizenship and to try to deport them for the Espionage Act
violations. Id. at 524–25. Eichenlaub deemed both men deportable. Id. at 533. Gonzalez, the
government says, should face the same fate.
The Supreme Court has already rejected this application of Eichenlaub. Recall that the
statute at issue in Eichenlaub called for the removal of “[a]ll aliens who since August 1, 1914,
have been or may hereafter be convicted of any violation or conspiracy to violate” the Espionage
Act of 1917. Id. at 527 (quoting Act of 1920, Pub. L. No. 197, 41 Stat. 593). Costello explained
that this provision differed in material ways from the moral-turpitude provision. One used the
past tense (“have been . . . convicted”), while the other used the present tense (“is convicted of”).
376 U.S. at 124. More broadly, the law at issue in Eichenlaub “was a special statute dealing with
sabotage and espionage during the first World War and applicable to some 650 aliens then in
custody.” United States ex rel. Brancato v. Lehmann, 239 F.2d 663, 666–67 (6th Cir. 1956); see
also Costello, 376 U.S. at 124. Eichenlaub’s distinct background and distinct text have no role
to play here after Costello.
The government pushes statutory purpose as a reinforcement of its own. The child-abuse
provision entered the U.S. Code as part of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996. When Congress passed that law, it represented “an aggressive
legislative movement to expand the criminal grounds of deportability in general and to create a
comprehensive statutory scheme to cover crimes against children in particular.” In re Velazquez-
Herrera, 24 I. & N. Dec. 503, 508–09 (BIA 2008) (quotation omitted). That expansive effort,
the government claims, demands that we construe the statute to include more offenders of crimes
against children, not fewer. But that aim does not mean it “disfavor[ed] any obstacle to that
goal.” Arangure v. Whitaker, 911 F.3d 333, 345 (6th Cir. 2018). The text of the statute reflects
the reasoned compromise by 535 legislators and one President, SAS Inst., Inc. v. Iancu, 584 U.S.

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357, 370 (2018), and an “amorphous ‘purpose’” cannot replace the enacted text, Arangure, 911
F.3d at 345. The best reading of the child-abuse provision remains the best way to honor the
purpose of the 1996 Act.
The government in the alternative offers another way to think about the statute—that, in
light of Gonzalez’s denaturalization, we may treat him as though he has always been an alien and
thus may deem him an alien at the time of the child-abuse conviction. The trouble with this
theory, as the government acknowledges, is that Costello rejected it. Recall that Costello, like
Gonzalez, immigrated to the United States and became a naturalized citizen after lying on his
application. Costello, 376 U.S. at 121. He then committed crimes that would justify an alien’s
deportation. Id. After the government stripped Costello of his citizenship due to his
misrepresentation, it tried to deport him based on the crimes he committed while enjoying his
(falsely obtained) citizenship. Id.
Despite Costello’s “willful misrepresentation,” the Supreme Court refused to say he was
never a citizen for deportation purposes. Id. at 130–31. It dismissed the government’s focus on
8 U.S.C. § 1451(a), a provision that treats denaturalization orders as effective from the original
date of naturalization. Id. at 129–30. As Costello saw it, § 1451(a)’s original-date provision
pertained only to the “rights of derivative citizenship” (that is, the ability of a person’s child to
become a citizen), not deportation. Id. The Court added that, if Congress disagrees, it could
amend the deportation statute to cover aliens like Costello, who were citizens at the time of the
relevant conviction. Id. at 132.
We see no principled way to distinguish Gonzalez from Costello. Both men obtained
citizenship after making false representations during the naturalization processes. Both men
committed crimes while enjoying falsely obtained citizenship. And after both men lost their
citizenship through the denaturalization process, they faced deportation charges based on their
earlier convictions. When the Supreme Court explained what that meant for Costello, it did not
speak haltingly. It “wrote broadly,” Okpala v. Whitaker, 908 F.3d 965, 972 (5th Cir. 2018)
(Jones, J., concurring), and “declined to apply” the original-date “fiction in [the] deportation
context,” notwithstanding Costello’s fraud, Costello, 376 U.S. at 130. The same conclusion
applies today.

