A quirky question of statutory construction resulted in the petitioner getting one more chance to avoid removal. The petitioner came to the U.S. from India without papers. Removal proceedings commenced, and the petitioner fled. In absentia, he was ordered removed. Later, he married in the U.S. and petitioned for asylum under a different name. That petition was granted, and he became a lawful permanent resident. He later sought naturalization but did not disclose the earlier removal order. No one discovered it, and he was granted citizenship. Soon after that, he pled guilty to federal drug distribution charges. The prior removal order somehow resurfaced, and DHS charged him with removability under the aggravated felony provision of the Immigration and Nationality Act (INA) for having been convicted of an offense relating to illicit trafficking in controlled substances and the controlled substances provision of the INA for having been convicted of a controlled substances crime. The petitioner argued that he was a citizen at the time of his conviction, and those provisions only applied to aliens. After considering the Supreme Court’s rulings on similar issues and considering Chevron deference issues, the Third Circuit interpreted the INA to preclude the petitioner’s removal because he was not an alien at the time of his conviction.
