United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 5, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 05-20519
Summary Calendar
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COURTNEY ANTHONY DONALDSON,
Plaintiff-Appellant,
versus
HIPOLITO M. ACOSTA, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CV-911
Before SMITH, GARZA, AND PRADO, Circuit Judges.
PER CURIAM:*
I. BACKGROUND
Petitioner-Appellant Courtney Anthony Donaldson, a thirty-five
year-old citizen of Jamaica, entered the United States as a resident
alien on September 20, 1984, at the age of fourteen. On April 20,
1989, Donaldson was indicted for possession of between five and
fifty pounds of marijuana in Chambers County, Texas. The jury
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
returned a verdict of guilty on November 13, 1990. On January 9,
1991, the court granted Appellant deferred adjudication, placing him
on probation for ten years. Donaldson was discharged from probation
on August 17, 1994.
On January 21, 1997, Appellant filed his first application for
naturalization. An immigration agent, however, determined that
Donaldson’s conviction both disqualified him from admission to
citizenship and made him subject to removal from the United States
as an alien convicted of a controlled substance offense. Appellant
received a Notice to Appear, which placed him in removal proceedings
based on his prior conviction. The Notice to Appear was later
amended to add as an additional ground for removal that his
conviction was also an aggravated felony which occurred after
November 29, 1990.
While Donaldson sought to have the removal proceedings
terminated pursuant to 8 C.F.R. § 239.2(f)1 in order to pursue his
1
Title 8 C.F.R. § 239.2(f) provided:
Termination of removal proceedings by
immigration judge. An immigration
judge may terminate removal proceedings
to permit the alien to proceed to a
final hearing on a pending application
or petition for naturalization when the
alien has established prima facie
eligibility for naturalization and the
matter involves exceptionally appealing
or humanitarian factors; in every other
case, the removal hearing shall be
completed as promptly as possible
notwithstanding the pendency of an
application for naturalization during
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request for immediate naturalization, the Immigration Naturalization
Service (“INS”) opposed the motion. The INS argued that Appellant
was unable to demonstrate prima facie eligibility for naturalization
under 8 C.F.R. § 239.2(f) because his conviction rendered him unable
to satisfy the requisite “good moral character” requirement defined
by 8 C.F.R. § 316.10(b)(1)(ii).2 In addition, the government moved
to pretermit Donaldson’s application for a waiver pursuant to former
section 212(c) of the Immigration and Nationality Act (“INA”).3
On April 24, 2002, the immigration judge (“IJ”) denied
Appellant’s motion to terminate the removal proceedings, finding
that Donaldson had failed to establish prima facie eligibility for
naturalization because of his conviction that occurred after
November 29, 1990. The IJ denied the government’s motion to
pretermit, and later granted Donaldson’s application for relief
under section 212(c) of the INA, which allowed Appellant to remain
any state of the proceedings.
8 C.F.R. § 239.2(f)(2001). Title 8 C.F.R. § 239.2(f) is now
codified without substantive change at 8 C.F.R. § 1239.2(f).
2
8 C.F.R. § 316.10(b)(1)(ii) provides that “[a]n applicant
shall be found to lack good moral character, if the applicant has
been...[c]onvicted of an aggravated felony as defined in section
101(a)(43) [codified at 8 C.F.R. § 1101(a)(43)] of the Act on or
after November 29, 1990.”
3
Before the effective dates of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) and the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), section 212(c) of the Immigration and Nationality Act
of 1952 was interpreted to give the Attorney General broad
discretion to waive deportation of resident aliens.
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in the United States as a legal resident. Although both parties
initially reserved their rights to appeal, they formally agreed that
if Donaldson withdrew his appeal of the determination that he was
convicted of a disqualifying felony, the government would not appeal
the grant of section 212(c) discretionary relief.
On November 26, 2001, Donaldson filed a second application for
naturalization. On February 8, 2003, however, the examining officer
denied Donaldson’s application for citizenship because his January
9, 1991 conviction rendered him ineligible for naturalization.