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Every circuit to address the question has reached the same conclusion. Nearly seven
decades ago our own court found as much and, eight years later, the Costello Court favorably
cited the decision. See id.; Brancato, 239 F.2d at 666 (interpreting Supreme Court precedent to
“indicate[] disapproval of a relation-back construction”). Other courts of appeals have followed
suit based on Costello. Singh, 12 F.4th at 279 (rejecting the theory that an alien’s
“denaturalization springs back in time to the date he fraudulently obtained his citizenship”
because the “Supreme Court rejected that very argument more than half a century ago in
Costello”); Okpala, 908 F.3d at 970 (concluding that, because Costello controls, one who
fraudulently procured citizenship is “not rendered an ‘alien’ at the time of conviction by nature
of his subsequent ab initio denaturalization”); Hylton, 992 F.3d at 1161 (rejecting the idea that
denaturalization on fraud grounds “relates back” to cover an alien’s prior convictions because
“Costello squarely rejected this reading of section 1451”).
The government reprises the Board’s theory that Costello distinguishes between
derivative citizenship (in which denaturalization dates back to the original time of naturalization)
and removability (in which it does not). Authorities post-dating Costello, according to the
Board, foreclose the possibility that Gonzalez’s status could revert from naturalized citizen to
alien. As a result, one must think of him as having never received citizenship. It’s true that three
months after Costello, the Supreme Court made clear that Congress must provide naturalized
citizens with the same rights as native-born citizens. Schneider v. Rusk, 377 U.S. 163, 165
(1964). And three years later, it held that one cannot involuntarily lose his citizenship. Afroyim
v. Rusk, 387 U.S. 253, 267–68 (1967). But both of those authorities concerned individuals who
validly obtained citizenship. Schneider, 377 U.S. at 166 (“[T]he rights of the naturalized citizen
derive from satisfying, free of fraud, the requirements set by Congress.”) (emphasis added);
Afroyim, 387 U.S. at 267 n.23 (“Of course . . . naturalization unlawfully procured can be set
side.”). Neither case thus provides reason to treat properly denaturalized individuals as having
always been aliens for deportation purposes. That explains why neither Schneider nor Afroyim
mentioned Costello. And that explains why Costello still controls.
We appreciate the government’s argument that developments since Costello have
undermined some of its reasoning. But revisiting the persuasiveness of Supreme Court decisions

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is a task for the Justices themselves, not lower court judges, particularly when a precedent
interprets a statute, not the Constitution. See Kimble v. Marvel Ent., LLC, 576 U.S. 446, 456
(2015).
Nothing about our disposition today changes the reality that Gonzalez, now as a legal
permanent resident, must continue to abide by the law or risk deportation. See 8 U.S.C.
§ 1227(a)(1)–(7). Should he fail to meet those demands, nothing stops the government from
pursuing his removal then.
We grant the petition for review, vacate the order of removal, and remand for further
proceedings consistent with this opinion.

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_________________
CONCURRENCE
_________________
THAPAR, Circuit Judge, concurring. Elfido Gonzalez Castillo became a naturalized
United States citizen by defrauding the government. Weeks later, he was convicted of sexually
molesting a six-year-old child. The government eventually discovered Castillo’s immigration
fraud and secured a court order revoking his certificate of naturalization. As a result of Castillo’s
de-naturalization, federal law requires courts to treat him as though he had never become a
citizen at all. 8 U.S.C. § 1451(a). And under any ordinary reading of the law, that means the
government should be free to deport him.
But a Supreme Court case from 1964 prevents this court from respecting Congress’s
command. In Costello v. Immigration & Naturalization Service, the Supreme Court declared—
without analyzing the text of section 1451(a)—that the statute couldn’t apply to deportation
proceedings. Why? Because of an “absence of specific legislative history” saying it should.
Costello’s interpretation of section 1451(a) has resulted in a series of disturbing
anomalies that no rational Congress could have intended. For one, if Castillo had possessed
31 grams of marijuana, he would be deportable. But instead, he sexually abused a young girl for
seven years, so he isn’t. For another, Costello rewards immigration fraud. With the relation-
back provision inapplicable, Castillo has insulated himself from deportation by defrauding the
United States. That is absurd.
Costello is ripe for reconsideration by the Supreme Court, which has disavowed the
bygone era of ignoring a statute’s plain text. Until then, the Constitution requires me to follow
this controlling precedent. For that reason, I reluctantly concur.
I.
Elfido Gonzalez Castillo, a native of Mexico, illegally entered the United States in 1981.
He proceeded to commit horrifying sexual crimes against his niece, who was just six years old
when he began abusing her. According to a Maryland grand jury, Castillo anally raped his niece,

