Duvall v. Atty. Gen. of U.S.

• Citation: 436 F.3d 382
• Decision Date: 07 February 2006
• Docket Number: No. 04-4412.,04-4412.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Parties: Andrea Patricia DUVALL, (Nee Andrea Patricia Phillips) Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES,<SMALL><SUP>*</SUP></SMALL> Respondent.

Page 382

436 F.3d 382

Andrea Patricia DUVALL, (Nee Andrea Patricia Phillips) Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES,^* Respondent.

No. 04-4412.

United States Court of Appeals, Third Circuit.

Argued December 7, 2005.

Filed February 7, 2006.

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Anthony A. Yang (Argued), United States Department of Justice, Appellate Section, Washington, DC, Robert M. Loeb, United States Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Respondent.

Derek W. Gray (Argued), Steel, Rudnick & Ruben, Philadelphia, PA, for Petitioner.

Before RENDELL, FISHER and GREENBERG, Circuit Judges.

FISHER, Circuit Judge.

We must decide in this case whether a litigation error by the Immigration and Naturalization Service, resulting in an adverse determination on the issue of alienage during deportation proceedings, precludes the government from thereafter seeking to remove the alien based on subsequent criminal acts. We conclude that it does not.

I.

A.

Andrea Patricia Duvall is a native and citizen of Jamaica. She entered this country on a valid tourist visa in 1987, as a "visitor for pleasure." She later married a United States citizen and applied for adjustment of status to lawful permanent resident. Her request was granted, and she became a permanent resident in 1993.

Her days in this country were not all tourism and romance, however. Between 1987 and 1993, Duvall committed a series of retail thefts and petty larcenies in New Jersey, New York, and Pennsylvania. These transgressions resulted in numerous arrests and eleven convictions by state authorities.

Soon thereafter, the INS initiated deportation proceedings against Duvall. She was charged as an alien subject to deportation based on convictions of crimes involving moral turpitude, 8 U.S.C. § 1227(a)(2)(A)(ii). A hearing was held before an immigration judge on November 16, 1993.

The sole witness called by the INS was Duvall. Counsel for the government asked her to confirm her place of birth and citizenship. She refused. She asserted a privilege against self-incrimination under the Fifth Amendment and would neither confirm nor deny any of the allegations in the order to show cause.¹

The INS was caught off guard by this maneuver. Counsel sought to introduce into evidence Duvall's application for adjustment of status, in which she admitted to being a native and citizen of Jamaica; however, the document was ruled inadmissible for noncompliance with local rules requiring submission of evidence at least ten days before the hearing. The INS had no other means by which to prove Duvall's alienage, and rested its case. Predictably, the immigration judge found that there was not "clear, unequivocal, and convincing evidence" to establish alienage. He accordingly terminated the proceedings.

The INS sought review of the decision by the Board of Immigration Appeals, but subsequently withdrew the appeal, for reasons that are not explained in the record. The decision of the immigration judge, terminating the proceedings, remains the dispositive order in the case.

B.

The brush with deportation did not deter Duvall. She continued her criminal exploits and was convicted twice, in 1995 and 2001, of felony retail theft under Pennsylvania law. While incarcerated, Duvall was interviewed by an INS official. She admitted in a sworn statement that she was a citizen of Jamaica and an alien in this country.

Within days of this admission, the INS again initiated deportation proceedings against Duvall. She was charged, based on her encounters with law enforcement in 1995 and 2001, as an alien subject to removal for convictions of an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii), and crimes involving moral turpitude, 8 U.S.C. § 1227(a)(2)(A)(ii).

Removal proceedings were terminated in June 2001. The presiding immigration judge, on motion of Duvall's counsel, held that the INS was collaterally estopped from relitigating the issue of alienage because it had enjoyed a full and fair opportunity to litigate the matter in the 1993 proceedings. The INS, the judge held, was bound by the prior determination that there was insufficient evidence to establish Duvall's alienage.

The Board of Immigration Appeals reversed. It held that collateral estoppel should be applied "more flexibly" in the immigration context and that several factors militated against imposing a bar to relitigation in these circumstances. First, the INS had been prevented in the prior proceedings — albeit as a result of its own failure to comply with local rules — from introducing evidence of alienage. Second, the burden of proof on the INS had changed between the first and second proceedings: from "clear, unequivocal and convincing" evidence to "clear and convincing" evidence.² Finally, the Board determined that application of the doctrine in this case, where the alien had committed additional deportable offenses following initial removal proceedings, would contravene congressional intent.

