Dormescar v. U.S. Attorney Gen.

• Decision Date: 15 August 2012
• Docket Number: No. 10–15822.,10–15822.
• Citation: 690 F.3d 1258,23 Fla. L. Weekly Fed. C 1439
• Parties: Odulene DORMESCAR, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

690 F.3d 1258

23 Fla. L. Weekly Fed. C 1439

Odulene DORMESCAR, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 10–15822.

United States Court of Appeals, Eleventh Circuit.

Aug. 15, 2012.

Jeffrey A. Devore, Devore Law Group, PA, Palm Beach Gardens, FL, for Petitioner.

Daniel Eric Goldman, Lance Lomond Jolley, Mona Maria Yousif, David V. Bernal, Ada Elsie Bosque, Krystal Samuels, U.S. Dept. of Justice, OIL, Washington, DC, Alfie Owens, DHS/ICE Office of Chief Counsel—ATL, Atlanta, GA, for Respondent.

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

Before CARNES, PRYOR and RIPPLE,^* Circuit Judges.

CARNES, Circuit Judge:

This is an immigration case involving Odulene Dormescar, a native and citizen of Haiti. An immigration judge ordered him removed because he had been convicted of an aggravated felony. The Board of Immigration Appeals dismissed his appeal of that order. He has petitioned this Court for review. His petition potentially presents three issues. The first is whether this Court has subject matter jurisdiction. If we do, the second issue is whether res judicata bars the Department of Homeland Security's proceedings against Dormescar based on the aggravated felony conviction. If it does not, the third issue is whether the Department had the authority to amend the notice to appear to charge Dormescar as “admitted to the United States, but ... removable” when he was originally charged as an inadmissible “arriving alien.” The procedural history of this case is long and winding, but mapping it out in some detail is necessary to an understanding of this leg of the journey and what will probably be the final destination.

I.

Dormescar was granted lawful permanent resident status in the United States in 1998.¹ On November 29, 2006, when he was returning to the United States from Haiti, the Department of Homeland Security² served him with a notice to appear.³ The notice charged him with inadmissibility under 8 U.S.C. § 1182 as an arriving alien who had been convicted of a crime relating to a controlled substance (a 1992 Florida conviction for possession of cocaine) and crimes involving moral turpitude (1990 Florida convictions for misdemeanor battery and felony aggravated assault).

A.

Those are the events that started this case on the journey leading to this appeal. We usually would proceed step-by-step with a chronological account of what happened thereafter, but we deviate from that usual practice to take a terminology detour. The concepts of inadmissibility, deportability, and removability are crucial to the resolution of this appeal, and they can be confusing and are sometimes confused, so we will try to clarify them before we travel any farther.

Before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104–208, 110 Stat. 3009, there was a “fundamental distinction between excludable aliens and deportable aliens.” Garcia–Mir v. Smith, 766 F.2d 1478, 1483 (11th Cir.1985). Excludable aliens sought admission but had not yet achieved it. Id. at 1483–84. They were legally considered detained at the border, even if they were physically present in the United States. Id. Deportable aliens, by contrast, were those who had “succeeded in either legally or illegally entering this country.” Id.; see also Clark v. Martinez, 543 U.S. 371, 375 n. 2, 125 S.Ct. 716, 721 n. 2, 160 L.Ed.2d 734 (2005) (explaining that before the enactment of IIRIRA, “aliens ineligible to enter the country were denominated ‘excludable’ and ordered ‘deported,’ ” and “[p]ost-IIRIRA, such aliens are said to be ‘inadmissible’ and held to be ‘removable’ ”); Sicar v. Chertoff, 541 F.3d 1055, 1064 n. 3 (11th Cir.2008) (“The IIRIRA replaced the term ‘excludable’ with ‘inadmissible.’ ”). After IIRIRA was enacted, exclusion and deportation proceedings that had been separate and distinct were merged into unified “removal” proceedings, which determine whether an alien is inadmissible (not yet admitted) or deportable (admitted but removable). See8 U.S.C. § 1229a(a)(1) (“An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.”); Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 349, 125 S.Ct. 694, 704, 160 L.Ed.2d 708 (2005) (“Removal is a new procedure created in 1996 through the fusion of two previously distinct expulsion proceedings, ‘deportation’ and ‘exclusion.’ ”). A removal proceeding is generally “the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States.” 8 U.S.C. § 1229a(a)(3).