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digitally penetrated her, groped her, and committed other appalling forms of abuse against her
over seven years. In July 2009, Maryland prosecutors charged Castillo with seven counts of
sexual abuse.
Just months later, Castillo became a naturalized United States citizen. How could he
possibly win the treasured privilege of United States citizenship just months after he was arrested
for sexually abusing a child? Fraud. At two interviews during his pre-trial release, Castillo lied
to immigration officers by saying he hadn’t been arrested for anything but a DUI and a fake ID
charge. Based on these lies, Castillo obtained citizenship. He took advantage of the
government’s willingness to let him apply for citizenship even though he first came to the United
States illegally and even though he had two prior arrests. And then weeks later, Castillo
admitted to being a child abuser.
The government eventually discovered Castillo’s fraud. It asked a Maryland federal
court to strip Castillo of his citizenship. The court granted that request. It revoked Castillo’s
certificate of naturalization and restored him to his status as an alien.
II.
With Castillo de-naturalized, the Department of Homeland Security launched deportation
proceedings against him. The government relied on 8 U.S.C. § 1227(a)(2)(E). That statute
provides for the deportation of “[a]ny alien who . . . is convicted of a crime of . . . child abuse.”
But Castillo argues that this statute doesn’t apply to him, since he wasn’t an alien when he was
convicted of child abuse. Rather, he says he was a citizen—albeit a fraudulent one.
Although Castillo’s argument has some force at first blush, section 1227 can’t be
understood in isolation. In a separate provision, Congress has required courts to treat Castillo as
though he had never been a citizen. Section 1451(a) provides that when an alien like Castillo
procures a certificate of naturalization by fraud, and that certificate of naturalization is later
revoked, then the revocation of citizenship “shall be effective as of the original date” of the
naturalization order. Under this “relation-back” provision, Castillo’s naturalization never
happened. The law treats his naturalization as void from the beginning, since the revocation of
his naturalization certificate is “effective as of” the date he originally got it. 8 U.S.C. § 1451(a).

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If this court were allowed to apply the relation-back statute, this would be an easy case.
Castillo would be deportable, since the law would treat him as an “alien” at the time he was
convicted of child abuse. See id. § 1227(a)(2)(E)(i).
III.
But we can’t apply the relation-back provision. Decades ago, the Supreme Court
determined that the relation-back statute doesn’t apply in deportation proceedings. Costello v.
Immigr. & Naturalization Serv., 376 U.S. 120, 130 (1964). In doing so, the Court ignored the
relation-back statute’s clear text. Why? Because it couldn’t find legislative history to confirm
that the statute applies to deportations.
Costello is a relic of a bygone era of statutory interpretation—a time when the Court felt
free to override the policies that Congress enacted into law. And it has created serious anomalies
in our country’s immigration system. Costello produced an irrational scheme that treats child
molesters more favorably than drug users and children claiming derivative citizenship. It also
allows criminals like Castillo to benefit from defrauding the government on their naturalization
applications. See id. at 135 (White, J., dissenting). Because of its flawed legal analysis and the
illogical results it has produced, Costello is ripe for reconsideration.
A.
To understand Costello’s error, “start where we always do: with the text of the statute.”
Van Buren v. United States, 593 U.S. 374, 381 (2021). Section 1451(a) addresses what happens
when an alien becomes a naturalized citizen through fraud. In that case, federal prosecutors have
a “duty” to sue “for the purpose of revoking and setting aside” the certificate of naturalization
that allowed the alien to become a citizen. 8 U.S.C. § 1451(a). After a court revokes the
certificate of naturalization, the revocation is “effective as of the original date of the order and
certificate.” Id. (emphasis added). So when an alien’s fraudulently obtained naturalization
certificate is revoked, the law treats the certificate as though it never existed in the first place.
The certificate’s revocation is “effective as of” the date it first issued—meaning that the alien
never became a citizen at all. In legal parlance, the revocation “relates back” to the date it first
issued. For that reason, 8 U.S.C. § 1451(a) is sometimes called the “relation-back” provision.

