Maldonado v. U.S. Attorney General

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 10-13536 U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 22, 2011
Agency No. A090-360-593 JOHN LEY
CLERK

J. ASCENCION MALDONADO,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
________________________

(December 22, 2011)

Before HULL, MARCUS, and BLACK, Circuit Judges.

MARCUS, Circuit Judge:
 J. Ascencion1 Maldonado, a native and citizen of Mexico, petitions for

review of the decision of the Board of Immigration Appeals (“BIA”) affirming an

order that denied Maldonado’s motion to terminate removal proceedings based on

his prior convictions. In 1994, the government first charged Maldonado with

removability under the Immigration and Nationality Act (“INA”), 8 U.S.C. §

1251(a)(2)(A)(ii) and (iii) (1994), based on multiple convictions for child

molestation in 1993. An Immigration Judge (“IJ”) terminated those proceedings

after finding that Maldonado’s convictions did not fall within the INA’s definition

of “aggravated felony.” Notably, in 1996, Congress changed the law, codifying an

expanded definition of aggravated felony to include “sexual abuse of a minor.”

The government again charged Maldonado with removability based on his 1993

convictions, this time alleging under the new law that they were qualifying

aggravated felonies. The BIA determined that res judicata did not bar the new

removal proceedings, because they were based on a ground for removal that did

not exist when the prior proceedings were terminated. After thorough review and

having had the benefit of oral argument, we agree and accordingly deny

Maldonado’s petition.

1
The IJ decisions spell this name “Ascension,” as do some other documents in the record,
and the name also appears as “Ascencio.” We use “Ascencion,” as did the BIA and the parties’
briefs.

2
 I.

Maldonado, a native and citizen of Mexico, entered the United States in

1976 and became a lawful permanent resident in 1991. On August 6, 1993,

Maldonado was convicted of the felony offenses of child molestation and

aggravated child molestation, in violation of section 16-6-4 of the Official Code of

Georgia Annotated. The state court sentenced him to five years’ probation.

In June 1994, the Immigration and Naturalization Service served

Maldonado with an Order to Show Cause charging him with deportability based

on these convictions. According to the government, Maldonado was deportable

under 8 U.S.C. § 1251(a)(2)(A)(ii) (1994), because he had been “convicted of two

or more crimes involving moral turpitude, not arising out of a single scheme of

criminal misconduct.” The government later added the charge that Maldonado

was deportable pursuant to 8 U.S.C. § 1251(a)(2)(A)(iii) (1994), because he had

been convicted of an “aggravated felony,” as defined in 8 U.S.C. § 1101(a)(43)

(1994).

In an order dated July 22, 1994, the IJ terminated the deportation

proceedings against Maldonado. The order did not specify the basis for the

termination. However, a memorandum from the Immigration Judge’s law clerk

indicated that the IJ had earlier found that the 1993 convictions did not sustain the

3
deportation charge under 8 U.S.C. § 1251(a)(2)(A)(ii), and it informed the IJ that

the 1993 convictions were not “crime[s] of violence” and thus did not qualify as

aggravated felonies for 8 U.S.C. §1251(a)(2)(A)(iii) purposes.

In February 2009, the Department of Homeland Security served Maldonado

with a Notice to Appear, again charging him with removability based on his 1993

convictions.2 This time, the government charged that Maldonado was removable

under 8 U.S.C. § 1227(a)(2)(A)(iii), because the 1993 convictions were aggravated

felonies under 8 U.S.C. § 1101(a)(43)(A), which now defined an “aggravated

felony” to include the “sexual abuse of a minor.” The government also charged

that Maldonado was removable under 8 U.S.C. § 1227(a)(2)(A)(i), because he had

been “convicted of a crime involving moral turpitude committed within five years

. . . after the date of admission . . . for which a sentence of one year or longer may

be imposed.” The government noted that Maldonado had gone through removal

proceedings in 1994 based on the same convictions, but that the IJ had terminated

those proceedings after finding that “the offenses arose out of a single scheme of

criminal misconduct and the crimes of child molestation and aggravated child

molestation were not crimes of violence” sufficient to sustain an aggravated felony

2
The government alleged in the 2009 Notice to Appear that Maldonado had been convicted
of four total counts, whereas the 1994 Order to Show Cause alleged that he had been convicted of
two total counts. However, this discrepancy has no relevance to the issues raised in this appeal, and
neither party suggests that it does.

