United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 1, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 04-30247
_______________________
ADALBERTO ANDRADE,
Petitioner-Appellant,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
JAMES W. ZIGLAR; CHRISTINE G. DAVIS; EDWARD J. MCELROY;
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT;
UNITED STATES DEPARTMENT OF JUSTICE,
Respondents-Appellees.
Appeals from the United States District Court
for the Western District of Louisiana
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit
Judges.
EDITH H. JONES, Chief Judge:
This court affirmed the district court’s denial of
Andrade’s petition for a writ of habeas corpus. Andrade v.
Gonzales, 134 Fed. Appx. 729 (2005). The Supreme Court vacated and
remanded for further consideration in light of 8 U.S.C.
§ 1252(a)(2)(D). Having received supplemental briefing from the
parties as to the effect of § 1252(a)(2)(D) upon the instant case,
we convert Andrade’s habeas petition into a petition for review of
the Board of Immigration Appeals (“BIA”), and DENY relief.
I. Background
Andrade is a citizen and national of Cape Verde. He
entered the United States as a visitor in 1988, and was accorded
lawful permanent resident status on or before June 19, 1998.
Between 1995 and 2000, Andrade was convicted of numerous offenses.
Andrade’s criminal record includes multiple convictions for assault
and battery, a conviction for unlawful possession of a firearm, and
repeated violations of domestic abuse prevention orders. As a
result of such transgressions, the former Immigration and
Naturalization Service (“INS”) issued a Notice to Appear, and on
December 3, 1999, an Immigration Judge (“IJ”) ordered Andrade
removed. While free on bond pending his appeal to the BIA, Andrade
was again convicted of assault and battery and two counts of
violating an abuse prevention order.
On May 10, 2001, the BIA remanded Andrade’s case to the
IJ to determine whether Andrade was entitled to a discretionary
adjustment of status. On August 1, 2002, after determining that
Andrade’s twenty-one convictions outweighed the mitigating
interests of his American wife and children, the IJ declined to
adjust Andrade’s status and again ordered his removal. Andrade
again appealed to the BIA, which affirmed the IJ on May 7, 2003.
Andrade’s subsequent Motion to Reconsider was denied by the BIA on
June 30, 2003, and his case became administratively final.
2
On November 7, 2002, pursuant to 28 U.S.C. § 2241,
Andrade filed a petition for a writ of habeas corpus in the Eastern
District of New York, alleging that his mandatory detention under
8 U.S.C. § 1226(c) violated his Fifth Amendment due process rights.
The district court stayed Andrade’s removal pending the resolution
of his habeas petition, and then transferred the case to the
Western District of Louisiana, which lifted the stay. In
Louisiana, Andrade amended his petition to add challenges to his
classification as an aggravated felon, as well as to the institu-
tion of removal proceedings against him based on crimes that
predate his 1998 adjustment of status.
Andrade’s petition for review of the BIA decision was
dismissed by this court on October 3, 2003; his habeas petition was
dismissed by the Louisiana district court on March 2, 2004.
Andrade appealed the denial of habeas relief. While his appeal was
pending, the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231 (2005)
became law. This court dismissed Andrade’s appeal on June 17,
2005, though it did so without addressing the effects of the REAL
ID Act upon his case. The Supreme Court granted certiorari,
vacated this court’s decision, and remanded for further
consideration in light of 8 U.S.C. § 1252(a)(2)(D).
II. Discussion
The REAL ID Act divests the district courts of
jurisdiction over the habeas petitions of aliens; instead, REAL ID
3
Act § 106 states that “a petition for review shall be the sole and
exclusive means for judicial review of an order of removal entered
or issued under any provision of [the INA].” 8 U.S.C.