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The statute’s text is clear. It doesn’t make any exceptions for aliens who are about to be
deported. And it doesn’t give judges discretion to choose when an illegal alien should get a pass
for his fraud.
Congress enacted the relation-back statute in 1952. See Immigration and Nationality Act
of 1952, Pub. L. No. 82-414, § 340(a), 66 Stat. 163, 260 (1952). But even before then, courts
had held that if a certificate of naturalization is cancelled because of fraud, “the purported
naturalization is a nullity.” Battaglino v. Marshall, 172 F.2d 979, 981 (2d Cir. 1949). Fraud
makes the naturalization “void” from the moment of the certificate’s creation. Id. A void
certificate can confer “no rights whatever” upon the alien who procured it. Rosenberg v. United
States, 60 F.2d 475, 476 (3d Cir. 1932); see also Johannessen v. United States, 225 U.S. 227,
240–41 (1912) (explaining that when an alien obtains a naturalization certificate on the basis of
fraud, “he takes nothing by his paper grant” (quoting United States v. Spohrer, 175 F. 440, 442
(D.N.J. 1910))).
The Second Circuit had applied this principle in the deportation context, holding that a
citizen’s subsequent denaturalization meant that he could be deported for a crime committed
while he was a nominal citizen, since he was really an alien when he committed the crime.
United States ex rel. Eichenlaub v. Watkins, 167 F.2d 659, 660 (2d Cir. 1948), aff’d on other
grounds by United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521 (1950).
So the “relation back” theory wasn’t new when Congress codified it in 1952. Courts had
already been developing it on their own. And those cases set forth categorical reasoning: when
a privilege like naturalization is procured by fraud, it never becomes effective. That principle
doesn’t allow courts to void naturalizations for some purposes but not others. Through the clear
text of the relation-back provision, Congress enacted that principle into law. Cf. Antonin Scalia
& Bryan A. Garner, Reading Law 318 (2012).
B.
Against this backdrop, the Supreme Court considered the relation-back provision in 1964.
The case concerned mob boss Frank Costello, who became a naturalized American citizen in
1925. Costello, 376 U.S. at 121; see also Frank Costello Dies of Coronary at 82, N.Y. Times