4
charge.

Maldonado moved the IJ to terminate the 2009 removal proceedings

claiming that they were barred by the doctrine of res judicata. Maldonado

observed that the government had already sought removal based on the same 1993

convictions, and that the IJ in that case terminated the proceedings after finding

that the convictions did not justify removal under either of the grounds charged.

Because the question of removability on account of his 1993 convictions had

already been fully litigated, Maldonado contended that res judicata barred the

government from again using the same convictions to seek his removal.

Not surprisingly, the government opposed Maldonado’s motion to

terminate, explaining that in 1996, Congress amended the INA to add “sexual

abuse of a minor” to the definition of “aggravated felony.”3 Because this ground

for removal did not exist in 1994 when Maldonado’s prior removal proceedings

were terminated, the government argued that res judicata would not and did not

bar the current proceedings.

In an order dated May 27, 2009, the IJ denied Maldonado’s motion. The IJ

3
The crimes involving moral turpitude ground of removability in 8 U.S.C. § 1227(a)(2)(A)(i)
was also amended. The former statute required that the alien “either [be] sentenced to confinement
or [be] confined . . . for one year or longer.” 8 U.S.C. § 1251(a)(2)(A)(i) (1994). Under the current
version, however, an alien need only commit a crime of moral turpitude “for which a sentence of one
year or longer may be imposed.” 8 U.S.C. § 1227(a)(2)(A)(i) (emphasis added).

5
found that res judicata did not bar the current removal proceedings because there

was nothing in the record to indicate that the issue of Maldonado’s removability

was adjudicated on the merits during his 1994 deportation proceedings. Citing

Singh v. U.S. Att’y Gen., 561 F.3d 1275 (11th Cir. 2009), the IJ found that res

judicata also would not apply because the latest charges -- that the 1993

convictions rendered Maldonado removable under the law as amended in 1996 --

were not in existence at the time of Maldonado’s prior proceedings.

Substantively, the IJ found that the 1993 convictions related to the sexual abuse of

a minor and were for a crime involving moral turpitude, making Maldonado

removable under both 8 U.S.C. § 1227(a)(2)(A)(iii) and § 1227(a)(2)(A)(i). The IJ

ordered Maldonado removed to Mexico.

Maldonado appealed this ruling to the BIA. On September 10, 2009, the

BIA remanded the case back to the IJ for further proceedings. The BIA concluded

that the IJ erred in overlooking evidence tending to show that the 1994

proceedings were decided on the merits. The BIA also determined that the IJ

failed to address Singh’s admonition that claims not in existence at the time of a

prior action could be raised later “unless the facts underlying the claim were

actually raised in [the prior] action.” See id. at 1280 (emphasis added) (internal

quotation mark omitted). Accordingly, the BIA remanded to the IJ to make further

6
findings of fact and reassess the applicability of res judicata.

Once again, the IJ denied Maldonado’s motion to terminate. The IJ found

that all four elements of res judicata appeared to be met, including that the 1994

proceedings were terminated on the merits and that the “current proceedings

involve the same cause of action as the first proceedings because both proceedings

involve allegations regarding the same underlying conduct.” The IJ noted,

however, that this case was unique because the government had alleged in the

prior proceedings that the 1993 convictions qualified as aggravated felonies under

8 U.S.C. § 1251(a)(2)(A)(iii) (1994) since they were crimes of violence, but now it

alleged instead that the convictions qualified as aggravated felonies under 8

U.S.C. § 1227(a)(2)(A)(iii) because they related to the sexual abuse of a minor.4