After Appellant exhausted his administrative remedies, he appealed
the denial of his application for naturalization to the district
court. Donaldson filed a motion for summary judgment on September
16, 2004. Respondent-Appellee opposed Donaldson’s motion and filed
a cross-motion for summary judgment. The magistrate judge, sitting
by agreement of the parties, granted Respondent-Appellee’s cross-
motion for summary judgment. The Court held that res judicata
barred Appellant from relitigating the IJ’s 2002 finding that
Donaldson had failed to establish prima facie eligibility for
naturalization because of his 1991 conviction. Additionally, the
court found that even if res judicata were not applicable, a de novo
review of Donaldson’s naturalization petition would lead to the same
result. Petitioner-Appellant now seeks review of the district
court’s granting of Respondent-Appellee’s Cross-Motion for Summary
Judgment.
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II. STANDARD OF REVIEW
We review a district court's grant of summary judgment de novo,
applying the same standard as the district court. Shepherd v.
Comptroller of Pub. Accounts, 168 F.3d 871, 873 (5th Cir. 1999).
Pursuant to Federal Rule of Civil Procedure 56(c), summary
judgment is proper when the “pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue of material
fact and that the moving party is entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322–23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251–52 (1986). When making its determination, the court must draw
all justifiable inferences in favor of the nonmoving party.
Anderson, 477 U.S. at 255; Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587-88 (1986); Bodenheimer v. PPG Indus.,
Inc., 5 F.3d 955, 956 (5th Cir. 1993).
To defeat a properly supported motion for summary judgment, the
non-movant must present more than a mere scintilla of evidence.
Anderson, 477 U.S. at 251. Rather, a factual dispute precludes a
grant of summary judgment if the evidence would permit a reasonable
jury to return a verdict for the nonmoving party. See Merritt-
Campbell, Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th Cir.
1999).
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III. DISCUSSION
Appellant makes three claims. First, Donaldson asserts that
res judicata does not bar his claims because the IJ lacked the
statutory authority to determine prima facie eligibility for
naturalization. Second, he contends that his conviction is not
valid due to a legal error on the part of the state judge. Lastly,
he maintains that even if his conviction is deemed valid, the date
of his conviction should be November 3, 1990. We will consider each
claim in turn.
A. Res Judicata Bars Appellant’s Claims
The district court properly determined that res judicata
precludes Appellant from relitigating the IJ’s 2002 finding that
Donaldson had failed to establish prima facie eligibility for
naturalization because of his 1991 conviction. Appellant argues,
however, that res judicata does not bar his claims because the IJ
lacked the statutory authority to determine prima facie eligibility
for naturalization. Specifically, Donaldson asserts that while the
IJ had jurisdiction over whether “exceptionally appealing or
humanitarian factors”4 were involved in the case, a finding of prima
facie eligibility for naturalization must be made by the United
States Citizenship and Immigration Services. Accordingly, Appellant
maintains that because Congress specifically mandated authority over
naturalization exclusively to the Department of Homeland Security
4
See 8 C.F.R. § 239.2(f), supra.
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(formerly the INS), the issue of prima facie eligibility for
naturalization was never properly before the IJ. See 8 U.S.C. §§
1446(b)&(d). Stated another way, Appellant argues that although the
immigration judge decided the issue, because he did not have
jurisdiction over the issue, res judicata does not bar Appellant
from litigating the issue here.
The canon of res judicata encompasses two separate, but
interrelated doctrines: 1) true res judicata or claim preclusion;
and 2) collateral estoppel or issue preclusion. Test Masters Educ.
Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005). While
claim preclusion “bars the litigation of claims that either have
been litigated or should have been raised in an earlier
suit,...[c]ollateral estoppel precludes a party from litigating an
issue already raised in an earlier action between the same parties
only if: (1) the issue at stake is identical to the one involved
in the earlier action; (2) the issue was actually litigated in the
prior action; and (3) the determination of the issue in the prior
action was a necessary part of the judgment in that action.” Id.
at 571, 572.