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(Feb. 19, 1973), https://www.nytimes.com/1973/02/19/archives/frank-costello-dies-of-coronary-
at-82-underworld-leader-frank.html. Costello was convicted of crimes in 1954, and a few years
later, his citizenship was revoked on the ground that he had procured it by fraud. Costello, 376
U.S. at 121. Costello had told immigration authorities that his profession was “real estate,” when
in reality, he was “a largescale bootlegger.” Costello v. United States, 365 U.S. 265, 272 (1961).
After Costello was denaturalized, the government sought to deport him. It invoked a
statute that required the deportation of any “alien in the United States” who “is convicted of two
crimes involving moral turpitude.” Costello, 376 U.S. at 121. But there was a problem:
Because the statute applied only to “an alien . . . who . . . is convicted of two crimes,” Costello
needed to be an alien at the time of his convictions to qualify for deportation under the statute.
Id. at 123–29. And Costello committed his crimes after he had obtained a certificate of
naturalization.
Enter the relation-back provision. The government argued that, under that statute,
Costello was an alien when he committed his crimes. Id. at 128–29. Even though he had been
naturalized in 1925 (decades before his convictions), his naturalization was a nullity, because he
had procured it by fraud. The relation-back provision made the cancellation of Costello’s
naturalization “‘effective’ as of 1925,” meaning that he was “an alien as a matter of law at the
time of his convictions in 1954.” Id. at 129. In the government’s view, that made Costello
deportable. Id.
If the Court had applied the plain text of the relation-back provision, it would have agreed
with the government. As we’ve already seen, the statute’s plain text, as well as the backdrop of
caselaw against which it was enacted, shows that an alien who procures naturalization by fraud
never becomes a citizen at all. Justice White said just that in dissent: “It is therefore useless to
talk about whether [section 1227] makes an exception for aliens who were citizens when
convicted because [section 1451] makes clear that in Congress’ view they were always aliens.”
Id. at 140 (White, J., dissenting).

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But the Court refused to follow Justice White’s lead and apply the plain text of the
statute. Instead, the Court relied on legislative history—or rather, an absence of legislative
history—to make the relation-back provision inapplicable to deportation cases. With just a
passing reference to the statutory text, the Court declared that it had found “nothing in the
language of [section 1451] and not a single indication in the copious legislative history of the
1952 Act” to show that Congress wanted the relation-back theory to apply in the deportation
context. Id. at 129. And “in the absence of specific legislative history,” the Court was unwilling
to apply the relation-back theory to Costello’s case. Id. at 130.
To avoid simply erasing a duly enacted federal law from the books, the Court grafted
onto it an atextual distinction. The relation-back statute could be used to determine rights of
“derivative citizenship.” For example, the statute could apply to strip an alien’s child of
citizenship that he obtained thanks to his father’s fraudulently procured naturalization certificate.
But it couldn’t be used to deport an alien who committed crimes during his stint as a fraudulent
citizen. Id. at 129–30.
This type of statutory interpretation is the product of a bygone era in which courts often
made “no distinction between words in the text of a statute and words in its legislative history.”
Antonin Scalia, A Matter of Interpretation 31 (1997). Today, courts place primacy on the text.
Epic Sys. Corp. v. Lewis, 584 U.S. 497, 523 (2018). And courts now recognize that when we
brush aside statutory text, we arrogate power not granted to us in the Constitution.
Of course, Costello was from a different era. So it is not surprising that the opinion
contains some suggestions that the Court’s interpretation of the relation-back provision might
have been driven by disagreements with Congressional policy. Indeed, Costello declared that the
relation-back concept that Congress enacted into law “is a legal fiction at best.” 376 U.S. at 130.
Never mind that the doctrine has its origins in the “very ancient” rule that public grants procured
by fraud are void. See Johannessen, 225 U.S. at 238. Then, Costello asserted that when dealing
with deportation (which the Court viewed as a severe penalty, akin to “banishment or exile”),
courts should “eschew technicalities and fictions” and “deal instead with realities.” 376 U.S. at
131. To the Court, that meant Costello’s convictions “occurred when he was a naturalized