Because the present charges did not exist until the INA was amended in 1996, and

thus could not have been brought during Maldonado’s 1994 deportation

proceedings, the IJ concluded that res judicata did not bar the current removal

proceedings. As a substantive matter, the IJ again found that the 1993 convictions

related to the sexual abuse of a minor and were for a crime involving moral

4
Similarly, the IJ explained that in the prior proceedings the government alleged that
Maldonado was removable under 8 U.S.C. § 1251(a)(2)(A)(ii) (1994) because his convictions were
for two crimes of moral turpitude not arising out of a single scheme of criminal misconduct, whereas
the government now alleged that Maldonado was removable under 8 U.S.C. § 1227(a)(2)(A)(i)
because he had been convicted of a crime involving moral turpitude committed within five years
after admission for which a sentence of one year or longer may be imposed.

7
turpitude, making Maldonado removable under both 8 U.S.C. § 1227(a)(2)(A)(iii)

and § 1227(a)(2)(A)(i), and again he ordered Maldonado removed to Mexico.

Once again, Maldonado appealed to the BIA, arguing that the IJ had

misinterpreted the law by conceding that all four elements of res judicata were

met, but concluding nonetheless that res judicata did not bar the present removal

proceedings. On July 2, 2010, the BIA dismissed Maldonado’s appeal. The BIA

determined that res judicata was inapplicable because the current removal

proceedings did not involve the same cause of action as the prior proceedings.

Because the government could not have litigated the sexual abuse of a minor

charge in the 1994 proceedings, the BIA found that res judicata did not apply.

Accordingly, the BIA concluded that Maldonado was removable based on his

conviction for an aggravated felony. The BIA expressly declined to address

whether res judicata barred the government’s charge that Maldonado was

removable under 8 U.S.C. § 1227(a)(2)(A)(i) for a crime involving moral

turpitude, except to note that this charge could have been litigated in the prior

deportation proceedings.5

5
It is not altogether clear why the BIA thought that the § 1227(a)(2)(A)(i) charge could have
been litigated in the 1994 deportation proceedings, since the 1994 version of the statute required that
the alien be sentenced to or actually serve at least one year of confinement, but Maldonado was
sentenced only to probation. See supra note 2. We need not address the issue, however, because we
agree with the BIA that the new aggravated felony charge is not barred by res judicata.

8
 Maldonado timely petitioned this Court for review.

On August 2, 2010, while his petition in this Court was pending,

Maldonado moved the BIA to reconsider its July 2nd dismissal order, contending

that this order was inconsistent with its September 10, 2009, order, which

suggested that res judicata would apply if the IJ found on remand that the 1994

proceedings were terminated on the merits. The BIA denied reconsideration,

concluding that it lacked authority to grant relief because Maldonado had been

removed from the United States on July 8, 2010.

II.

At the outset, the Attorney General claims that this Court is without

jurisdiction to consider Maldonado’s claim, because of the jurisdictional limits

found in the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (codified in

scattered sections of 8 U.S.C.). Specifically, the government says that we lack

jurisdiction under 8 U.S.C. § 1252(a)(2)(C), which limits federal court jurisdiction

in cases involving certain criminal aliens. The government argues that we have

jurisdiction only to determine whether § 1252(a)(2)(C) applies -- that is, to

determine whether Maldonado is an alien who is removable based on a

disqualifying offense. Because Maldonado was found removable under §

9
1227(a)(2)(A)(iii) based on his conviction for an aggravated felony,6 the

government says that this Court lacks jurisdiction over Maldonado’s petition. We

remain unpersuaded.

We review our subject matter jurisdiction de novo. Amaya-Artunduaga v.

U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam).

Under 8 U.S.C. § 1252(a)(2)(C), this Court generally lacks jurisdiction to

review final orders of removal against aliens who have committed aggravated

felonies. Subparagraph (C) states that, “except as provided in subparagraph (D),

no court shall have jurisdiction to review any final order of removal against an

alien who is removable by reason of having committed a criminal offense covered

in [certain enumerated sections, including 8 U.S.C. § 1227(a)(2)(A)(iii)].” 8

U.S.C. § 1252(a)(2)(C).

