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Ex-U.S. citizen can't be deported over drug conviction - 3rd Circ.

3 minute read

REUTERS/Chip East

  • Man's drug conviction before he lost citizenship doesn't support deportation
  • Indian native was not an "alien" when he was convicted

(Reuters) - An Indian man cannot be deported on the basis of a drug conviction that took place before he was stripped of his U.S. citizenship for making false claims on his naturalization application, a U.S. appeals court ruled on Tuesday.

A three-judge panel of the 3rd U.S. Circuit Court of Appeals said Baljinder Singh was not an "alien" eligible for deportation under the Immigration and Nationality Act when he was still a U.S. citizen, and his fraudulent application did not retroactively moot his citizenship.

The court granted Singh's petition for review of a Board of Immigration Appeals decision ordering his deportation, and directed the board to reconsider his case.

John Leschak of Leschak & Associates, who represents Singh, did not immediately respond to a request for comment. Nor did the U.S. Department of Justice.

According to the decision, Singh arrived from India at San Francisco International Airport in 1991 without documentation. He told authorities his name was Davinder Singh and was released on bond.

Singh failed to appear for a 1992 hearing and was ordered deported, according to the ruling. He then applied for asylum under the name Baljinder Singh and, while the application was pending, married a U.S. citizen.

In an application for lawful permanent resident status, Singh falsely claimed he had entered the U.S. without inspection in 1991 and failed to disclose that he had identified himself by another name.

He received lawful resident status in 1998 and in 2006 became a naturalized citizen, according to the decision. The government discovered his misrepresentations in 2018 and revoked his naturalization.

In the meantime, Singh in 2011 had pled guilty to conspiracy to distribute heroin, MDMA and marijuana.

After he lost his citizenship, the Department of Homeland Security charged Singh with removability tied to his drug conviction. The INA says any alien convicted of an aggravated felony is deportable, and defines "alien" as "any person not a citizen or national of the United States."

An immigration judge ordered Singh to be deported, and the Board of Immigration Appeals last year affirmed.

Singh appealed, and the 3rd Circuit on Tuesday held that he was not an "alien" when he was convicted in 2011, and therefore could not be deported on the basis of his drug-related crime.

The court agreed with Singh that his case was similar to Costello v. INS, in which the U.S. Supreme Court in 1964 said a law similar to the INA did not apply to a person who was a naturalized citizen at the time of a criminal conviction.

The government had countered that Costello did not apply because it involved a legal remedy known as "judicial recommendation against deportation" that has since been nixed by Congress and was never available to Singh. But the court disagreed.

"The government’s position requires some suspension of disbelief," Circuit Judge Kent Jordan wrote. "After all, the statute is expressly directed at 'aliens,' and one who is a citizen is, by definition, not an alien."

The panel included Circuit Judge Paul Matey and U.S. District Judge Marilyn Horan of the Western District of Pennsylvania, who sat by designation.

The case is Singh v. Garland, 3rd U.S. Circuit Court of Appeals, No. 20-1778.

For Singh: John Leschak of Leschak & Associates

For the government: Virginia Gordon of the U.S. Department of Justice

Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.

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