Nijhawan v. Holder

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Authorship: Stanford student Brian Goldman

Contents

[edit] Briefs and Documents

Docket: 08-495

Issue: Whether the petitioner’s conviction for mail, bank and wire fraud qualified as an aggravated felony under the immigration laws, the penalty for which is lifetime banishment from the country.

Merit briefs

Amicus briefs

Oral Argument: Transcript

Decision: Affirmed in an opinion by Justice Breyer

[edit] Pre-Argument Articles

[edit] Argument Preview

Much like Flores-Figueroa v. United States (No. 08-108), argued earlier this Term, Nijhawan v. Holder (08-495) presents the Court with conflicting interpretations of a statute that sits at the intersection of federal criminal law and immigration law and policy. A provision of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii), makes “[a]ny alien who is convicted of an aggravated felony . . . deportable.” As relevant here, Section 1101(a)(43) defines an aggravated felony to include, among others, “an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” (Subparagraph (M)(i)), and a conspiracy to commit such an offense (Subparagraph (U)). On Monday, April 27, in Nijhawan v. Holder, the Court will consider whether, for an alien to be deportable on account of an aggravated felony, the amount of loss must actually have been found beyond a reasonable doubt by a jury, or whether an alien’s stipulation for sentencing purposes that the loss exceeded $100 million is sufficient for the conviction to qualify as an aggravated felony.

[edit] Background

In 2002, petitioner Manoj Nijhawan, an Indian citizen and lawful permanent resident in the United States, was arrested for his involvement in a conspiracy to commit fraud against major banks by obtaining loans for a metal trading company under false pretenses. As the assistant to the CFO, Nijhawan was one of fifteen defendants indicted and one of four to be convicted on conspiracy, fraud, and money laundering charges. The amount of money lost or laundered was not an element of any of the offenses, and the district court in New York explicitly instructed the jury that no specific finding of loss was needed to convict. To resolve disputed issues, including the potential effect of the Court’s decision in Booker v. United States, which was then pending before the Court, Nijhawan and federal prosecutors agreed to set his Sentencing Guidelines level based upon a total loss in excess of $100 million for sentencing purposes, while allowing him to seek a large downward departure to put his sentencing range at forty-one to fifty-one months. Aware of the possible immigration consequences of such an agreement, everyone involved – the court, the prosecutor, and Nijhawan – agreed that the stipulation was only to be used for sentencing purposes.

While Nijhawan was incarcerated, the Government began removal proceedings against him. A removal order was entered, and the Board of Immigration Appeals (BIA) affirmed, finding that even if the amount of loss was not an element of Nijhawan’s offenses, it could look beyond the conviction itself to determine the amount of loss. The BIA rejected Nijhawan’s argument that it should adopt a “categorical” approach, which would require the amount of loss to be either an element of the convicted offenses or explicitly found by a jury. On appeal, the Third Circuit affirmed, in a divided opinion that acknowledged contrary authority from other circuits. In that court’s view, the amount of loss needs only to be sufficiently “tethered” to the conviction. Because most fraud statutes do not contain loss as an element of the offense, the court reasoned, Nijhawan’s construction “would render [Subparagraph (M)(i)] largely inoperative, for rarely will a defendant be convicted of a fraud offense with loss as an element found by the jury or explicitly admitted to in a guilty plea.” Additionally, the court expressed concern that adopting the “categorical” approach would result in fewer deportations.

[edit] Petition for Certiorari

Nijhawan filed a petition for certiorari, in which he advanced three main arguments. First, he highlighted a 3-3 split among the circuit courts on the question whether removability under the INA could be established by facts not found beyond a reasonable doubt during criminal proceedings. The Second, Ninth, and Eleventh Circuits had adopted a “modified categorical” approach, which rejected reliance upon unproven facts such as those in sentencing determinations, while the First and Fifth Circuits had previously come down on the side of the Third.

Second, Nijhawan argued that split was untenable because it allowed the Government to engage in forum shopping, given its power to transfer aliens in removal proceedings to detention centers in other circuits with more favorable law. Moreover, the split violated Article I, § 8 of the Constitution, which requires a uniform rule of naturalization. Because anyone convicted of an aggravated felony would not be able to naturalize, aliens with convictions like Nijhawan’s would not be able to naturalize in three circuits but would be eligible in three others.

