Kamal Patel v. Janet Napolitano

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KAMAL PATEL, a/k/a Kamalbhai 

Kanti Patel,

Plaintiff-Appellant,

v.

 No. 11-6386

JANET NAPOLITANO; JONATHAN R.

SCHARFEN; ERIC HOLDER; HARLEY

LAPPIN,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Dever III, Chief District Judge.

(5:10-ct-03088-D)

Argued: October 23, 2012

Decided: January 25, 2013

Before GREGORY, SHEDD, and DAVIS, Circuit Judges.

Affirmed by published opinion. Judge Gregory wrote the

majority opinion, in which Judge Shedd joined. Judge Davis

wrote a dissenting opinion.

COUNSEL

ARGUED: Stephanie D. Taylor, JONES DAY, Pittsburgh,

Pennsylvania, for Appellant. Seth Morgan Wood, OFFICE

2 PATEL v. NAPOLITANO

OF THE UNITED STATES ATTORNEY, Raleigh, North

Carolina, for Appellees. ON BRIEF: Lawrence D. Rosen-

berg, JONES DAY, Washington, D.C., for Appellant. Thomas

G. Walker, United States Attorney, R. A. Renfer, Jr., Assis-

tant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Raleigh, North Carolina, for Appel-

lees.

OPINION

GREGORY, Circuit Judge:

Kamal Patel, a permanent resident alien and federal inmate,

appeals the dismissal of his action under 8 U.S.C. § 1503(a)

for a judgment declaring him a United States national. Patel

alleges that he is a United States national because he applied

for citizenship, registered for the Selective Service, and

declared his permanent allegiance to various United States

officials. Because we hold that these facts fail to allege United

States nationality under § 1503(a), we affirm the dismissal.

I.

We set forth the facts as alleged in Patel’s amended com-

plaint. Patel is a federal inmate who has resided in the United

States since the age of eleven and has been a permanent resi-

dent for almost twenty-five years. He registered for the Selec-

tive Service at eighteen. He has sworn an oath of allegiance

to the United States and submitted evidence of his oath to an

immigration judge, the President of the United States, the

Secretary of State, and the Attorney General. Nearly every

member of his family is a United States citizen or permanent

resident. Patel applied for citizenship, but he does not claim

to have completed the naturalization process. Removal pro-

ceedings have not been initiated against him.

PATEL v. NAPOLITANO 3

Because the Federal Bureau of Prisons classifies Patel as an

alien, he is ineligible for a number of prison rehabilitation

programs, including prerelease classes and community con-

finement. In an effort to become eligible for those programs,

he brought this action seeking to be declared a United States

national under 8 U.S.C. § 1503(a) against the Secretary of

Homeland Security, the Director of the United States Citizen-

ship and Immigration Services, the Attorney General of the

United States, and the Director of the Federal Bureau of Pris-

ons.

The district court dismissed Patel’s complaint under 28

U.S.C. § 1915A(b)(1) for failure to state a claim upon which

relief may be granted. Rather than addressing Patel’s

§ 1503(a) claim, the court misconstrued the complaint to

assert a habeas claim under 28 U.S.C. § 2255 and a claim

under Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971). The court reasoned

that these claims failed as a matter of law because inmates do

not have a constitutional right to participate in rehabilitative

programs. Patel timely appealed.

II.

Although the district court failed to address Patel’s

§ 1503(a) claim, we examine the record de novo to determine

whether he states a claim. See Brown v. N.C. Dep’t of Corr.,

612 F.3d 720, 722 (4th Cir. 2010).

Section 1503(a), a provision of the Immigration and

Nationality Act ("INA"), provides that any person within the

United States who "claims a right or privilege as a national of

the United States and is denied such right or privilege by any

department or independent agency . . . upon the ground that

he is not a national of the United States," may bring an action

against the relevant department or agency head for "a judg-

ment declaring him to be a national of the United States." 8

U.S.C. § 1503(a) (2006). An action may not be brought if the

4 PATEL v. NAPOLITANO

person’s status as a national became an issue "by reason of,

or in connection with any removal proceeding" or "is in issue

in any such removal proceeding." Id.

