Alvear-Velez v. Mukasey

• Decision Date: 02 September 2008
• Docket Number: No. 07-2133.,07-2133.
• Citation: 540 F.3d 672
• Parties: Gustavo Enrique ALVEAR-VELEZ, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

540 F.3d 672

Gustavo Enrique ALVEAR-VELEZ, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.

No. 07-2133.

United States Court of Appeals, Seventh Circuit.

Argued April 1, 2008.

Decided September 2, 2008.

William A. Quiceno (argued), Kempster, Keller & Lenz-Calvo, Chicago, IL, for Petitioner.

Carol Federighi (argued), Department of Justice, Washington, DC, for Respondent.

Before CUDAHY, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

Gustavo Enrique Alvear-Velez, a native and citizen of Colombia, was admitted lawfully into the United States in 1990. In 1999, the Immigration and Naturalization Service ("INS"), now the Department of Homeland Security ("DHS"), commenced removal proceedings against Mr. Alvear-Velez on the ground that he had been convicted of an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii); id. § 1101(a)(43)(A). The immigration judge ("IJ") terminated the proceedings based on Mr. Alvear-Velez's res judicata defense, but, on appeal, the Board of Immigration Appeals ("BIA" or "Board") determined that the IJ had erred in applying res judicata. The Board then remanded the case to the IJ.

On remand, Mr. Alvear-Velez applied for a waiver of deportability under former-section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c) (repealed 1996). The IJ determined that Mr. Alvear-Velez was removable based on a 1993 sexual assault conviction and also determined that he was statutorily ineligible for a section 212(c) waiver based on In re Blake, 23 I. & N. Dec. 722 (BIA 2005). Mr. Alvear-Velez appealed the IJ's decision, but the BIA dismissed the appeal. Mr. Alvear-Velez timely petitioned for review of the BIA's decision.¹

For the reasons set forth in this opinion, we deny Mr. Alvear-Velez's petition for review.

I BACKGROUND

Mr. Alvear-Velez is a native and citizen of Colombia. He entered the United States as a lawful permanent resident on October 6, 1990, at the age of 15. Mr. Alvear-Velez's entire immediate family resides in the United States. On April 30, 1993, he pleaded guilty to criminal sexual assault by a family member, in violation of Illinois law. He was sentenced to "periodic imprisonment" for twelve months and supervised probation for forty-eight months, and he served eight months of his imprisonment in a work-release program. A.R. at 247.

In 1994, the immigration authorities commenced deportation proceedings against Mr. Alvear-Velez based on his criminal sexual assault conviction, charging him with having been convicted of a crime involving moral turpitude within five years of entry, for which he was sentenced to imprisonment or actually confined for one year or more. See 8 U.S.C. § 1251(a)(2)(A)(i) (renumbered in 1996). Mr. Alvear-Velez moved to terminate the proceedings. He argued that his crime was not one of moral turpitude and that he had not been sentenced to confinement or actually confined for one year or more.

During the course of those deportation proceedings, the IJ determined that the crime was one of moral turpitude, but that Mr. Alvear-Velez had not been sentenced to imprisonment or confined for more than a year. Consequently, the IJ terminated the deportation proceedings. The INS filed an appeal, which it subsequently withdrew. Accordingly, the IJ's order of June 14, 1994, dismissing the deportation proceedings became a final administrative order. See 8 C.F.R. § 1003.39.

On June 14, 1999, Mr. Alvear-Velez reported to the police station to register as a sexual offender, as he was required to do every year. The police determined that he had missed a prior reporting date because he had moved in the interim and therefore arrested him. On June 18, 1999, the DHS served him with a notice to appear in removal proceedings to answer the charge that, under 8 U.S.C. § 1227(a)(2)(A)(iii), he was subject to removal as an alien convicted of an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(A). The predicate felony was Mr. Alvear-Velez's 1993 conviction, the same conviction that had served as the basis for his 1994 deportation proceedings.

Mr. Alvear-Velez, through counsel, contended that res judicata barred the DHS from initiating proceedings a second time using the same conviction. The IJ agreed. The DHS appealed, and the BIA sustained the appeal, vacated the IJ's decision and remanded the case for further proceedings. The Board explained that, although both immigration proceedings were based on the same 1993 conviction, "the law governing immigration consequences of criminal convictions ha[d] changed significantly" since the prior proceedings. A.R. at 248. The Board noted that the definition of aggravated felony had been expanded to include sexual abuse of a minor. "In view of this change in law," the Board continued, "we find that the doctrine of res judicata does not preclude the Service from relying on the 1993 conviction to pursue the respondent's deportation." Id.