Here, Appellant is collaterally estopped from relitigating the
issue of whether he is prima facie eligible for naturalization.
Pursuant to 8 C.F.R. § 239.2(f), the IJ, properly found that
Appellant failed to establish prima facie eligibility for
naturalization because he failed to submit the affirmative
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communication from the INS supporting his eligibility. In fact, the
Service opposed Donaldson’s request for naturalization. The issue
presently at stake is identical to the one decided by the IJ in
2002. Moreover, the issue was properly before the IJ because it was
integral to the determination of whether the IJ could terminate
removal proceedings. Hence, the district court properly granted
Respondent-Appellee’s Cross-Motion for Summary Judgment because the
doctrine of collateral estoppel precluded Donaldson from
relitigating the IJ’s 2002 finding that Appellant had failed to
establish prima facie eligibility for naturalization because of his
1991 conviction.
B. Appellant’s Conviction Is Valid
Next, Donaldson claims that his conviction is not valid due to
a legal error on the part of the state judge. Appellant argues that
because he was convicted by a jury for possession of marijuana but
did not plead guilty to the charge, the state judge, in violation
of Texas law, offered him deferred adjudication.5
First, we do not allow the review of immigration proceedings
to be used as a forum for attacks on related convictions. See
Zinnanti v. INS, 930 F.2d 432, 434-35 (5th Cir. 1991). More
5
Section 5(a) of article 42.12 of the Texas Code of Criminal
Procedure provides that a “judge may, after receiving a plea of
guilty or plea of nolo contendere, hearing the evidence, and
finding that it substantiates the defendant's guilt, defer
further proceedings without entering an adjudication of guilt,
and place the defendant on community supervision.” TEX. CODE CRIM.
PROC. ANN. art. 42.12 §5(a)(emphasis added).
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importantly, federal law, not state law, determines whether or not
Appellant has been “convicted” for purposes of the INA. See Moosa
v. INS, 171 F.3d 994, 1006 (5th Cir. 1999); Yazdchi v. INS, 878 F.2d
166, 167 (5th Cir. 1989). Congress added a definition of
“conviction” to the INA in Section 322(a) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”).6
Section 322(a) states:
The term “conviction” means, with respect
to an alien, a formal judgment of guilt
of the alien entered by the court or, if
adjudication of guilt has been withheld,
where--
(i) a judge or jury has found the alien
guilty or the alien has entered a plea of
guilty or nolo contendere or has admitted
sufficient facts to warrant a finding of
guilt, and
(ii) the judge has ordered some form of
punishment, penalty, or restraint on the
alien's liberty to be imposed.
8 U.S.C. § 1101(a)(48).
Our case law provides that deferred adjudications in Texas are
“convictions” for immigration purposes. Moosa v. INS, 171 F.3d at
1006. Moreover, the two elements of section 322(a) have been met:
a jury found Donaldson guilty and Appellant was sentenced to a ten-
6
The definition is codified at 8 U.S.C. § 1101(a)(48). The
definition applies retroactively to deferred adjudications
entered prior to IIRIRA’s enactment. Madriz-Alvarado v.
Ashcroft, 383 F.3d 321, 334 (5th Cir. 2004).
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year term of deferred adjudication probation.7
C. Appellant was convicted on January 9, 1991
Because both of the statutory requirements were not met until
January 9, 1991, this court agrees with the district court that
Appellant was not officially convicted under the terms of section
322(a) until January 9, 1991. Consequently, this Court concludes
that Appellant’s disqualifying conviction renders him unable to
demonstrate the requisite “good moral character” necessary for
naturalization. Hence, the district court properly granted summary
judgment for the Respondent-Appellee.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
granting of Respondent-Appellee’s Cross-Motion for Summary Judgment.
AFFIRMED.
7
A fixed term of probation constitutes punishment. See
Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 640 n.11 (1988).
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