§ 1252(a)(5). This court, in Rosales v. Bureau of Immigration &
Customs Enforcement, 426 F.3d 733 (5th Cir. 2005), held that
“habeas petitions on appeal as of May 11, 2005 [the effective date
of the REAL ID Act] . . . are properly converted into petitions for
review.” Id. at 736. As Andrade’s habeas appeal was pending on
May 11, 2005, this court erred in not converting his case into a
petition for review. In a petition for review, the BIA’s determi-
nations as to purely legal questions are reviewed de novo. Omagah
v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002). This court
continues to lack jurisdiction to review issues of fact pertaining
to the discretionary decisions of the BIA. See 8 U.S.C.
§§ 1252(a)(2)(B),(C).
Before passage of the REAL ID Act, the criminal alien bar
of 8 U.S.C. § 1252(a)(2)(C) prevented the courts from entertaining
petitions for review of removal orders predicated upon an
aggravated felony or a firearms offense. Under the REAL ID Act,
however, this court may now reach the merits of a criminal alien’s
petition for review if the petition raises constitutional claims or
pure questions of law. See 8 U.S.C. § 1252(a)(2)(D).
Andrade raised three issues on appeal, all of which fall
within the purview of § 1252(a)(2)(D). First, he argues that his
mandatory detention, pursuant to 8 U.S.C. § 1226(c), is
4
unconstitutional. Second, he argues that he was improperly
classified as an aggravated felon for the purposes of his
immigration proceedings. Finally, Andrade argues that the
Department of Homeland Security (“DHS”) should be estopped or
barred by res judicata from bringing removal proceedings against
him on the basis of his pre-1998 convictions, given that the INS
was aware of his criminal history and nevertheless granted
adjustment of status in 1998. All three claims are without merit,
and will be addressed in turn.
A. Detention
Andrade challenges his detention on the basis of 8 U.S.C.
§ 1226(c), a section of the INA that concerns the detention of
aliens pending a final order of removal, arguing that his extended
detention while his appeal is pending violates his Fifth Amendment
due process rights. The Government counters that such a challenge
is moot, as Andrade’s case became administratively final in 2003
and is now governed by 8 U.S.C. § 1231. In response, Andrade
argues that as a pro se litigant, his petition should be construed
liberally, and notes that he argued in his objections to the
original magistrate’s report and recommendations that if § 1231
applied, his continued detention was unconstitutional per Zadvydas
v. Davis, 533 U.S. 678, 121 S. Ct. 2491 (2001).
The Government is correct that Andrade’s detention is now
governed by § 1231. Section 1231 defines the circumstances under
5
which an alien enters the “removal period,” after which the
Government is required in most situations to remove the alien
within ninety days. Under 8 U.S.C. § 1231(a)(1)(B), the removal
period begins on the latest of the following:
(i) The date the order of removal becomes
administratively final.
(ii) If the removal order is judicially reviewed and if
a court orders a stay of the removal of the alien, the
date of the final order.
(iii) If the alien is detained or confined (except under
an immigration process), the date the alien is released
from detention or confinement.
It is clear both that Andrade’s case became administratively final
on June 30, 2003, and that 8 U.S.C. § 1231(a)(1)(B)(iii) does not
apply here, as Andrade was detained under an immigration process.
Although Andrade’s removal order is now being judicially reviewed,
8 U.S.C. § 1231(a)(1)(B)(ii) only applies to those cases in which
a court also issued a stay of removal. The district court in the
Eastern District of New York initially ordered a stay, but it
lacked the jurisdiction to do so, and the district court in the
Western District of Louisiana properly lifted the stay. This court
affirmed the lifting of the stay. See Andrade v. Ashcroft, No.
03-30899 (5th Cir. Mar. 30, 2004). Thus, the date at which
Andrade’s case became administratively final is the only one of the
three triggering events under 8 U.S.C. § 1231(a)(1)(B) that is
applicable here, and Andrade can no longer state a claim for relief
under 8 U.S.C. § 1226(c).
6
The Government errs, however, in suggesting that Andrade
raised a Zadvydas challenge for the first time on appeal. We must
construe the pleadings of pro se litigants liberally, see Perez v.