The jurisdictional bar found in § 1252(a)(2)(C), however, is expressly

subordinate to the provision contained in subparagraph (D). See id. (noting that

subparagraph (C) applies “except as provided in subparagraph (D)” (emphasis

added)). Subparagraph (D) unambiguously says:

Nothing in subparagraph (B) or (C), or in any other provision of this
chapter . . . which limits or eliminates judicial review, shall be construed

6
Maldonado does not dispute that his 1993 convictions qualify as aggravated felonies under
the “sexual abuse of a minor” definition.

10
 as precluding review of constitutional claims or questions of law raised
upon a petition for review filed with an appropriate court of appeals in
accordance with this section.

8 U.S.C. § 1252(a)(2)(D). As the terms of both provisions make clear, §

1252(a)(2)(D) is an exception to the general rule embodied in § 1252(a)(2)(C).

Thus, although Maldonado was undisputedly found removable under §

1227(a)(2)(A)(iii), plainly we retain jurisdiction over any “constitutional claims or

questions of law” that he raises.

The sole issue Maldonado has raised is the applicability of res judicata. We

have recognized that the application of the doctrine of res judicata is a “pure

question[] of law.” Norfolk S. Corp. v. Chevron, U.S.A., Inc., 371 F.3d 1285,

1288 (11th Cir. 2004). Even though § 1252(a)(2)(C) would otherwise generally

bar jurisdiction, we may consider Maldonado’s res judicata challenge on the

merits. This conclusion is clearly dictated by § 1252(a)(2)(D).7

III.

We turn then to consider Maldonado’s petition on the merits. This

Court reviews legal determinations of the BIA de novo. Mohammed v. Ashcroft,

261 F.3d 1244, 1247 (11th Cir. 2001). “Because res judicata determinations are

7
We add that although Maldonado has now been removed to Mexico, this fact does not
render his petition moot. See Moore v. Ashcroft, 251 F.3d 919, 922 (11th Cir. 2001).

11
pure questions of law, we review them de novo.” Norfolk S. Corp., 371 F.3d at

1288.

Res judicata is a judicially crafted doctrine, created to provide finality and

conserve resources. Eastman Kodak Co. v. Atlanta Retail, Inc. (In re Atlanta

Retail, Inc.), 456 F.3d 1277, 1284 (11th Cir. 2006) (“Res judicata . . . is a

judicially made doctrine with the purpose of both giving finality to parties who

have already litigated a claim and promoting judicial economy . . . .” (citing

Parklane Hosiery Co. v Shore, 439 U.S. 322, 326 (1979))); see also Shurick v.

Boeing Co., 623 F.3d 1114, 1116 (11th Cir. 2010) (per curiam) (“The doctrine

facilitates ‘the conclusive resolution of disputes’ by reducing ‘the expense and

vexation attending multiple lawsuits, conserv[ing] judicial resources, and

foster[ing] reliance on judicial action by minimizing the possibility of inconsistent

decisions.’” (quoting Montana v. United States, 440 U.S. 147, 153-54 (1979))).

But its application is not strictly mechanical. Rather, we have recognized that our

courts have some leeway in deciding whether or not res judicata bars a subsequent

suit. See, e.g., Moch v. E. Baton Rouge Parish Sch. Bd., 548 F.2d 594, 598 (5th

Cir. 1977) (“We are unwilling to hold . . . that [the doctrine of res judicata]

constitute[s] an absolute from which we must never stray, even when a mechanical

application would result in manifest injustice. Rather, we believe that the

12
occasional adoption of an exception to the finality rule when public policy so

demands does not undermine its general effectiveness.”).8

It is by now hornbook law that the doctrine of res judicata “bars the filing of

claims which were raised or could have been raised in an earlier proceeding.”

Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999). For res

judicata to bar a subsequent case, four elements must be present: “(1) there is a

final judgment on the merits; (2) the decision was rendered by a court of

competent jurisdiction; (3) the parties, or those in privity with them, are identical

in both suits; and (4) the same cause of action is involved in both cases.” Id. It is

uncontested that the first three elements are met in this case.