Finally, Nijhawan contended that the Third Circuit was wrong on the merits, advancing arguments about Subparagraph (M)(i)’s plain text, administrability, and the rule of lenity that he would later repeat in his brief on the merits (see below).

In its brief in opposition, the Government acknowledged that the Third Circuit’s “analysis diverges from decisions of other courts of appeals,” but it nonetheless concluded that “[f]urther review is not warranted.” The Government began by responding to Nijhawan’s arguments on the merits and defending the decision below, again in a preview of its later merits briefing.

Next, the Government addressed the circuit split. It cast doubt on the continuing validity of the Second, Ninth, and Eleventh Circuit decisions in light of an intervening decision by the BIA, which had clarified that when a “removal charge requires proof of some fact that is not an element of the predicate offense,” the immigration courts may consider “any evidence[] otherwise admissible in removal proceedings”—regardless whether such facts were found at trial. The Second and Eleventh Circuit decisions predated the BIA ruling, and although the Ninth Circuit issued its decision after the BIA clarification, the court did not consider the ruling in its opinion. Thus, the Government recommended, certiorari should be denied to allow these circuits to revisit the issue in light of the BIA ruling and, in particular, accord the agency’s determination the deference required by N.C.T.A. v. Brand X Internet Services.

In his reply brief, Nijhawan dismissed the possibility that the circuit split would resolve itself as “wholly speculative.” He rejected the Government’s argument that any Brand X deference would apply anyway, given the plain meaning of the statutory text, the rule of lenity, and the fact that Subparagraph (M)(i) is related to federal criminal statutes, agency interpretations of which are not accorded Chevron deference.

The Court granted certiorari on January 16, 2009, but it limited its grant to the question formulated by the Government in its brief in opposition. Rather than address Nijhawan’s broader questions of whether Subparagraph (M)(i) requires the amount of loss to be an element of the conviction, and whether the rule of lenity should apply, the Court agreed to consider only whether Nijhawan’s conviction qualified as an aggravated felony “where petitioner stipulated for sentencing purposes that the victim loss associated with his fraud offense exceeded $100 million . . . .”

[edit] Merits Briefs

In his brief on the merits, Nijhawan focuses heavily on the plain language of Subparagraph (M)(i) to argue that Congress codified a categorical approach. After reviewing the history of the categorical approach and legislation authorizing deportation, Nijhawan begins by emphasizing the words “convicted of” in the statute. Removability is premised on what the alien has actually been convicted of, he suggests, not merely what he has done. Nijhawan points to other immigration provisions that are triggered by an alien’s conduct, rather than a formal conviction, to argue that deportability permitted only by a conviction is to be understood on its plain terms.

Next, Nijhawan analyzes the grammatical structure of the “aggravated felony” definition in Subparagraph (M)(i). He suggests that the phrase “an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” contains a “restrictive clause,” beginning with “that,” which defines an offense to require both (1) fraud or deceit and (2) a minimum loss. Without elaboration, he explains that excluding the “in which” phrase from the restrictive clause would render the word “that” a nullity. Looking to the structure of other types of aggravated felonies defined in Subparagraph (M), Nijhawan then observes that when Congress intended to use a “qualifier” to describe a circumstance outside of the conviction, it uses the language “for which.” In his view, “for which”/“in which” distinction is apparent on the face of the text; by contrast, the Third Circuit’s alternative concept of “tethering” is invented out of whole cloth.

Nijhawan next argues that post-conviction sentencing determinations or restitution orders are inappropriate substitutes for jury findings of the amount of loss, because the burden of proof in such proceedings (preponderance of the evidence) is lower than in the criminal trial (beyond a reasonable doubt) or in immigration court (clear and convincing evidence). Nijhawan argues that his stipulation at sentencing did not alter the jury’s verdict; moreover, he made it after agreeing with prosecutors and the district court that the amount of loss issue would be reserved for immigration proceedings.