Because § 1503(a) does not specify when a person should

be declared a "national of the United States," we look to the

nationality provisions of the INA for guidance. The INA

defines the term "national of the United States" as "(A) a citi-

zen of the United States, or (B) a person who, though not a

citizen of the United States, owes permanent allegiance to the

United States." Id. § 1101(a)(22). The INA goes on to specify

the means by which United States nationality may be

acquired, which are limited to birth and naturalization. Id.

§§ 1401-1409 ("Nationality at Birth and Collective Natural-

ization"), §§ 1421-1459 ("Nationality Through Naturaliza-

tion"). Persons born in the United States, or, under certain

circumstances, abroad to United States citizen parents, are

"nationals and citizens of the United States at birth." Id.

§ 1401. Persons born in an outlying possession of the United

States (American Samoa or Swains Island), or abroad to non-

citizen national parents, are "nationals, but not citizens, of the

United States at birth." See id. § 1408, § 1101(a)(29). For

those not born United States nationals, the only means pro-

vided by the INA for acquiring United States nationality is

naturalization. See id. §§ 1421-1459.

Patel does not claim to have acquired United States nation-

ality through birth or naturalization. Rather, he argues that he

qualifies as a United States national under the definition pro-

vided in § 1101(a)(22)(B), as interpreted by this Court in

United States v. Morin, 80 F.3d 124, 126 (4th Cir. 1996). In

Morin, we held that a permanent resident alien who had

applied for citizenship was a United States national under

§ 1101(a)(22), which was cross-referenced by a criminal stat-

ute. 80 F.3d at 126. Without addressing whether the alien sat-

isfied any of the statutory procedures for acquiring United

States nationality, we simply reasoned:

PATEL v. NAPOLITANO 5

A "national of the United States" may [ ] be "a per-

son who, though not a citizen of the United States,

owes permanent allegiance to the United States." 8

U.S.C. § 1101(a)(22). The district court found that

because Dr. Soto was a permanent resident alien of

the United States who had applied for United States

citizenship, he was indeed "a national of the United

States." We agree—an application for citizenship is

the most compelling evidence of permanent alle-

giance to the United States short of citizenship itself.

Id.

Patel argues that he qualifies as a United States national

under Morin because he has demonstrated his allegiance to

the United States by applying for citizenship, registering for

the Selective Service, and providing evidence of his oath of

allegiance to United States government officials. Although we

agree with Patel that he would state a claim under Morin’s

interpretation of § 1101(a)(22)(B), for the reasons explained

below, we conclude that Morin’s interpretation does not con-

trol over the contrary, post-Morin interpretation of the statute

by the Board of Immigration Appeals (BIA).

As a threshold matter, we emphasize that the statutory pro-

vision at issue—8 U.S.C. § 1101(a)(22)—is a provision of the

INA. The INA provides that "[t]he Secretary of Homeland

Security shall be charged with the administration and enforce-

ment of [the statute]" and that the "determination and ruling

by the Attorney General with respect to all questions of law

shall be controlling." 8 U.S.C. § 1103(a)(1). Under the

Supreme Court’s decision in Chevron, U.S.A., Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837 (1984), when Congress

delegates authority to the executive department to administer

a statute, the executive department’s interpretation of ambigu-

ous statutory provisions is entitled to "controlling weight,"

unless that interpretation is "arbitrary, capricious, or mani-

festly contrary to the statute." 467 U.S. at 843-44. Thus,

6 PATEL v. NAPOLITANO

because the BIA possesses delegated authority from the Attor-

ney General to administer the INA, "the BIA should be

accorded Chevron deference as it gives ambiguous statutory

terms [in the INA] concrete meaning through a process of

case-by-case adjudication." I.N.S. v. Aguirre-Aguirre, 526

U.S. 415, 425 (1999) (citing INS v. Cardoza-Fonseca, 480

U.S. 421, 448-49 (1987)).

The BIA, for its part, has long rejected the interpretation of

§ 1101(a)(22) that we advanced in Morin. See Matter of

Tuitasi, 15 I. & N. Dec. 102, 103 (BIA 1974) (holding that

§ 1101(a)(22)(B) does not confer nationality on aliens who

claim only to owe permanent allegiance to the United States).

The BIA reaffirmed this position in In re Navas-Acosta, 23 I.