On remand to the IJ, Mr. Alvear-Velez indicated an intention to seek waiver of his removal under INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996).² The proceedings were continued twice, and, in the interim, the BIA issued its ruling in In re Blake, 23 I. & N. Dec. 722 (BIA 2005). In that decision, the BIA held that an alien deportable because of a conviction for sexual abuse of a minor is not eligible for a section 212(c) waiver because there is no statutory counterpart of that ground of deportability in the enumerated grounds of inadmissibility in section 212(a) of the INA. When Mr. Alvear-Velez's removal proceedings recommenced, the IJ held that, based on Blake, Mr. Alvear-Velez was ineligible for a section 212(c) waiver.

Mr. Alvear-Velez timely appealed to the BIA. The BIA determined that Mr. Alvear-Velez's 1993 Illinois conviction qualifies as an aggravated felony for sexual abuse of a minor, which rendered him ineligible for a section 212(c) waiver. The Board accordingly dismissed the appeal.

Mr. Alvear-Velez timely petitioned for review of the BIA's decision.

II DISCUSSION

Mr. Alvear-Velez challenges the BIA's decision on several grounds. First, he contends that the doctrine of res judicata bars the immigration authorities from instituting removal proceedings based on the same criminal conviction that had formed the basis of their prior, unsuccessful deportation effort. Second, he submits that the removal proceedings instituted in this case violate the transitional rules governing the implementation of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, § 309, 110 Stat. 3009, 3009-625-27. Third, Mr. Alvear-Velez claims that the instant removal proceedings violate established immigration procedures because the DHS could have filed a motion to reopen his original deportation proceedings rather than commencing removal proceedings in 1999. Fourth, Mr. Alvear-Velez contends that the DHS violated his substantive due process rights by instituting these proceedings.³

A.

We first turn to Mr. Alvear-Velez's contention that the Board committed legal error in determining that the doctrine of res judicata did not prevent the DHS from charging him as being removable based on the same criminal conviction for which he previously was found not to be deportable.

The applicability of res judicata hinges on three elements: "(1) an identity of the parties or their privies; (2) identity of the cause of action; and (3) a final judgment on the merits." Prochotsky v. Baker & McKenzie, 966 F.2d 333, 334 (7th Cir.1992). The second element—identity of the cause of action—is determined by using the "operative facts" or "same transaction" test. In re Matter of Energy Coop., Inc., 814 F.2d 1226, 1230 (7th Cir. 1987). Under this formulation, a cause of action consists of "a core of operative facts which give rise to a remedy." Id. Relatedly, res judicata also prevents a party from "splitting a single cause of action [or] ... using ... several theories of recovery as the basis for separate suits." Shaver v. F.W. Woolworth Co., 840 F.2d 1361, 1365 (7th Cir.1988); see also Prochotsky, 966 F.2d at 334 (noting that this "prevents vexatious litigation"). The doctrine of res judicata minimizes "the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions." Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979).

As a general matter, res judicata applies to administrative hearings if "the administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it where the parties have had an adequate opportunity to litigate." United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); see also Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 107-08, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). Also, and more specifically, res judicata applies to the "adjudication of petitions for relief in immigration courts." Hamdan v. Gonzales, 425 F.3d 1051, 1059 (7th Cir.2005); see also Medina v. INS, 993 F.2d 499, 503-04 (5th Cir. 1993); Matter of Barragan-Garibay, 15 I. & N. Dec. 77, 78-79 (BIA 1974). Notably, however, we have applied res judicata much more flexibly in the administrative context. Int'l Harvester Co. v. OSHA, 628 F.2d 982, 986 (7th Cir.1980) ("This court does not adhere to a rigid view of the doctrine in the administrative context."); see also Collins v. Pond Creek Mining Co., 468 F.3d 213, 229 n. 3 (4th Cir.2006) ("[R]es judicata of administrative decisions is not encrusted with rigid finality that characterizes the precept in judicial proceedings."); Bravo-Pedroza v. Gonzales, 475 F.3d 1358, 1359 (9th Cir.2007); Sharp Kabushiki Kaisha v. Thinksharp, Inc., 448 F.3d 1368, 1372 (Fed.Cir.2006); Facchiano v. U.S. Dep't of Labor, 859 F.2d 1163, 1167 (3d Cir.1988).

In United...