The enactment of IIRIRA broadened the scope of inadmissibility by altering the status of lawful permanent residents returning from brief trips outside of the United States. See Vartelas v. Holder, ––– U.S. ––––, 132 S.Ct. 1479, 1485, 182 L.Ed.2d 473 (2012). Before IIRIRA, “lawful permanent residents who had committed a crime of moral turpitude could ... return from brief trips abroad without applying for admission to the United States.” Id. After IIRIRA, lawful permanent residents returning from abroad became “subject to admission procedures, and, potentially, to removal from the United States on grounds of inadmissibility.” Id. A lawful permanent resident is now inadmissible if he has been convicted of a crime involving moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I). And regardless of whether an alien has lawful permanent resident status, any “alien who is convicted of an aggravated felony at any time after admission is deportable.” Id. § 1227(a)(2)(A)(iii). As the Supreme Court explained, some crimes that might make an alien inadmissible will not necessarily make him deportable:

Although IIRIRA created a uniform removal procedure for both excludable and deportable aliens, the list of criminal offenses that subject aliens to exclusion remains separate from the list of offenses that render an alien deportable. These lists are “sometimes overlapping and sometimes divergent.” Judulang v. Holder, 565 U.S. ––––, 132 S.Ct. 476, 479, 181 L.Ed.2d 449 (2011). Pertinent here, although a single crime involving moral turpitude may render an alien inadmissible, it would not render her deportable. See8 U.S.C. § 1182(a)(2) (listing excludable crimes); § 1227(a)(2) (listing deportable crimes).

Vartelas, 132 S.Ct. at 1485 n. 3.

To summarize, a conviction for a crime involving moral turpitude makes an alien inadmissible. See id.;8 U.S.C. § 1182(a)(2)(A)(i)(I). A conviction for an aggravated felony after admission makes an alien deportable, see id. § 1227(a)(2)(A)(iii), and as a result he can be classified as admitted but removable. See id. § 1229a(e)(2)(B). The term “removable” encompasses the terms inadmissible and deportable aliens, and it is defined as: “(A) in the case of an alien not admitted to the United States, that the alien is inadmissible under section 1182 of this title, or (B) in the case of an alien admitted to the United States, that the alien is deportable under section 1227 of this title.” Id. § 1229a(e)(2)(A)–(B). An alien in removal proceedings “may be charged with any applicable ground of inadmissibility under section 1182(a) of this title or any applicable ground of deportability under section 1227(a).” Id. § 1229a(a)(2).

Dormescar, as we have mentioned, was first charged with inadmissibility under 8 U.S.C. § 1182 as an arriving alien who had been convicted of a crime relating to a controlled substance and crimes involving moral turpitude. That was in November of 2006. Now we will return to what happened next.

B.

After the Department served Dormescar with the notice to appear in November 2006, the Secret Service took him into custody based on a warrant charging him with possession of counterfeited securities. About two months later, on February 5, 2007, Dormescar pleaded guilty in federal court to one count of uttering and possessing a counterfeited security in violation of 18 U.S.C. § 513(a). On April 25, 2007, the district court entered judgment on Dormescar's guilty plea, and he was convicted of the crime. The district court sentenced him to twelve months in prison.

On December 10, 2007, the Department filed in the immigration court the notice to appear that it had served on Dormescar in November of 2006 when he was returning to the United States from Haiti. Even though the notice was served on Dormescar five months before his April 2007 counterfeiting conviction, it was not filed with the immigration court until eight months after that conviction. The Department could have, but did not, amend that notice to appear to include the counterfeiting conviction. Instead, the notice charged him with inadmissibility based on a crime relating to a controlled substance (the 1992 cocaine conviction) and crimes involving moral turpitude (the 1990 misdemeanor battery and felony aggravated assault convictions).

A few months after the Department filed the notice to appear with the immigration court in December 2007, Dormescar filed a motion to terminate the proceedings, making three assertions, all of which he ultimately established: his 1990 cocaine conviction had been vacated; the 1992 misdemeanor battery conviction was not a crime involving moral turpitude; and he had not been convicted of felony aggravated assault. A hearing on the motion was scheduled for March 2008. Sometime before or during that hearing, the Department filed a copy of the record of Dormescar's 2007 counterfeiting conviction, a copy of which was given to Dormescar's counsel at the hearing.⁴ The immigration judge gave Dormescar a continuance to assess the impact of that conviction on his case.

About a week later Dormescar filed a supplement to his motion to terminate the proceedings, arguing that because the Department had not charged him with inadmissibility based on his 2007 counterfeiting conviction, the IJ could not consider it in...