Nijhawan moves on to describe the categorical approach, as applied to removal cases generally and as applied here. He begins with the approach’s history, and then describes its two forms: the “formal categorical” approach, in which the elements giving rise to deportability must be found among the statutory elements of the offense itself, and the “modified categorical” approach, which permits a carefully circumscribed inquiry into whether what was found in the adjudication of guilt would satisfy the grounds of removability. He notes that either approach would mandate reversal: None of the statutes under which he was convicted have an element of the offense the amount of loss, so the formal categorical approach could not be satisfied. And the jury did not make any finding of the amount of loss—indeed, Nijhawan’s express request that it be instructed to do so was denied—so the modified categorical approach could not be satisfied either. To show that the formal categorical approach would not set an impossibly high bar to deportation, Nijhawan provides an appendix of federal and state statutes that do require the amount loss as an element.

With regard to the practical consequences of his position, Nijhawan briefly addresses the Third Circuit’s view that it would lead to fewer deportations, dismissing that as “a policy matter for Congress to address.” He also notes that while a categorical approach would establish a clear, bright-line test that would guide government prosecutors’ actions (e.g., by prompting them to secure defined loss amounts in plea agreements or jury verdicts), the Third Circuit’s “tethering” test would shunt critical fact-finding into ill-equipped immigration courts.

Finally, Nijhawan argues that to the extent Subparagraph (M)(i) is ambiguous, the rule of lenity or narrow construction should apply. The BIA’s precedential decision is not due any deference because “aggravated felony” issues implicate federal criminal law and it thus does not resolve the ambiguity. Moreover, he suggests that the BIA decision rests on flawed reasoning, does not purport to be retroactive, and would lead to unconstitutional non-uniformity of naturalization standards by allowing Immigration Judges to reach different results in similar cases.

In its brief on the merits, the Government begins with the plain text of Subparagraph (M)(i) and concludes that the amount of loss need not be an element of a qualifying offense. First, it argues that the amount-of-loss phrase beginning with “in which” is itself a restrictive clause, independent of the phrase containing the requisite elements of a qualifying “offense.” Second, it observes that other types of aggravated felonies defined in § 1101(a)(43) specify that certain factors be found “as an element” of the offense, but such specification is absent in Subparagraph (M)(i). Relying in part on this Term’s decision in United States v. Hayes, it suggests that this omission is meaningful. Third, it dismisses Nijhawan’s argument that the deportation provision’s use of the phrase “convicted of” offers any assistance, because it simply modifies “an aggravated felony,” the definition of which is in dispute. Fourth, it notes that Subparagraph (M)(ii), which immediately follows, contains an almost identical loss criterion but just a single enumerated offense—federal tax evasion—which does not have as an element any specific amount of loss. Because a formal categorical approach would render the definition a nullity, the Government argues it must not be the approach Congress intended in either Subparagraph (M)(ii) or Subparagraph (M)(i), which must be construed in pari materia. The Government rejects the modified categorical approach as well, and concludes that the amount of loss is a mere qualifying condition, like others found in § 1101(a)(43).

The Government next criticizes Nijhawan’s construction of Subparagraph (M)(i) as “frustrat[ing] Congress’s intent to remove criminal aliens” by precluding its application to the most common federal criminal fraud offenses and most state-law fraud offenses, except the “scattered,” “odd patchwork of federal and state fraud offenses” Nijhawan collected in his brief. Consequently, the Government concludes, the Third Circuit was correct to hold that Nijhawan’s rule would render Subparagraph (M)(i) “largely inoperative.” The government also lambastes Nijhawan’s suggestion that prosecutors simply ensure they secure jury findings of (or plea agreements with) loss amounts, finding it to be at odds with Congress’s intent to prevent criminal proceedings from being manipulated to affect immigration consequences, particularly where federal government pressures on state prosecutors would create commandeering problems.

Turning to Nijhawan’s affirmative case for the categorical approach, the Government notes that the INA simply does not require it, and the Court’s immigration case law has remained silent on the question. Moreover, the Government distinguishes the Court’s sentencing enhancement precedents that established the categorical approach, finding them to be rooted in Sixth Amendment concerns about the role of jurors as factfinders—concerns not present in civil immigration proceedings. To the extent that those prior decisions rested on concerns that sentencing courts would retry criminal defendants to determine relevant facts, the Government argues, those practical difficulties are not present here because the BIA and the Attorney General have said that immigration courts’ de novo factual inquiries are worthwhile. And in response to Nijhawan’s concerns about the burden of proof, the Government notes that the burden in immigration proceedings is unaffected, so the immigration court would need to find clear and convincing facts in outside evidence (such as a sentencing report).

