Estrada-Rodriguez v. Lynch

• Decision Date: 06 June 2016
• Docket Number: No. 15–2223,15–2223
• Citation: 825 F.3d 397
• Parties: Jose Estrada–Rodriguez, Petitioner v. Loretta E. Lynch, Attorney General of the United States, Respondent
• Court: U.S. Court of Appeals — Eighth Circuit

825 F.3d 397

Jose Estrada–Rodriguez, Petitioner

v.Loretta E. Lynch, Attorney General of the United States, Respondent

No. 15–2223

United States Court of Appeals, Eighth Circuit.

Submitted: January 12, 2016

Filed: June 6, 2016

Counsel who presented argument on behalf of the petitioner was Edmundo G Rogers, of Lauderhill, FL.

Counsel who presented argument on behalf of the respondent was Annette Marie Wietecha, of Washington, DC.

Before MURPHY, SMITH, and BENTON, Circuit Judges.

SMITH

, Circuit Judge.

Jose Estrada–Rodriguez (“Estrada”) petitions for review of a decision of the Board of Immigration Appeals (BIA) ordering him removed from the United States because of his conviction for a crime involving moral turpitude (CIMT). See 8 U.S.C. § 1229b(b)(1)

. An Immigration Judge (IJ) initially determined that Estrada's conviction under Arkansas Code Annotated § 5–13–205, as in effect in 2004, is not a CIMT. After the BIA reopened and remanded Estrada's case to the IJ, the IJ reconsidered the status of Estrada's conviction and determined that it constitutes a CIMT. The BIA dismissed Estrada's appeal. Estrada petitions us to review the BIA's dismissal arguing that (1) the IJ was precluded from reconsidering whether his conviction is a CIMT, (2) the IJ and BIA erred in determining that his conviction under Arkansas Code Annotated § 5–13–205 is a CIMT, and (3) the IJ and BIA violated his due process rights. We deny the petition.

I. Background

In 2000, Estrada, a native and citizen of Mexico, illegally entered the United States. In 2004, he was convicted of assault in the first degree, a Class A misdemeanor, in violation of Arkansas Code Annotated § 5–13–205

.¹ A few years later, Estrada came to the attention of the Department of Homeland Security (DHS) when he was arrested in McDonald County, Missouri, for driving while intoxicated. Thereafter, DHS initiated removal proceedings against Estrada.

Before the IJ, Estrada conceded the charge of removability. Estrada, nonetheless, sought relief from removal and filed an application for cancellation of removal. Estrada asserted that his removal would cause exceptional and extremely unusual hardship to his United States citizen children. See 8 U.S.C. § 1229b(b)(1)(D)

. DHS opposed Estrada's request for relief, arguing that his Arkansas assault conviction is a CIMT and rendered him statutorily ineligible for relief.

The IJ denied Estrada's application for cancellation of removal. Initially, the IJ determined that Estrada's Arkansas assault conviction is not a CIMT; therefore, the conviction did not prevent Estrada from establishing good moral character. Specifically, the IJ concluded that because Arkansas Code Annotated § 5–13–205

did not require the actual infliction of harm or the use of a deadly weapon, there was a realistic probability that the statute would be applied to non-turpitudinous conduct. Nevertheless, the IJ held that Estrada did not meet his burden of establishing ten years of continuous physical presence. Additionally, the IJ determined that Estrada failed to demonstrate that his removal would cause exceptional and extremely unusual hardship to a qualifying relative.

Estrada appealed to the BIA, which affirmed the IJ's decision. The BIA agreed with the IJ that Estrada failed to demonstrate that his removal would cause the requisite hardship to a qualifying relative. The absence of extreme hardship made it unnecessary for the BIA to address the continuous-presence requirement. Estrada did not petition for review of the BIA's decision.

Subsequently, Estrada filed a timely motion to reopen the proceedings. Estrada alleged that new evidence enhanced the merits of his extreme-hardship contention by showing that one of his children suffered from developmental delays and autism

. The BIA granted Estrada's motion and remanded the record to the IJ “for further consideration of the hardship factors ..., and for other action as deemed appropriate.” On remand, DHS again opposed Estrada's application for cancellation of removal, renewing its argument that Estrada's Arkansas assault conviction is a CIMT, making the hardship determination immaterial. DHS noted that in In re Leal , the BIA had recently construed Arizona Revised Statutes § 13–1201(A),² reckless endangerment, and concluded that a conviction under that statute “is a categorical [CIMT] because it necessarily involves reprehensible conduct committed with a corrupt scienter.” 26 I. & N. Dec. 20, 27 (BIA 2012), aff'd sub. nom. , Leal v. Holder , 771 F.3d 1140 (9th Cir. 2014). DHS noted strong similarities between the Arizona statute and the Arkansas statute under which Estrada was convicted.