As for the fourth element, two cases are generally considered to involve the

same cause of action if the latter case “arises out of the same nucleus of operative

fact, or is based upon the same factual predicate,” as the former one. Id. at 1239

(quoting Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1503 (11th Cir.

1990)); see also Singh, 561 F.3d at 1280. “Res judicata acts as a bar ‘not only to

the precise legal theory presented in the previous litigation, but to all legal theories

and claims arising out of the same operative nucleus of fact.’” Pleming v.

8
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close
of business on September 30, 1981.

13
Universal-Rundle Corp., 142 F.3d 1354, 1356 (11th Cir. 1998) (quoting Manning

v. City of Auburn, 953 F.2d 1355, 1358-59 (11th Cir. 1992)).

Thus, the issue boils down to whether Maldonado’s 1994 and 2009 removal

proceedings involve the same cause of action. We have not yet had occasion to

address whether a subsequent charge of removability based on the same prior

convictions is a different cause of action for res judicata purposes when an

intervening change in law created a new ground of removability that was not

available to the government during the prior proceedings.

Maldonado has relied heavily on our earlier decision in Singh. That case,

however, does not resolve this issue. In Singh, an alien was convicted of several

burglary and theft crimes and sentenced to 364 days’ imprisonment, two years’

community control, and three years’ probation. 561 F.3d at 1277. The

government first charged Singh with removability on the ground that his

convictions were for crimes involving moral turpitude and a firearm offense, but

the IJ terminated those proceedings. Id. at 1277-78. Singh later violated the

conditions of his community control, and he was sentenced to 6.6 years in prison.

Id. at 1278. The government then charged him with removability as an alien

convicted of an aggravated felony, defined as a theft or burglary offense for which

a sentence of at least one year was imposed. Id. This Court held that res judicata

14
did not bar the new removal proceedings, because the alien’s community control

violation and subsequent sentence gave rise to a new cause of action that was not

in existence at the time of the prior proceedings. Id. at 1280. Even though both

sets of proceedings were based on the same convictions, the aggravated felony

charge was unavailable to the government until the alien was actually sentenced to

more than a year in prison. Id.

In other words, Singh involved an intervening change in the facts -- the

alien’s violation of the terms of his community control led to a new sentence. But

in this case, there was no change in the facts underlying Maldonado’s 1993

convictions, only an intervening change in the law that affected whether those

convictions made Maldonado removable. Singh did not deal with changes in the

law.

In determining that res judicata did not apply, a panel of this Court in Singh

quoted from In re Piper Aircraft Corp., 244 F.3d 1289, 1299 (11th Cir. 2001), for

the proposition that “res judicata does not bar a claim that was not in existence at

the time of the original action unless the facts underlying the claim were actually

raised in that action.” Singh, 561 F.3d at 1280. Maldonado relies on the last

clause of this statement to argue that his current removal proceedings must be

barred by res judicata because the underlying facts -- his 1993 convictions -- were

15
actually raised in his prior proceedings. But the fact that res judicata cannot bar a

claim unless the underlying facts were raised in the prior action does not imply

that res judicata inevitably must bar any claim whose underlying facts were

previously raised.

Piper Aircraft involved a new claim whose underlying facts were not in

existence when the first action began and were not raised in that first action. 244

F.3d at 1299. Thus, Piper Aircraft stated its rule in terms of whether the

underlying facts “were actually raised” in the prior action. But the opinion’s

rationale is broader than that. The Court stated that res judicata “bars the parties

to a prior action from re-litigating a cause of action that was or could have been

raised in that action.” Id. at 1296. The Court then explained this Circuit’s oft-

repeated rule that, “for res judicata purposes, claims that ‘could have been

brought’ are claims in existence at the time the original complaint is filed or

claims actually asserted . . . in the earlier action.” Id. at 1298 (quoting Manning,

953 F.2d at 1360). Thus, the key inquiry here is whether the new claim “could

have been raised” in the prior proceeding. Id. at 1296; Ragsdale, 193 F.3d at

1238; see also Shurick, 623 F.3d at 1116 (“The doctrine of claim preclusion (or res

judicata) bars the parties to an action from relitigating matters that were or could

have been litigated in an earlier suit.”); Manning, 953 F.2d at 1358 (“Res judicata .