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citizen”—despite Congress’s determination to the contrary. Id. at 131–32. By condemning
Congress’s policy choice as a “fiction at best,” the Court felt free to disregard it.
The Costello Court also misconstrued the cases that courts decided before 1952, when
Congress enacted the relation-back provision. Costello asserted that Congress intended to
“codify existing case law.” Id. at 129. But “[s]everal cases before 1952” held that “an order of
denaturalization made the original naturalization a nullity.” Id. Those cases made no distinction
between deportation and other contexts like derivative-citizenship proceedings. In fact, the
Second Circuit expressly held that the judicially developed relation-back theory applied in
deportation cases. Id. at 129–30. So if Congress intended to codify existing caselaw, it intended
to make the relation-back statute applicable to deportation cases.
Nevertheless, Costello interpreted the caselaw to suggest that the relation-back doctrine
could not apply in deportation cases. It read Eichenlaub as having “pointedly declined to adopt
the Second Circuit’s reasoning.” Id. at 130. But that’s not accurate. The Eichenlaub Court
articulated the relation-back theory but didn’t opine on its merits, since the Court had a “simpler
and equally complete solution” for affirming the deportation of the aliens before it in that case.
338 U.S. at 529–30. Costello also claimed support from a Sixth Circuit decision that refused to
apply the judicially developed relation-back doctrine in the deportation context. 376 U.S. at 130
(citing United States ex rel. Brancato v. Lehmann, 239 F.2d 663, 666–67 (6th Cir. 1956)). But
the Brancato court didn’t discuss the relation-back statute at all, and thus provides no help. 239
F.2d at 666–67.1
C.
It should be clear by now that Costello is ripe for reconsideration for the above reasons
alone. But I would add one more: The decision has proven unworkable in practice. Costello
produced three serious anomalies that a rational Congress never would have approved.
1Given the lack of reasoning supporting the Court’s decision, one might wonder how it reached this result.
Perhaps the Court’s result becomes less mystifying when one considers that Costello’s lawyer was Edward Bennett
Williams. By 1964, “[p]eople in deep trouble turned to Williams because of his reputation as a miracle worker who
could make the guilty go free.” Evan Thomas, The Man to See: Edward Bennett Williams: Ultimate Insider;
Legendary Trial Lawyer 14 (1991). Williams’s skill might not have been the sole reason for Costello’s victory, but
it certainly didn’t hurt.

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First, with the relation-back provision nullified, the deportation laws now make arbitrary
distinctions between different types of criminals, depending on the verb tense of the particular
statute authorizing their deportation.
Consider 8 U.S.C. § 1227(a)(2)(B)(ii). That statute provides for the deportation of any
alien who “is, or at any time after admission has been, a drug abuser or addict.” Same with
section 1227(a)(2)(B)(i), which makes deportable any alien who “has been convicted” of a drug
possession crime, “other than a single offense” for possessing 30 grams or less of marijuana.
Note the use of the present-perfect verb form “has been.” If an alien procures citizenship by
fraud, then abuses drugs, then has his citizenship cancelled, he is deportable—even with the
relation-back provision erased from the books.
By contrast, the statute under which the government seeks to deport Castillo applies only
to an alien who “is convicted” of a crime of sexual abuse. That requires the conviction to have
occurred while the defendant was an alien. So if the person was convicted while he was a
citizen, he can’t be deported—unless the relation-back provision applies. Of course, after
Costello, it doesn’t.
The upshot of all this: If Castillo had abused drugs, he’d be deportable even without a
conviction. But instead he sexually molested a child for seven years, so he’s not deportable.
That is absurd. No rational Congress would have treated a child molester more favorably than a
drug user. And in reality, Congress did no such thing. The relation-back provision ensures that
an alien who procured his naturalization by fraud wouldn’t be able to evade deportation just
because he committed crimes during his time as a fraudulent citizen. Only when the relation-
back provision is nullified does this drug-abuser-versus-child molester absurdity result.
Second, under Costello, the relation-back provision ensnares people who never
committed any fraud or crimes—like the children of illegal immigrants—but doesn’t authorize
the deportation of illegal aliens who commit crimes during their time as fraudulent citizens.
Recall that Costello avoided a complete wipeout of the relation-back statute by drawing an
arbitrary distinction: the statute could apply “for the purpose of determining rights of derivative
citizenship,” but not for purposes of determining whether an alien is deportable. 376 U.S. at 129.