Whatever ambiguity remains, the Government insists, must be resolved by deferring to the Attorney General’s interpretation. And principles of lenity should apply only after deferring to that interpretation; otherwise, the Attorney General’s authority to interpret the INA would be meaningless. Moreover, deference is not precluded by Subparagraph (M)(i)’s connection to criminal law; the Subparagraph is purely internal to the INA, as opposed to Title 18 of the U.S. Code, and most of its applications occur in the civil immigration context.

In his reply brief, Nijhawan again makes his case for a categorical approach and rebuts some of the Government’s stronger arguments. First, he rejects the Government’s reading of the “that” and “in which” clauses, suggesting instead that the last antecedent rule means the “in which” clause, containing the amount-of-loss requirement, should limit the “that” clause containing the elements. Alternatively, he argues that even if the Government is correct that the amount-of-loss requirement modifies “an offense” directly, a defendant must nonetheless be “convicted of” that amount of loss. He also attempts to distinguish Hayes, cited by the Government, as addressing a structurally different statute and posing problems not present here. Next, he cites the U.S. Attorney’s Manual and the DOJ Criminal Tax Manual to argue that because Subparagraph (M)(ii) clearly “contemplate[s] application of the modified categorical approach,” applying the approach to Subparagraph (M)(i) would pose no conflict.

Nijhawan next explains why his reading would not frustrate Congress’s purposes. First, he again emphasizes that Congress “legislated against the backdrop of the categorical approach” and dismisses legislative history concerning deporting criminal aliens that post-dates the enactment of Subparagraph (M)(i). Second, he argues that his interpretation would not preclude the Subparagraph’s application to most criminal fraud statutes, because “in accordance with past practice,” prosecutors could include amount-of-loss provisions in plea agreements. This would pose no more commandeering problems, he suggests, than the Government’s ongoing efforts to foster local government support for federal immigration enforcement. Moreover, in addition to the “majority of states” he identified where loss is an element of a fraud offense, he notes that the modified categorical approach would further include states that follow the Model Penal Code approach to fraud offenses: requiring a jury finding of the amount of loss to determine the grade of the offense.

Next, Nijhawan responds to some of the Government’s major points regarding the categorical approach. He argues that the Sixth Amendment concerns from the Court’s sentencing enhancement cases are implicated here, because the “aggravated felony” definition applies also to a criminal immigration statute. On the question of what burden of proof the amount of loss would be held to, he suggests that “the government gets this issue backward” because by requiring a conviction as the predicate for deportation, the statute requires proof beyond a reasonable doubt.

Nijhawan then expands his previous argument for the rule of lenity. He emphasizes the connection to the criminal immigration statute – an offense that is frequently prosecuted – to suggest that the traditional rule of lenity should apply, and no deference should be due to the BIA, because the Court’s interpretation of Subparagraph (M)(i) will greatly impact future criminal prosecutions in which the provision would be construed uniformly. The Court’s prior cases interpreting other aspects of the definition of “aggravated felony” have applied the rule of lenity and have not mentioned agency deference, he notes. As an alternative, he argues again for the rule of lenity or narrow construction in the immigration context, challenging as inaccurate the Government’s claim that lenity comes into play only after deference has been accorded.

[edit] Oral Argument Recap

At Monday’s oral argument in Nijhawan v. Holder, the Supreme Court struggled to square the text of an immigration statute permitting deportation for prior “aggravated felony” convictions with the practical consequences that a plain-text reading would have on the government’s ability to deport aliens with criminal histories. By the end of the argument, it was not clear that the petitioner, an Indian immigrant fighting deportation, had convinced a majority of the Court that his prior felony conviction was not an “aggravated” one.

Arguing for the petitioner, New Jersey immigration attorney Thomas Moseley began by contending that the “time-honored categorical approach” used with statutes relating to criminal law should apply in this case, in which an immigration statute defines an “aggravated felony” as a crime of fraud or deceit in which the amount of loss exceeded $10,000. Under that approach, an alien could be deported for “conviction of” an aggravated felony only if the amount of loss was actually a statutory element of the crime.