United States, 312 F.3d 191, 194-95 (5th Cir. 2002), and Andrade,
who had been detained for more than three years at the time his
habeas appeal first reached this court, plainly articulated a
constitutional challenge to the length of his detention. Moreover,
Andrade did raise Zadvydas and § 1231 in his objections to the
recommendations of the magistrate judge, so the fact that § 1226(c)
does not govern Andrade’s detention does not make his claim moot.
Nevertheless, Andrade’s ultimate constitutional claim
must fail, as his case is distinguishable from Zadvydas. Zadvydas
concerned civil confinement that was “not limited, but potentially
permanent.” Zadvydas, 533 U.S. at 691, 121 S. Ct. at 2499. There,
the Government had thrice failed to secure the transfer of an alien
subject to a final order of removal, and could offer no promise of
future success, as all the nations to which the alien had ties had
refused his admission on the ground that he was not a citizen. Id.
Zadvydas thus created a “6-month presumption” of the validity of
detention under § 1231, after which an alien could attack the
reasonableness of his continued detention. The Court’s decision
creates no specific limits on detention, however, as “an alien may
be held in confinement until it has been determined that there is
no significant likelihood of removal in the reasonably foreseeable
future.” Id. at 701, 121 S. Ct. at 2505. The alien bears the
7
initial burden of proof in showing that no such likelihood of
removal exists. Id. In the instant case, Andrade has offered
nothing beyond his conclusory statements suggesting that he will
not be immediately removed to Cape Verde following the resolution
of his appeals. His constitutional claim is meritless.
B. Aggravated Felony
8 U.S.C. § 1252(a)(2)(C) strips this court of
jurisdiction to review the final removal order of an alien
convicted of an aggravated felony. However, per the REAL ID Act
and 8 U.S.C. § 1252(a)(2)(D), this court retains jurisdiction over
pure questions of law, such as the issue whether Andrade’s assault
and battery conviction was properly construed as an aggravated
felony. Andrade was ordered removed on the basis of a firearms
offense and a Massachusetts conviction for assault and battery
under MASS. GEN. LAWS Ch. 265, § 13A. The former provides an
independent ground for removal even in the event that Andrade
prevails on his claim that the latter does not constitute an
aggravated felony. Nevertheless, because there are potential
collateral consequences to Andrade’s being removed for an
aggravated felony conviction, we shall examine the merits of his
appeal.1
1
An alien previously removed on aggravated felony grounds cannot at
any time be admitted into the United States without the consent of the Attorney
General. 8 U.S.C. § 1182 (a)(9)(A)(i).
8
An alien who is convicted of an “aggravated felony” is
deportable at any time. 8 U.S.C. § 1227(a)(2)(A)(iii). For the
purposes of the INA, an aggravated felony is, inter alia, any
“crime of violence . . . for which the term of imprisonment is at
least one year.” 8 U.S.C. § 1101(a)(43)(F); see also 18 U.S.C.
§ 16 (defining “crime of violence”). The law in question, MASS.
GEN. LAWS Ch. 265, § 13A, states in relevant part as follows:
(a) Whoever commits an assault or an assault and battery
upon another shall be punished by imprisonment for not
more than 2 1/2 years in a house of correction or by a
fine of not more than $1,000.
(b) Whoever commits an assault or an assault and
battery:
(i) upon another and by such assault and battery
causes serious bodily injury;
(ii) upon another who is pregnant at the time of
such assault and battery, knowing or having reason
to know that the person is pregnant; or
(iii)upon another who he knows has an outstanding
temporary or permanent vacate, restraining or no
contact order or judgment issued . . .in effect
against him at the time of such assault or assault
and battery; shall be punished by imprisonment in
the state prison for not more than 5 years or in
the house of correction for not more than 2 1/2
years, or by a fine of not more than $5,000, or by
both such fine and imprisonment.
