FILED
NOT FOR PUBLICATION
MAR 15 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RENE ALBERTO HERRERA- No. 12-72798
CASTANOLA, AKA Rene Alberto
Herrera, Agency No. A030-562-653
Petitioner,
MEMORANDUM*
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 20, 2015
San Francisco, California
Before: M. SMITH and N.R. SMITH, Circuit Judges and SCHEINDLIN,** Senior
District Judge.
Rene Alberto Herrera-Castanola, native and citizen of Mexico, petitions for
review of the decision by the Board of Immigration Appeals (“BIA”) dismissing
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Shira Ann Scheindlin, Senior District Judge for the
U.S. District Court for the Southern District of New York, sitting by designation.
his appeal from an immigration judge’s (“IJ”) decision finding him removable.1
Herrera-Castanola asserts that the IJ and the BIA erred in determining that (1) they
lacked authority to apply the doctrine of equitable estoppel, and (2) the doctrine of
res judicata should not be applied in these removal proceedings. We have
jurisdiction to review final orders of removal and questions of law under 8 U.S.C.
§ 1252. We deny the petition for review.
1. Only Article III courts have the authority to apply the doctrine of equitable
estoppel against the government. See Chang v. United States, 327 F.3d 911, 924
(9th Cir. 2003) (noting that equitable relief “lie[s] outside the scope and
jurisdiction of the [IJs] and the BIA”). Thus, neither the IJ nor the BIA had the
authority to apply the doctrine of equitable estoppel. See id.
2. Applying de novo review, we conclude that the doctrine of res judicata is not
appropriate in this case. See Clark v. Bear Stearns & Co. Inc., 966 F.2d 1318,
1320 (9th Cir. 1992). Herrera-Castanola argues that the Department of Homeland
Security (“DHS”) is prohibited under the doctrine of res judicata from pursuing
this removal action because (A) the May 2004 district court order precluded DHS
from asserting he is an alien, and (B) the reinstatement of the charges against
1
Herrera-Castanola does not challenge the BIA’s conclusion that he is
removable based on his aggravated felony convictions. Thus, that issue is waived.
Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).
2
Petitioner violated our holding in Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th
Cir. 2007). We disagree.
A. Even though the elements of res judicata are met in this action, there
are exceptions to the application of this general rule. See United States v.
Meza-Soria, 935 F.2d 166, 169 (9th Cir. 1991). The Restatement (Second) of
Judgments provides that “relitigation of [an] issue in a subsequent action between
the parties is not precluded” when “[t]here is a clear and convincing need for a new
determination of the issue . . . because of the potential adverse impact of the
determination on the public interest . . . .” Restatement (Second) of Judgments
§ 28(5)(a) (1982).
In this case, we conclude that applying the district court’s May 2004
decision—that the government was estopped from arguing that Herrera-Castanola
was an alien—in this removal action would be contrary to the intent of Congress.
Herrera-Castanola has a lengthy criminal history for which he was legally removed
from the United States in August 1999. Nevertheless, he later reentered the United
States without being admitted or paroled and, after the district court’s May 2004
decision, he was convicted and sentenced on two separate crimes. We cannot
condone Herrera-Castanola’s recent and repeated criminal conduct. In light of
these circumstances, we conclude that the government misconduct found by the
3
district court does not outweigh Congress’s mandate to remove aliens with serious
criminal histories. See, e.g., Real ID Act Pub. L. 109-13, § 106, 119 Stat. 302, 310
(2005); Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104–132, §§ 423, 440, 442, 110 Stat. 1214, 1272, 1276–80; Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104–208, § 321,
110 Stat. 3009–627; see also Pondoc Hernaez v. INS, 244 F.3d 752, 757 (9th Cir.
2001) (noting that in enacting the Illegal Immigration Reform and Responsibility
Act, “Congress was obviously concerned with speeding up the deportation of
criminal aliens”). Applying res judicata in this case would frustrate Congress’s
intent and create an “adverse impact of the determination on the public interest.”
Restatement (Second) of Judgments § 28(5)(a). Therefore, we decline to apply res
judicata to the district court’s May 2004 decision in the context of this removal
proceeding.
B. We also reject Herrera-Castanola’s res judicata claim under
Bravo-Pedroza. Bravo-Pedroza is distinguishable from this case. In that case,
DHS attempted to use convictions available to it during the initial proceedings
(which failed) to initiate new removal proceedings. 475 F.3d at 1359-60. We held
that DHS was barred by res judicata from “initiating a second deportation case on
the basis of a charge that [it] could have brought in the first case, when, due to a
4
change of law that occurred during the course of the first case, [it] lost the first
case.” Id. at 1358. Here, the government did not lose its first removal proceeding.
Nothing in Bravo-Pedroza suggests that res judicata applies to reinstatement of the
same charges following an initial (successful) removal.2 Thus, Bravo-Pedroza is
inapplicable here.
PETITION FOR REVIEW DENIED.
2
Nor does Bravo-Pedroza suggest that DHS would have been precluded
from bringing removal proceedings based on offenses committed after the initial
removal.
5