& N. Dec. 586, 588 (BIA 2003), which was decided after

Morin. Drawing on the historical meaning of the word "na-

tional" and the statutory framework of the INA, the BIA con-

cluded that § 1101(a)(22) does not provide a method for

acquiring United States nationality; rather, "nationality under

the Act may be acquired only through birth or naturalization."

Navas-Acosta, 23 I. & N. Dec. at 588. Referencing the spe-

cific language of § 1101(a)(22)(B), the BIA explained that

"whether one ‘owes permanent allegiance to the United

States[ ]’ is not simply a matter of individual choice. Instead,

it reflects a legal relationship between an individual and a

sovereign." Id. at 587-88 (internal citation omitted). That rela-

tionship may not be created through unilateral declarations of

allegiance, but rather, may only arise in "compliance with the

conditions set by Congress." Id. at 588.

In Morin, we did not so much as mention the BIA’s inter-

pretation of § 1101(a)(22), much less decide the level of def-

erence it should command. In a subsequent decision,

however, we clarified that the BIA’s interpretation is entitled

to Chevron deference. See Fernandez v. Keisler, 502 F.3d

337, 343-47, 349-51 (4th Cir. 2007). Fernandez was a

removal case in which the petitioner, a permanent resident

alien, claimed to be a United States national under Morin

PATEL v. NAPOLITANO 7

because he had applied for citizenship, while the BIA argued

that he was an alien subject to removal because he had not

completed the naturalization process. Fernandez, 502 F.3d at

339-40. To resolve the question, we first determined that the

Chevron framework extends to the BIA’s interpretation of the

INA even in nationality claims.1 Id. at 342-46. We then deter-

mined that § 1101(a)(22)(B) is ambiguous because Congress

did not "directly address[ ] the precise question" of when a

person should be deemed to owe permanent allegiance to the

United States. Id. at 348 (quoting Chevron, 467 U.S. at 843)).

Then, after analyzing the historical meaning of the term "na-

tional" and the text and structure of the INA, we concluded

that the BIA’s interpretation should be given controlling

weight because it is not "arbitrary, capricious, or manifestly

contrary to the statute." Id. at 351 (quoting Chevron, 467 U.S.

at 844).

In National Cable & Telecommunications Association v.

Brand X Internet Services, 545 U.S. 967 (2005), the Supreme

Court held that "[b]efore a judicial construction of a statute,

whether contained in a precedent or not, may trump an agen-

cy’s, the court must hold that the statute unambiguously

requires the court’s construction." 545 U.S. at 985. Applying

that principle in Fernandez, we concluded that Morin did not

trump the BIA’s interpretation of § 1101(a)(22) because

Morin "did not hold that its interpretation was the only one

possible." Fernandez, 502 F.3d at 348. Morin merely assumed

that "§ 1101(a)(22) confers, rather than describes, nationality

. . . without saying anything, one way or the other, about

whether the statute dictated such an interpretation." Id.

"[F]aced with the question of whether a noncitizen’s natural-

1

In so ruling, we disagreed with some of our sister circuits, which have

declined to afford Chevron deference to the BIA’s interpretation of the

INA in nationality claims, reasoning that Congress placed the determina-

tion of nationality claims exclusively in the hands of the courts. See Alwan

v. Ashcroft, 388 F.3d 507, 510 (5th Cir. 2004); Perdomo-Padilla v. Ash-

croft, 333 F.3d 964, 967 (9th Cir. 2003).

8 PATEL v. NAPOLITANO

ization application is enough to confer nationality," the Morin

court "settled upon what it thought was, at the least, a sensible

construction of [the statute] but it did not hold that its inter-

pretation was the only one possible." Id.

We are bound by our holding in Fernandez that the BIA’s

interpretation of § 1101(a)(22) must be given controlling

weight under Chevron and Brand X, notwithstanding Morin.

That issue was a question of first impression before the Fer-

nandez court, which we are not free to revisit. As we

explained in Fernandez, although Morin did not need to say

in "so many magic words" that its interpretation was the only

one permissible, the court’s statutory analysis, admittedly

without having the benefit of Brand X, fell short of showing

"that the plain language of the statute was controlling and that

there existed no room for contrary agency interpretation."

Fernandez, 502 F.3d at 347-48.