16
. . bars relitigation of matters that were litigated or could have been litigated in an

earlier suit.”); Richardson v. Ala. State Bd. of Educ., 935 F.2d 1240, 1244 (11th

Cir. 1991) (“The doctrine of res judicata . . . forecloses relitigation of matters

actually or potentially litigated in an earlier lawsuit.”); McKinnon v. Blue Cross &

Blue Shield of Ala., 935 F.2d 1187, 1192 (11th Cir. 1991) (“Res judicata is a

doctrine of claim preclusion which operates to prevent litigation of matters that

were raised or should have been raised in an earlier suit.”).

In short, in order to determine whether two cases involve the same cause of

action for res judicata purposes, we are obliged to look at the common nucleus of

operative fact and ask what legal theories were used or could have been employed

in the first proceeding. Ragsdale, 193 F.3d at 1238-39. A new claim is barred by

res judicata if it is based on a legal theory that was or could have been used in the

prior action. Id. at 1238. But the doctrine does not say that a new claim is barred

when it is based on a new theory not otherwise available at the time of the prior

proceeding.

It is undeniable that this case involves a new legal theory created only by

the intervening statutory change. At the time of Maldonado’s first removal

proceedings, the government could only allege that he was removable as an

aggravated felon under the “crime of violence” definition, because the definition

17
of aggravated felony at that time did not include “sexual abuse of a minor.” See 8

U.S.C. § 1101(a)(43) (1994). But the 1996 amendments to the INA expanded the

definition of aggravated felony. This statutory change created a wholly new legal

theory unavailable to the government during the 1994 proceedings. In subsequent

proceedings the government could (as it did), for the first time, allege that

Maldonado was an aggravated felon on account of his convictions for sexual

abuse of a minor.9 The new proceedings thus constitute a different cause of action

for res judicata purposes.

We add that the doctrine applies even more flexibly in the administrative

context than it does when a second court of competent jurisdiction is reviewing the

decision of a first court. Our prior case law suggests that this is true. Am.

Heritage Life Ins. Co. v. Heritage Life Ins. Co., 494 F.2d 3, 10 (5th Cir. 1974)

(“We . . . suggest . . . that the doctrines [of res judicata and collateral estoppel],

with respect to administrative proceedings, are not applied with the same rigidity

as their judicial counterparts.”). And a clear majority of our sister circuits have

agreed. See Alvear-Velez v. Mukasey, 540 F.3d 672, 677 (7th Cir. 2008) (“[W]e

have applied res judicata much more flexibly in the administrative context.”);

9
The BIA declined to address the applicability of res judicata to the crimes involving moral
turpitude charge under 8 U.S.C. § 1227(a)(2)(A)(i); we likewise discuss only the aggravated felony
charge under 8 U.S.C. § 1227(a)(2)(A)(iii).

18
Collins v. Pond Creek Mining Co., 468 F.3d 213, 229 n.3 (4th Cir. 2006) (“We

have held that ‘res judicata of administrative decisions is not encrusted with the

rigid finality that characterizes the precept in judicial proceedings.’” (alteration

omitted)); Quiñones Candelario v. Postmaster Gen., 906 F.2d 798, 801 (1st Cir.

1990) (“[I]n the context of administrative proceedings, res judicata is not

automatically and rigidly applied in the face of contrary public policy.”);

Facchiano v. U.S. Dep’t of Labor, 859 F.2d 1163, 1167 (3d Cir. 1988)

(“[A]dministrative preclusion . . . is not as rigidly enforced as preclusion in

judicial proceedings.”); Artukovic v. INS, 693 F.2d 894, 898 (9th Cir. 1982) (“[I]n

the administrative law context, . . . res judicata [is] applied flexibly.”); Parker v.