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To understand what the Court meant by “determining rights of derivative citizenship,” an
example is helpful. Antonio Battaglino, a native of Italy, moved to the United States and
obtained a certificate of naturalization in 1893. Battaglino v. Marshall, 172 F.2d 979, 980
(2d Cir. 1949). He went back to Italy and had a son. Id. This son obtained American citizenship
under a statute granting that privilege to any foreign-born applicant whose father was a United
States citizen at the time of the applicant’s birth. Id. at 981. Then, in 1925—after the son had
obtained citizenship—his father’s citizenship was revoked. Id. at 980. The father had procured
his citizenship by fraud. Id. Under the relation-back theory, the father never became a citizen at
all.
The question for the court: Could the relation-back theory be used to strip the son of his
citizenship? Id. at 981. If the relation-back theory made the father’s citizenship a nullity for all
purposes—including for purposes of determining the son’s claim of derivative citizenship—then
the son’s citizenship was a nullity as well, since it was “wholly dependent upon the fact of his
father’s citizenship at the date of his birth.” Id. But if the relation-back theory didn’t apply in
this context, then the son’s citizenship was valid, since he obtained it between 1893 (the year his
father fraudulently obtained citizenship) and 1925 (the year his father’s certificate was
cancelled). He would have obtained citizenship during the time when his father was a nominal
citizen.
The Court held that the relation-back theory applied against the son. Id. The law treated
the father as if he had been an alien from the beginning, even for purposes of determining
whether his son’s claim of citizenship was valid. Thus, the father “never became a citizen,” and
his son “never became one either”—even though the son had never committed any crimes and
had been living in the United States for decades without the slightest reason to think that he
wasn’t a citizen. Id.
This is the “derivative citizenship” context for which Costello approved the use of the
relation-back statute. Thus, according to the Costello majority’s logic, Congress enacted
8 U.S.C. § 1451(a) to punish children who never committed any crime or fraud, but not child
molesters like Castillo who commit immigration fraud and heinous sexual crimes. In other
words, Castillo’s citizenship was a nullity for everything but the crimes he committed.

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That makes no sense. Although the plain text of the relation-back statute does embrace
derivative-citizenship cases like Battaglino, it assuredly does not mean to exempt criminal aliens
who procured their citizenship by fraud.
Third, suppose that, instead of committing fraud, Castillo had truthfully informed the
immigration authorities that he had been arrested for sexually molesting a child. He never would
have been naturalized. And after his subsequent guilty plea, he would have been deportable
under the very same statute that the government invokes today. But under Costello, Castillo’s
fraud “becomes his ready and effective shield.” Costello, 376 U.S. at 135 (White, J., dissenting).
Without the relation-back provision, the statute the government relies on doesn’t authorize
Castillo’s deportation. See 8 U.S.C. § 1227(a)(2)(E).
Again, this is not a result that a rational Congress could have intended. The law typically
doesn’t reward people with unclean hands. The classic remedy for fraud is making the victim
whole, as if the fraud had never happened. But under Costello, this court can’t give relief to the
American people by deporting Castillo.
D.
So with Costello still on the books, what should judges do? For lower courts like this
one, the task is straightforward: We are bound by our judicial oaths to apply Costello. Article
III of the Constitution sets up a “hierarchical system with ‘one supreme Court.’” Ramos v.
Louisiana, 590 U.S. 83, 124 n.5 (2020) (Kavanaugh, J., concurring in part) (quoting U.S. Const.
art. III, § 1). Under this constitutional scheme, “vertical stare decisis is absolute.” Id.
That is why thoughtful jurists across the country have applied Costello, regardless of any
misgivings. Majority Op. (Sutton, C.J.); Hylton v. U.S. Att’y Gen., 992 F.3d 1154, 1156 (11th
Cir. 2021) (William Pryor, C.J.) (acknowledging that, as “binding precedent,” Costello
“forecloses treating Hylton’s denaturalization as retroactive for removal purposes”); Okpala v.
Whitaker, 908 F.3d 965, 972 (5th Cir. 2018) (Jones, J., concurring) (“Because the Supreme Court
wrote broadly in Costello, it imposed this illogical result.”).

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And so while I may believe Costello is misguided, I am duty-bound to follow it. See
Agostini v. Felton, 521 U.S. 203, 237 (1997). Thus, I concur.

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