Justice Kennedy asked almost immediately about petitioner’s alternative argument: that the “modified categorical approach” should apply, requiring at a minimum that the amount of loss be established specifically by the jury. Inquiring about the practical effects of such a rule – a theme that would recur throughout the argument – Justice Kennedy asked how often such special verdicts are returned. Moseley replied that it is entirely up to the government whether to seek out such verdicts, or more commonly, to seek admissions as to the amount of loss during plea colloquies.

This response prompted a number of objections to petitioner’s proposed rule. Justice Ginsburg wondered why a judge would seek such a special verdict, which might confuse the jury because it would be irrelevant to the offense charged. Moseley downplayed the risk of juror confusion, noting that most cases are resolved by guilty pleas. Justice Alito then asked why the defendant’s admission in a plea colloquy of the amount of loss should have a different effect than the defendant’s stipulation at sentencing of the amount of loss – as petitioner had done. Moseley began to explain that the burden of proof is much lower at sentencing, but Justice Souter interjected that the burden of proof should be irrelevant when the defendant “definitively resolves [the issue] by admission.”

Justice Souter then returned to the “categorical approach,” suggesting that a textual argument would not support the “modified categorical approach,” and so “you’ve got to go the whole hog or you get nothing.” He then pressed Moseley about the plausibility of that approach when so few statutes actually contain an amount of loss requirement as an element of a crime. “[I]t would be passing strange,” Justice Souter suggested, “to define the offense by reference to a $10,000 figure as an element of the offense . . . which would cut the compass of the statute down to three offenses.” Although Moseley pointed out that many state statutes contain such an element, he met strong objections from Justices Souter and Ginsburg, who protested that this would create an “utter and . . . unjust patchwork” of immigration consequences across states, which would amount to “treating people who do the identical thing differently” based on their state’s fraud statute.

Justice Stevens returned the argument to the modified categorical approach, which Justice Scalia appeared to criticize as “a deus ex machina which is intended to blunt the government’s argument that very few statutes would be covered by this.” Moseley again insisted that it would be up to the government to “choose[] to prosecute the case by seeking a determination of the . . . amount in a jury charge,” to “convict” the defendant of the requisite amount of loss for immigration purposes. As the questioning subsided, Moseley concluded that any ambiguity in the statute should be resolved in favor of the alien. Justice Scalia encouraged him to use his rebuttal to address the government’s argument for agency deferral, because “[w]e usually do that.”

For the government, Assistant to the Solicitor General Curtis Gannon opened with an attack on the formal categorical approach as implausible, but Justice Scalia immediately asked him about the modified categorical approach. Gannon noted that the approach would present practical difficulties: The government could only seek special interrogatories prospectively, so existing convictions could not serve as bases for deportation. And, knowing the immigration consequences, aliens would be unlikely to concede the amount of loss in guilty pleas. Moreover, he noted that the government would be reluctant to prove an amount of loss during a criminal proceeding when that fact would be extraneous to that proceeding, because it could confuse the jury or at least would be “odd.”

Pivoting back to his argument that the categorical approach is implausible, Gannon noted that the “mainstays” of federal fraud prosecutions – such as mail and wire fraud – would be “read out” of the aggravated felony definition. Instead, the amount-of-loss requirement should be seen as a “limiting factor” that merely identifies a subset of instances of an offense as an aggravated felony. Justice Alito shifted gears, asking how the loss would be measured in the government’s reading. During an exchange with Justices Alito, Scalia, and Ginsburg, Gannon explained that the loss determination would have to be established during removal proceedings by clear and convincing evidence – and a sentencing stipulation such as petitioner’s would be persuasive evidence there. Moreover, the relevant “loss” is the loss from the entire fraud scheme, not just the portion for which the defendant was responsible. Justice Stevens then posed a hypothetical to clarify: Could an alien be convicted for participation in a fraud scheme without the amount of loss having been established, and then be put in removal proceedings, during which the government establishes the amount of loss for the first time? After initially resisting the hypothetical, Gannon acknowledged the government could do so.