On remand, the immigration judge allowed the INS³ to present evidence of Duvall's alienage and found, by clear and convincing evidence, that Duvall was an alien subject to removal based on her 1995 and 2001 convictions. The order of removal was later affirmed by the Board.

C.

Duvall then filed a petition for writ of habeas corpus in the District Court for the Eastern District of Pennsylvania.⁴ She renewed her argument that, under common law principles of collateral estoppel, the INS was precluded from relitigating the issue of alienage.

The District Court agreed. It held that the government's failure to satisfy its burden of proof on alienage during the 1993 proceedings collaterally estopped it from raising the issue again. The District Court concluded that, "although ... it [is] manifestly unfair to the government to be foreclosed from proving [Duvall's] alienage, the issue of fairness is not determinative on the doc[tr]ine of collateral estoppel." A writ of habeas corpus was granted in September 2004.

This timely appeal followed.

II.

The threshold issue is the nature of our jurisdiction. When the District Court issued its decision, a challenge to an order of removal could be raised in a petition for writ of habeas corpus under 28 U.S.C. § 2241. See INS v. St. Cyr, 533 U.S. 289, 292, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). This is no longer the case. The Real ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, enacted while this appeal was pending, divests district courts of jurisdiction over these matters. Id. § 106. The sole means by which an alien may now challenge an order of removal is through a petition for review directed to the court of appeals. See Jordon v. Attorney General, 424 F.3d 320, 326-28 (3d Cir.2005).

A petition for writ of habeas corpus challenging an order of removal, pending on the date of the Act's enactment, is to be converted to a petition for review and transferred to the appropriate court of appeals. Real ID Act § 106(c). We held in Bonhometre v. Gonzales, 414 F.3d 442 (3d Cir.2005), that, despite the absence of express statutory guidance, a similar practice should govern pending appeals involving district court decisions granting habeas relief from an order of removal. Id. at 446.

We follow this approach here. The notice of appeal will be converted to a petition for review, see id., the Attorney General will be substituted as the respondent in this case, see 8 U.S.C. § 1252(b)(3)(A), and the decision of the District Court, now rendered a nullity, will be vacated, see Jordon, 424 F.3d at 326-28. We have jurisdiction to consider the decision of the Board of Immigration Appeals under 8 U.S.C. § 1252(b)(2), and exercise plenary review over questions of law, with due deference to the agency's interpretation of the Immigration and Naturalization Act (INA). Jordon, 424 F.3d at 326-28; see also Kamara v. Attorney General, 420 F.3d 202, 211 (3d Cir.2005).

III.

Turning to the merits, the sole substantive question in this appeal is whether the doctrine of collateral estoppel bars the INS from relitigating the issue of alienage against Duvall. There are two aspects to the inquiry. The first is whether the agency is required to apply the doctrine imprimis. The second is, if so, how the doctrine should be applied in this case.

A.

It is not the prerogative of the federal courts to impose upon administrative agencies procedural doctrines or rules of decision, whatever their historical pedigree. Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 108, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991); Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524-25, 542, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Congress has discretion, based on its own weighing of policy goals, to prescribe the procedures by which an agency will perform its work and render decisions. Astoria, 501 U.S. at 108, 111 S.Ct. 2166. The only constraint on this authority is the Constitution, embodied primarily in the requirement of "due process." See id.; see also Landon v. Plasencia, 459 U.S. 21, 34-35, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982).

Collateral estoppel is not constitutionally mandated, see Astoria, 501 U.S. at 108, 111 S.Ct. 2166, and, as such, the question of whether an agency must apply the doctrine is to be answered by reference to the enabling statute.⁵ Only if Congress required the agency to apply collateral estoppel may the federal courts enforce that obligation. See id.

A cursory review of the INA shows that the doctrine is not explicitly prescribed. Nowhere does the Act use the phrase "collateral estoppel," "res judicata," "issue preclusion," or "claim preclusion," and nowhere does the Act expressly bar the agency from relitigating issues previously decided.

But the absence of discussion cannot be viewed as dispositive. Congress is expected to legislate against the backdrop of well-established common law principles. Id. at 108-11, 111 S.Ct. 2166. An accepted common...