Califano, 644 F.2d 1199, 1202 (6th Cir. 1981) (“[A]dministrative res judicata . . .

is applied with less rigidity than its judicial counterpart.”); United States v. Smith,

482 F.2d 1120, 1123 (8th Cir. 1973) (same); Cartier v. Sec’y of State, 506 F.2d

191, 196 (D.C. Cir. 1974) (“[T]he doctrine of administrative res judicata . . . has

not evolved into a rigid system that is to be blindly applied in every context.”).

Still another reason counsels against the application of res judicata in this

case: it would undercut Congress’ clear intention that the expanded definition of

aggravated felony should be applied retroactively. The INA was amended

pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of

19
1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-546. In amending the

definition of aggravated felony, the IIRIRA states: “The amendments made by this

section shall apply to actions taken on or after the date of the enactment of this

Act, regardless of when the conviction occurred . . . .” IIRIRA § 321(c), 110 Stat.

at 3009-628. At the end of the new statutory definition of aggravated felony, the

IIRIRA also added the statement that “the term applies regardless of whether the

conviction was entered before, on, or after the date of enactment.” Id. § 321(b),

110 Stat. at 3009-628 (codified at 8 U.S.C. § 1101(a)(43)). As several of our sister

circuits have recognized, these two provisions read together amply establish that

Congress intended the new definition of aggravated felony to apply to prior

convictions. See Dalombo Fontes v. Gonzales, 498 F.3d 1, 3 (1st Cir. 2007)

(noting the “clear congressional intent that [the] broadened definition of

aggravated felony be applied retroactively”); Flores-Leon v. INS, 272 F.3d 433,

439 (7th Cir. 2001) (“Congress has clearly manifested an intent to apply the

amended definition of ‘aggravated felony’ retroactively.”); Aragon-Ayon v. INS,

206 F.3d 847, 851-52 (9th Cir. 2000) (explaining that “Congress has clearly

manifested an intent for the amended definition of aggravated felony to apply

retroactively,” given that the provisions of IIRIRA § 321(b) and (c) “contain a

clear and express directive from Congress that the amended definition of

20
aggravated felony should be applied to any and all criminal violations committed

by an alien after his or her entry into the United States, whether they were

committed before or after the amended definition went into effect”).

When Congress changed the definition of aggravated felony, it took the very

unusual step of explicitly making the new definition retroactive, by which it meant

to cover a large number of aliens who otherwise could not be reached. The

unambiguous intent to apply the new definition of aggravated felony retroactively

reflects “Congress’ policy decision that aliens convicted of sexual abuse of a

minor merit removal regardless of when their convictions occurred.” Alvear-

Velez, 540 F.3d at 680; see also Moch, 548 F.2d at 598; Quiñones Candelario, 906

F.2d at 801 (“[I]n the context of administrative proceedings, res judicata is not

automatically and rigidly applied in the face of contrary public policy.”); Tipler v.

E. I. duPont deNemours & Co., 443 F.2d 125, 128 (6th Cir. 1971) (noting that the

rule of res judicata “[is] qualified or rejected when [its] application would

contravene an overriding public policy”).

Finally, we observe that several of our sister circuits have reached the same

conclusion. Thus, for example, the Seventh Circuit considered a nearly identical

situation in Alvear-Velez. Based on a 1993 sexual assault conviction, the

government first charged that Alvear-Velez was deportable for having been

21
convicted of a crime involving moral turpitude under what was then 8 U.S.C. §

1251(a)(2)(A)(i). 540 F.3d at 675. The IJ terminated the proceedings because he

determined that Alvear-Velez had not been sentenced to confinement or actually

confined for one year or longer, as required under § 1251(a)(2)(A)(i). Id. In 1999,

after the IIRIRA amendments, the government then charged that Alvear-Velez was

removable under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(A), because his

1993 conviction involved the sexual abuse of a minor. Id. at 675-76.10

The Seventh Circuit, applying essentially the same res judicata test that is

used in this Circuit,11 held that the doctrine did not apply. Id. at 681. First, the

court observed that res judicata applies “much more flexibly” in the administrative

context. Id. at 677. It also noted that “although changes in case law almost never

provide a justification for instituting a new action arising from the same dispute