We thus conclude that Patel cannot state a claim to be a

United States national under Morin because we must defer to

the BIA’s contrary, post-Morin interpretation of

§ 1101(a)(22). See In re Navas-Acosta, 23 I. & N. Dec. 586,

588 (BIA 2003). The BIA has not changed its position that

§ 1101(a)(22) does not confer nationality on aliens who claim

only to have demonstrated permanent allegiance to the United

States. Under Brand X, we must defer to the BIA’s interpreta-

tion. See Brand X, 545 U.S. at 985. Any claim Patel might

have under Morin is therefore foreclosed.

The Supreme Court’s recent decision in U.S. v. Home Con-

crete & Supply, LLC, 132 S. Ct. 1836 (2012), does not alter

our conclusion. In Home Concrete, the Court ruled that its

prior decision in Colony, Inc. v. Commissioner, 357 U.S. 28

(1958), controlled over a contrary interpretation of the tax

code by the IRS Commissioner. Home Concrete, 132 S. Ct.

at 1844. Although Colony, which was decided thirty years

before Chevron, acknowledged that the statutory text at issue

was not "unambiguous," the Home Concrete plurality rea-

PATEL v. NAPOLITANO 9

soned that "the linguistic ambiguity noted" did not reflect "a

post-Chevron conclusion that Congress had delegated gap-

filling power"; quite the contrary, Colony’s exercise in statu-

tory interpretation made clear that it "thought that Congress

had ‘directly spoken to the question at hand,’ and thus left

‘[n]o gap for the agency to fill.’" Home Concrete, 132 S. Ct.

at 1844 (quoting Chevron, 467 U.S. at 842–43). Specifically,

Colony had weighed the textual arguments on both sides,

examined the statute’s legislative history, determined that the

Commissioner’s interpretation would create incongruity in the

tax law, and arrived at its interpretation while "aware it was

rejecting the expert opinion of the Commissioner of Internal

Revenue." Home Concrete, 132 S. Ct. at 1844. Thus, the

Home Concrete plurality concluded that Brand X did not

require the Court to defer to the Commissioner’s interpreta-

tion. Id. at 1843-44.2

This case is distinguishable. Unlike Colony, Morin’s exer-

cise in statutory interpretation does not make clear that it

"thought that Congress had ‘directly spoken to the question at

hand,’ and thus left ‘[n]o gap for the agency to fill.’" Home

Concrete, 132 S. Ct. at 1844 (quoting Chevron, 467 U.S. at

842–43). Morin did not analyze competing textual arguments,

did not examine the legislative history of § 1101(a)(22), did

not consider potential incongruity in the INA caused by

Morin’s interpretation, and did not expressly consider and

knowingly reject the BIA’s interpretation of the statute.

Although Patel claims that Home Concrete allows us to infer

that Morin was aware of the BIA’s interpretation because it

predated Morin, we find no support for that inference. In Col-

ony, the IRS Commissioner was a party to the case and the

2

Justice Scalia concurred in the judgment, disagreeing with the plurali-

ty’s view that Colony’s admission of statutory ambiguity did not render

null its precedential effect under Brand X. However, he believed that Col-

ony should control based on justifiable taxpayer reliance. Home Concrete,

132 S. Ct. at 1847-49 (Scalia, J., concurring in part and concurring in the

judgment).

10 PATEL v. NAPOLITANO

Court expressly considered and rejected the Commissioner’s

interpretation of the tax code. See Colony, Inc. v. C.I.R., 357

U.S. at 32-33, 36-37. Nothing in Morin suggests an awareness

of the BIA’s interpretation.

Nor are we persuaded by Patel’s contention that we should

afford Chevron deference to the BIA’s interpretation of

§ 1101(a)(22) only when the statute is at issue in removal

cases. Whether or not the Chevron framework applies

depends on whether Congress intended to delegate authority

to an agency to speak with the force of law when clarifying

ambiguous parts of a particular statute, not on the type of case

in which that statute is applied. See United States v. Mead

Corp., 533 U.S. 218, 229 (2001) (holding that the Chevron

framework applies when it is "apparent from the agency’s

generally conferred authority and other statutory circum-

stances that Congress would expect the agency to be able to

speak with the force of law when it addresses ambiguity in the

statute or fills a space in the enacted law"); Chevron, 467 U.S.

at 843-44 (holding that courts should defer to reasonable

agency constructions of a statute when "there is an express

delegation of authority to the agency to elucidate a specific

provision of the statute").