The IJ granted DHS's motion to pretermit Estrada's cancellation application, holding that Estrada's conviction for assault is a CIMT because it went “beyond simple assault” and “required a risk of imminent death or serious physical injury.” Estrada appealed to the BIA, arguing both that the IJ did not have authority to reconsider the CIMT issue and that his conviction “does not involve any moral[ly] turpitudinous conduct.” In a single-member, unpublished decision, the BIA dismissed the appeal, finding that the IJ properly reconsidered the issue and agreeing with the IJ that a conviction under Arkansas Code Annotated § 5–13–205

categorically is a CIMT.

II. Discussion

In immigration cases, we review the final agency action, which ordinarily is the BIA's decision. Etenyi v. Lynch , 799 F.3d 1003, 1006 (8th Cir. 2015)

. But where the BIA adopts the findings or reasoning of the IJ, “we also review the IJ's decision as part of the final agency action.” Id. (quotation and citation omitted). On appeal, Estrada argues that (1) the IJ was precluded from reconsidering whether his conviction is a CIMT, (2) the IJ and BIA erred in determining that his conviction under Arkansas Code Annotated § 5–13–205 is a CIMT, and (3) the IJ and BIA violated his due process rights.

A. Collateral Estoppel and Law of the Case

At the outset, Estrada argues that general principles of collateral estoppel and the “law of the case” doctrine prevented the IJ from reconsidering whether his Arkansas assault conviction is a CIMT because the IJ previously considered and decided the matter. Collateral estoppel is a question of law, which we review de novo.

B & B Hardware, Inc. v. Hargis Indus., Inc. , 569 F.3d 383, 387 (8th Cir. 2009)

. “Law of the case is a doctrine of discretion,” Little Earth of the United Tribes, Inc. v. U.S. Dep't of Hous. & Urban Dev. , 807 F.2d 1433, 1440 (8th Cir. 1986), and thus, we review for an abuse of discretion a lower tribunal's decision not to defer to previous rulings in the same case.

Collateral estoppel, also referred to as issue preclusion, prevents an issue from being relitigated in another lawsuit “when an issue of ultimate fact has been determined by a valid and final judgment.” United States v. Brekke , 97 F.3d 1043, 1049 (8th Cir. 1996)

(citations omitted). Our circuit examines five factors to determine whether collateral estoppel applies to a particular case:

(1) the party sought to be precluded in the second suit must have been a party, or in privity with a party, to the original lawsuit;

(2) the issue sought to be precluded must be the same as the issue involved in the prior action;

(3) the issue sought to be precluded must have been actually litigated in the prior action;

(4) the issue sought to be precluded must have been determined by a valid and final judgment; and

(5) the determination in the prior action must have been essential to the prior judgment.

Anderson v. Genuine Parts Co. , 128 F.3d 1267, 1273 (8th Cir. 1997)

(quotation and citation omitted).

After considering these factors, we hold that the IJ was not collaterally estopped from reconsidering the CIMT issue. Collateral estoppel does not apply here because the CIMT issue was not previously determined by a valid and final judgment in a prior action between Estrada and DHS. Instead, the CIMT issue was determined at an earlier stage of the same action and was reconsidered pursuant to the reopening of the action. See Arizona v. California , 460 U.S. 605, 619, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)

(finding it “clear that res judicata and collateral estoppel do not apply if a party moves the rendering court in the same proceeding to correct or modify its judgment” (citation omitted)).

Whereas collateral estoppel is a question of power, law of the case is a question of discretion. See S. Ry. Co. v. Clift , 260 U.S. 316, 319, 43 S.Ct. 126, 67 L.Ed. 283 (1922)

; see also

Arizona , 460 U.S. at 618, 103 S.Ct. 1382 (“Law of the case directs a court's discretion, it does not limit the tribunal's power.” (citations omitted)). Law of the case is one of the many doctrines our legal system has inherited from the common law. At common law, courts were directed “to follow decisions made in an earlier proceeding.” Bethea v. Levi Strauss & Co. , 916 F.2d 453, 457 (8th Cir. 1990) (citations omitted). The Supreme Court has similarly understood the doctrine. See

Arizona , 460 U.S. at 618, 103 S.Ct. 1382 (“[W]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” (footnote and citation omitted)).³

On remand from the BIA, the IJ reconsidered and reversed its prior decision that Estrada's Arkansas assault conviction is not a CIMT. As the BIA noted, nothing in its order reopening and remanding the action precluded the IJ from reconsidering the CIMT issue on remand. See In re Patel , 16 I. & N. Dec. 600, 601 (BIA 1978)

(holding that a remand, unless qualified or limited for a specific purpose, is effective for the stated purpose and for consideration of any and all matters that the IJ deems appropriate). The BIA remanded the action to the IJ “for further consideration of the hardship factors ..., and for other action as deemed appropriate.” On remand, the IJ became aware of factually similar cases that called into question the...