The Chief Justice next seized on the distinction between an aggravated felony and an ordinary one. He noted that although most other offenses defined as aggravated felonies were “aggravated” based on the elements of the offenses themselves – such as firearms offenses, child pornography offenses, and national security offenses – what made fraud “aggravated” was the particular amount of loss. And “if the only thing that makes it aggravated is . . . something you don’t have to prove beyond a reasonable doubt, [then] is that really aggravated?” Gannon replied that other offenses listed among the aggravated felonies have similar “limiting factors,” such as ones that depend on the actual sentence imposed, which clearly would not be an element of the offense itself. Gannon suggested subtly that although the Chief Justice might not think that simple fraud could become an “aggravated” felony merely because the amount of loss in fact exceeded $10,000, Congress would – and did – disagree.

Finally, Justice Stevens returned to petitioner’s primary argument in his brief on the merits: If the facts that make the fraud “aggravated” are not proven by a reasonable doubt, then a defendant has not been properly “convicted of” the aggravated felony that forms the basis for removal. Correcting an observation made by Justice Scalia, Justice Stevens noted that because “convicted of” modifies “an aggravated felony,” rather than “an offense that involves fraud or deceit, a conviction on the fraud aggravator would require proof beyond a reasonable doubt. Gannon responded by again pointing to limiting factors in other offenses in the definition, for which a “conviction” on those factors would either be nonsensical or implausible.

During his brief rebuttal, Moseley argued that no deference was warranted to the Board of Immigration Appeals here, because the “aggravated felony” definition would control in future criminal proceedings under a criminal portion of the INA, 8 U.S.C. § 1326(b), and no Chevron deference is required for criminal statutes. In response to Justice Scalia’s suggestion that the government could just prove the amount of loss beyond a reasonable amount in that later prosecution, Moseley submitted that such an outcome would be far more impractical that petitioner’s interpretation.

[edit] Opinion Analysis

After two decisions earlier this Term favoring non-citizens’ interpretations of immigration-related statutes (Flores-Figueroa v. United States and Nken v. Holder), the Supreme Court ruled unanimously for the government on Monday, June 15, in Nijhawan v. Holder. The Court held that to deport an immigrant for committing an “aggravated felony” that “involves fraud or deceit in which the loss to the . . . victims exceeds $10,000,” the underlying fraud offense need not include the minimum loss amount as a statutory element of the crime. Instead, “the monetary threshold applies to the specific circumstances surrounding an offender’s commission of a fraud and deceit crime on a specific occasion,” which could be determined during removal proceedings before an Immigration Court.

Writing for the Court, Justice Breyer began by characterizing the two competing interpretations of the “aggravated felony” definition. A “categorical” interpretation would require that the “generic crime” include the loss amount, such that only a conviction of some offense criminalizing frauds over $10,000 would permit deportation. A “circumstance-specific” approach, on the other hand, would limit the loss-amount trigger “to the specific way in which an offender committed the crime on a specific occasion,” even if the statutory offense itself required no threshold.

Distinguishing cases interpreting the Armed Career Criminal Act (ACCA), which have applied the “categorical” approach, the Court noted that although the “aggravated felony” statute “resembles ACCA in certain respects,” its structure and context suggest that the “circumstance-specific” approach is correct here. Looking to other offenses defined as “aggravated felonies” when certain threshold conditions are present, the Court observed that if the limiting language were required as an element of each crime, rather than a circumstance in a specific instance of the crime, no existing statutes would fit the bill. So “if the [categorization of those offenses as aggravated felonies] is to have any meaning at all, the [limitations] must refer to the particular circumstances in which an offender committed the crime on a particular occasion.” Returning to the fraud offense at issue, the Court found “no widely applicable federal fraud statute that contains the relevant monetary loss threshold,” and only three with thresholds at all, all of which were at least $100,000. The Court asked, rhetorically, “Why would Congress intend [the provision] to apply to only these three federal statutes, and then choose a monetary threshold that, on its face, would apply to other, nonexistent statutes as well?” Because few state fraud statutes would be included either, the Court concluded that Congress would not have intended the provision “to apply in so limited and so haphazard a manner.”

Finally, the Court held that to determine whether the threshold had been met in a given case, the circumstances of an offender’s fraud need not be proven beyond a reasonable doubt nor found specifically by a jury. Those higher burdens had been developed in prior ACCA cases “for a very different purpose,” and are not necessary in civil immigration proceedings that impose a “clear and convincing” standard only. Because in this case Nijhawan had previously stipulated to a loss amount far in excess of $10,000, the Court found that this burden had been met and so his deportation could proceed.

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