Unsurprisingly, this court has not previously addressed
whether a conviction for assault in Massachusetts qualifies as an
aggravated felony under the INA. As noted by Andrade, § 13A is a
divisible statute, one which “covers two separate crimes — one
involving actual (or potential) physical harm and the other
involving a non-consensual but unharmful touching.” United States
9
v. Harris, 964 F.2d 1234, 1236 (1st Cir. 1992). Thus, a conviction
under § 13A is not an aggravated felony per se. Id.; see also
United States v. Jones, 235 F.3d 342 (7th Cir. 2000)(concluding a
§ 13A conviction was not a “crime of violence” where there was
insufficient evidence in charging instrument to prove action beyond
unwanted touching). In the instant case, however, such
distinctions are irrelevant; the 1996 conviction for which Andrade
was ordered removed also concerned a violation of a domestic abuse
protective order. Such an act clearly had as “an element the use,
attempted use, or threatened use of physical force against the
person or property of another,” making it a crime of violence under
18 U.S.C. § 16(a). Thus, the BIA did not err in characterizing
Andrade’s 1996 assault and battery conviction as an aggravated
felony.
C. Res Judicata
Finally, Andrade argues that the INS’s 1998 decision to
grant him adjustment of status bars the DHS from seeking removal
based upon pre-1998 convictions that were known to the INS at the
time his status was adjusted.2
2
To the extent Andrade also argues that the Government is estopped
from bringing removal proceedings against him, such a claim must be rejected.
It is unclear whether equitable estoppel can ever apply to the Government, but
in any event, equitable estoppel “will not lie against the Government as against
private litigants.” Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 419, 110
S. Ct. 2465, 2469 (1990). Valid assertions of estoppel are “rare indeed;” at the
very least, Andrade would have to demonstrate affirmative misconduct — the
affirmative misrepresentation or concealment of material fact — on the part of
the INS. Moosa v. INS, 171 F.3d 994, 1003 (5th Cir. 1999). As Andrade does not
allege affirmative misconduct by the Government, his claim for equitable estoppel
must fail.
10
The doctrine of res judicata can apply to adjudicatory
removal proceedings. Medina v. United States, 993 F.2d 499, 503
(5th Cir. 1993). However, the issue whether applications for
adjustment of status are to be given res judicata effect in later
deportation cases is novel in this circuit. Medina is instructive
on this issue, as the court held that res judicata barred the INS
from disputing an alien’s citizenship at deportation proceedings
when the issue had been resolved in the alien’s favor in an earlier
exclusion adjudication. Medina presented a straighforward
application of res judicata, given that a “valid and final judgment
precludes a second suit between the same parties on the same claim
or any part thereof . . . [when] in the first litigation there was
an opportunity to get to the merit.” Medina, 993 F.2d at 503.
Central to the Medina decision was the fact that the exclusionary
proceedings were “adjudicatory in nature,” and that the
administrative “agency [was] acting in a judicial capacity” when it
reached its decision. Id.
Medina is thus distinguishable from to the instant case,
as Andrade’s application for an adjustment of status cannot be
understood to be a valid and final judgment within a “judicial”
proceeding. Whereas the original proceeding in Medina was held
before an IJ, and both sides were represented by counsel and given
the opportunity to brief relevant issues, see id. at 501,
applications for adjustment of status are not normally adversarial
in nature, and do not involve an IJ. Adjustment of status is a
11
discretionary act by the executive branch, see 8 U.S.C. § 1255(a),
and is not appealable; further, the Attorney General maintains the
authority to initiate removal proceedings against any alien3 for
the reasons listed in 8 U.S.C. § 1227. We therefore conclude that
Andrade’s adjustment of status was not adjudicatory in nature, and
thus is not entitled to res judicata effect.
III. Conclusion
For the foregoing reasons, Andrade’s petition for review
is DENIED.
3
It is worth noting that the petitioner in Medina had been granted
citizenship, making the Government’s actions inapplicable under the INA.
12