We are not free to selectively apply Chevron deference to

an agency’s interpretation of a statute in some cases, but not

in others. "[T]he meaning of words in a statute cannot change

with the statute’s application." United States v. Santos, 553

U.S. 507, 522 (2008) (citing Clark v. Martinez, 543 U.S. 371,

378 (2005)). "To hold otherwise ‘would render every statute

a chameleon’ and ‘would establish within our jurisprudence

. . . the dangerous principle that judges can give the same stat-

utory text different meanings in different cases.’" Id. at 522-

23 (quoting Clark, 543 U.S. at 382, 386). Thus, the BIA’s

interpretation must be given controlling weight whenever the

statute is applied. See Leocal v. Ashcroft, 543 U.S. 1, 11 n.8

(2004)("[W]e must interpret the statute consistently, whether

PATEL v. NAPOLITANO 11

we encounter its application in a criminal or noncriminal con-

text . . . .").

Patel does not claim to be a United States national under

the BIA’s interpretation of § 1101(a)(22). We therefore hold

that he fails to state a claim.3

III.

Nothing in our opinion prevents Patel from petitioning the

Federal Bureau of Prisons to extend the benefits provided to

United States nationals to permanent resident aliens, or from

challenging the basis for drawing such a distinction among

inmates through other means, political or legal. We hold only

that on the facts alleged, Patel does not state a claim to be a

United States national under the INA. For these reasons, we

affirm the judgment.

AFFIRMED

DAVIS, Circuit Judge, dissenting:

Respectfully, I dissent.

It is true, of course, that we have "the power to affirm a

judgment for any reason appearing on the record, notwith-

standing that the reason was not addressed below." McMahan

v. Int’l Ass’n of Bridge, Structural and Ornamental Iron

Workers, 964 F.2d 1462, 1467 (4th Cir. 1992) (citation omit-

ted). See also Blum v. Bacon, 457 U.S. 132, 137 n.5 (1982)

("[A]n appellee may rely upon any matter appearing in the

record in support of the judgment below."). Because we can,

however, does not mean we should.

3

The government argues that Patel also fails to state a claim under

§ 1503(a) because he fails to allege the deprivation of a right or privilege

of nationality. Given that Patel’s complaint fails for other reasons, we do

not reach that issue.

12 PATEL v. NAPOLITANO

On appeal from a district court’s Rule 12(b)(6) dismissal of

a complaint, we take the allegations of the complaint as true.

Coleman v. Md. Court of Appeals, 626 F.3d 187, 189 (4th Cir.

2010), aff’d, 132 S. Ct. 1327 (2012). Kamal Patel is a lawful

permanent resident of the United States who arrived in this

country with his family at an early age. Patel registered for the

Selective Service when he was 18. He also has applied for

United States citizenship. He has sent sworn declarations of

his allegiance to the United States to the President, the Secre-

tary of State, and an Immigration Law Judge.

In 1992, Patel was convicted of a drug offense; he has been

incarcerated in the United States since that time. He is sched-

uled to be released on July 28, 2014, according to the Bureau

of Prisons ("BOP") website. Because the BOP classifies Patel

as an alien, he is not eligible for certain prison programs

available only to United States nationals. These include pre-

community release, pre-community placement, participation

in the Residential Drug Abuse Program, participation in the

Life Connections Program, and halfway house placement.

Patel filed a complaint in June 2010 in the United States

District Court for the Eastern District of North Carolina seek-

ing a declaratory judgment under 28 U.S.C. § 22011 and 8

U.S.C. § 1503(a)2 that he is a national of the United States.

The district court, however, analyzed the claim by stating that

it was cognizable under 28 U.S.C. § 2241 or 28 U.S.C.

§ 2255, which deal with habeas actions, or Bivens v. Six

Unknown Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1971), which allows individuals to seek dam-

ages for certain kinds of constitutional violations committed

by federal agents. Patel did not seek relief under Bivens or

1

This section authorizes a federal court to "declare the rights and other

legal relations of any interested party seeking such declaration, whether or

not further relief is or could be sought." 28 U.S.C. § 2201(a).

2

This section spells out the procedure for seeking a declaration of

United States nationality. 8 U.S.C. § 1503(a).