10
The only real factual difference between this case and Alvear-Velez is that Maldonado was
originally charged with removability for an aggravated felony, under the crime of violence definition,
while Alvear-Velez was charged only for a crime involving moral turpitude. But this difference does
not affect the analysis in this case. Both had been charged with removability based on their
convictions, successfully had those proceedings terminated, and then faced additional removal
proceedings based on the exact same underlying facts, due only to an intervening change in the law.
The precise basis for the initial charge is irrelevant, since neither alien was -- and indeed, neither
could have been -- initially charged with removability based on a conviction for sexual abuse of a
minor.
11
The Seventh Circuit test does not specifically enumerate that the prior decision must be
rendered by a court of competent jurisdiction, but this is not relevant to our concerns in this case.
The Seventh Circuit’s equivalent to our fourth element is “identity of the cause of action,” which
they explain is “determined by using the ‘operative facts’ or ‘same transaction’ test.” See Alvear-
Velez, 540 F.3d at 677. This is analogous to our “same cause of action” test.

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that already has been litigated to a final judgment, statutory changes that occur

after the previous litigation has concluded may justify a new action.” Id. at 678

(citing Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398-99 (1981)). The

Seventh Circuit also determined that “the rule against claim splitting . . . is

inapplicable when a statutory change creates a course of action unavailable in the

previous action,” and that “courts consistently have refused to apply res judicata to

preclude a second suit that is based on a claim that could not have been asserted in

the first suit.” Id. (emphasis added). The court then explained that Congress

clearly intended the amended definition of aggravated felony to apply

retroactively, and that applying res judicata to bar new removal proceedings based

on this new law would thus frustrate Congress’ policy decision. Id. at 679-80.

Thus, the two proceedings could not be considered to share an “identity of cause

of action,” even though they were based upon the same convictions. Id. at 679.12

12
The First Circuit, in dicta, has reached a similar conclusion. That case also involved a
second set of immigration proceedings based on the amended definition of aggravated felony but
relying on the same convictions as the earlier proceedings. Dalombo Fontes, 498 F.3d at 2. The BIA
declined to terminate on res judicata grounds. Id. at 2-3. The First Circuit determined that it lacked
jurisdiction to review the BIA decision. Id. at 2. But it offered that if it had jurisdiction, it would
have denied the petitioner’s res judicata claim on the merits. Id. The court explained that “the BIA
correctly refused to terminate [petitioner’s] removal proceedings in light of the clear congressional
intent that its broadened definition of aggravated felony be applied retroactively.” Id. at 3. The court
also noted that “an exception to res judicata traditionally exists ‘where between the time of the first
judgment and the second . . . there has been an intervening . . . change in the law creating an altered
situation.’” Id. (quoting State Farm Mut. Auto. Ins. Co. v. Duel, 324 U.S. 154, 162 (1945)).

The Second Circuit has also reached a similar conclusion, albeit in a different context. In a

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 In sum, under the facts and circumstances of this case, we will not apply the

doctrine of res judicata to bar new removal proceedings in this administrative

setting when an intervening change in the law has provided a wholly new legal

basis for removal that could not have been raised in the prior proceedings,

particularly when Congress clearly intended that new basis to apply retroactively.

Accordingly, we hold that res judicata does not bar the current removal

proceedings against Maldonado. Maldonado’s petition for review is therefore

DENIED.

case involving an alien’s eligibility for naturalization and a different subsection of the aggravated
felony definition, 8 U.S.C. § 1101(a)(43)(M)(i), the Second Circuit determined that res judicata did
not apply when the definition of aggravated felony was amended after the termination of the alien’s
prior deportation proceedings. Ljutica v. Holder, 588 F.3d 119, 127 (2d Cir. 2009). The court
explained that “while a previous judgment may preclude litigation of claims that arose prior to its
entry, it cannot be given the effect of extinguishing claims which did not even then exist and which
could not possibly have been sued upon in the previous case.” Id. (internal quotation marks
omitted). Thus, “[b]ecause the Government could not have argued that [the alien] was an aggravated
felon based on his 1993 conviction during his deportation proceedings, res judicata would not
preclude its taking that position here.” Id.

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