PATEL v. NAPOLITANO 13

either of those statutes, however, nor did he mention any of

them in his complaint. Nonetheless, the district court quoted

an unpublished opinion from the United States District Court

for the Southern District of Ohio, stating, "[I]nmates do not

have any federal constitutional right to participate in rehabili-

tative programs. Nor does an inmate have any constitutionally

protected interest in a particular housing assignment or trans-

fer to a particular prison." J.A. 44 (quoting Ahmad v. United

States, No. 2:08-CV-364, 2009 WL 2486004, at *2 (S.D.

Ohio Aug. 11, 2009) (unpublished) (alteration in original)).

The district court concluded, "Thus, assuming without decid-

ing that Patel’s claim is cognizable, the claim fails on the mer-

its." This appeal followed, in the course of which we

appointed counsel to represent Patel.

I endorse judicial efficiency as much as any judge, espe-

cially for busy district courts, but there are untold benefits in

permitting district courts to correct their own errors; this will

sometimes require defendants in an inmate’s suit to respond,

by motion or answer, to a complaint. As the majority

acknowledges, ante at 3, the district court erroneously inter-

preted Patel’s complaint as asserting that he had a right to par-

ticipate in prison programs, and so the court dismissed the

complaint for failure to state a claim, noting that inmates do

not have a constitutional right to participate in rehabilitative

programs. That, however, is a different question from whether

Patel is eligible for participation in such programs, an issue

the district court failed to analyze. Accordingly, I would not

reach the merits and would instead simply vacate the judg-

ment and remand the case to the district court for further pro-

ceedings, including analysis of Patel’s claim under 8 U.S.C.

§ 1503.

Eschewing a remand, the majority elects to reach the merits

of the claim the district court never examined and concludes

that Patel failed to state a claim upon which relief could be

granted. Indeed, the majority holds that it is impossible for

him to state a declaratory judgment claim to the privileges of

14 PATEL v. NAPOLITANO

a "national of the United States," citing, inter alia, Fernandez

v. Keisler, 502 F.3d 337 (4th Cir. 2007), cert. denied sub nom.

Fernandez v. Mukasey, 555 U.S. 837 (2008). I cannot join in

this conclusion. Were I to reach the merits, for the reasons

well-stated by Judge Motz in her dissenting opinion in Fer-

nandez, id. at 352, I would conclude that Patel has stated a

cognizable claim.3 See United States v. Morin, 80 F.3d 124,

126 (4th Cir. 1996); see also McMellon v. United States, 387

F.3d 329, 333 (4th Cir. 2004) (en banc) ("[W]e have made it

clear that, as to conflicts between panel opinions, application

of the basic rule that one panel cannot overrule another

requires a panel to follow the earlier of the conflicting opin-

ions. See Booth v. Maryland, 327 F.3d 377, 383 (4th Cir.

2003).").

3

While I fully understand the convoluted bases for this circuit’s assault

on the continuing legitimacy of Morin, as begun in Fernandez and

enlarged upon by the majority here, in my view, Morin remains binding

circuit precedent that can only be abrogated by an en banc decision. In any

event, there is something odious in the government arguing (in Fernandez

and in the case at bar) the opposite of what it argued in Morin, when it

suited the government’s purpose. See Gov’t Brief, United States v. Morin,

1995 WL 17054182, at *12 n.3 (Sept. 15, 1995) ("Consequently, given

[the intended murder victim’s] pending application for citizenship, it can

fairly be said that he owed allegiance to the United States [and therefore

was a national of the United States]."). Manifestly, despite the criticisms

leveled at Judge Wilkinson’s Morin opinion in Fernandez and in the

majority opinion here, the Morin panel did not adopt its reading of 8

U.S.C. § 1101(a)(22) sua sponte and without due deliberation; it did so at

the urging of the government. And, after all, the Attorney General, the rel-

evant "executive department" involved here, see ante at 5, superintends

both the Board of Immigration Appeals as well as the Criminal Division

of the Department of Justice. It is indeed curious that a statute this Court

had no difficulty interpreting in 1996 (in a manner urged by the agents of

the Attorney General) now requires deference to, and a contrary interpre-

tive aid of, the BIA, when the very words of the statute have not changed.