Maldonado v. U.S. Attorney Gen.

• Decision Date: 22 December 2011
• Docket Number: No. 10–13536.,10–13536.
• Parties: J. Ascencion MALDONADO, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

23 Fla. L. Weekly Fed. C 663

664 F.3d 1369

J. Ascencion MALDONADO, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 10–13536.

United States Court of Appeals, Eleventh Circuit.

Dec. 22, 2011.

Karen Weinstock, Leslie A. Diaz, Siskind Susser, PC, Atlanta, GA, for Petitioner.

Seth A. Director, David V. Bernal, Yedidya Cohen, Thomas W. Hussey, Krystal Samuels, U.S. Dept. of Justice, OIL, Eric Holder, Jr., U.S. Atty. Gen.'s Office, Washington, DC, Alfie Owens, DHS Chief Counsel, Felecia S. Skinner, Office of Detention and Removal Operations, Atlanta, GA, for Respondent.

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

Before HULL, MARCUS and BLACK, Circuit Judges.

MARCUS, Circuit Judge:

J. Ascencion¹ Maldonado, a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) affirming an order that denied Maldonado's motion to terminate removal proceedings based on his prior convictions. In 1994, the government first charged Maldonado with removability under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1251(a)(2)(A)(ii) and (iii) (1994), based on multiple convictions for child molestation in 1993. An Immigration Judge (“IJ”) terminated those proceedings after finding that Maldonado's convictions did not fall within the INA's definition of “aggravated felony.” Notably, in 1996, Congress changed the law, codifying an expanded definition of aggravated felony to include “sexual abuse of a minor.” The government again charged Maldonado with removability based on his 1993 convictions, this time alleging under the new law that they were qualifying aggravated felonies. The BIA determined that res judicata did not bar the new removal proceedings, because they were based on a ground for removal that did not exist when the prior proceedings were terminated. After thorough review and having had the benefit of oral argument, we agree and accordingly deny Maldonado's petition.

I.

Maldonado, a native and citizen of Mexico, entered the United States in 1976 and became a lawful permanent resident in 1991. On August 6, 1993, Maldonado was convicted of the felony offenses of child molestation and aggravated child molestation, in violation of section 16–6–4 of the Official Code of Georgia Annotated. The state court sentenced him to five years' probation.

In June 1994, the Immigration and Naturalization Service served Maldonado with an Order to Show Cause charging him with deportability based on these convictions. According to the government, Maldonado was deportable under 8 U.S.C. § 1251(a)(2)(A)(ii) (1994), because he had been “convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct.” The government later added the charge that Maldonado was deportable pursuant to 8 U.S.C. § 1251(a)(2)(A)(iii) (1994), because he had been convicted of an “aggravated felony,” as defined in 8 U.S.C. § 1101(a)(43) (1994).

In an order dated July 22, 1994, the IJ terminated the deportation proceedings against Maldonado. The order did not specify the basis for the termination. However, a memorandum from the Immigration Judge's law clerk indicated that the IJ had earlier found that the 1993 convictions did not sustain the deportation charge under 8 U.S.C. § 1251(a)(2)(A)(ii), and it informed the IJ that the 1993 convictions were not “crime[s] of violence” and thus did not qualify as aggravated felonies for 8 U.S.C. § 1251(a)(2)(A)(iii) purposes.

In February 2009, the Department of Homeland Security served Maldonado with a Notice to Appear, again charging him with removability based on his 1993 convictions.² This time, the government charged that Maldonado was removable under 8 U.S.C. § 1227(a)(2)(A)(iii), because the 1993 convictions were aggravated felonies under 8 U.S.C. § 1101(a)(43)(A), which now defined an “aggravated felony” to include the “sexual abuse of a minor.” The government also charged that Maldonado was removable under 8 U.S.C. § 1227(a)(2)(A)(i), because he had been “convicted of a crime involving moral turpitude committed within five years ... after the date of admission ... for which a sentence of one year or longer may be imposed.” The government noted that Maldonado had gone through removal proceedings in 1994 based on the same convictions, but that the IJ had terminated those proceedings after finding that “the offenses arose out of a single scheme of criminal misconduct and the crimes of child molestation and aggravated child molestation were not crimes of violence” sufficient to sustain an aggravated felony charge.

Maldonado moved the IJ to terminate the 2009 removal proceedings claiming that they were barred by the doctrine of res judicata. Maldonado observed that the government had already sought removal based on the same 1993 convictions, and that the IJ in that case terminated the proceedings after finding that the convictions did not justify removal under either of the grounds charged. Because the question of removability on account of his 1993 convictions had already been fully litigated, Maldonado contended that res judicata barred the government from again using the same convictions to seek his removal.

Not surprisingly, the government opposed Maldonado's motion to terminate, explaining that in 1996, Congress amended the INA to add “sexual abuse of a minor” to the definition of “aggravated felony.”³ Because this ground for removal did not exist in 1994 when Maldonado's prior removal proceedings were terminated, the government argued that res judicata would not and did not bar the current proceedings.

In an order dated May 27, 2009, the IJ denied Maldonado's motion. The IJ found that res judicata did not bar the current removal proceedings because there was nothing in the record to indicate that the issue of Maldonado's removability was adjudicated on the merits during his 1994 deportation proceedings. Citing Singh v. U.S. Att'y Gen., 561 F.3d 1275 (11th Cir.2009), the IJ found that res judicata also would not apply because the latest charges—that the 1993 convictions rendered Maldonado removable under the law as amended in 1996—were not in existence at the time of Maldonado's prior proceedings. Substantively, the IJ found that the 1993 convictions related to the sexual abuse of a minor and were for a crime involving moral turpitude, making Maldonado removable under both 8 U.S.C. § 1227(a)(2)(A)(iii) and § 1227(a)(2)(A)(i). The IJ ordered Maldonado removed to Mexico.

Maldonado appealed this ruling to the BIA. On September 10, 2009, the BIA remanded the case back to the IJ for further proceedings. The BIA concluded that the IJ erred in overlooking evidence tending to show that the 1994 proceedings were decided on the merits. The BIA also determined that the IJ failed to address Singh's admonition that claims not in existence at the time of a prior action could be raised later “ unless the facts underlying the claim were actually raised in [the prior] action.” See id. at 1280 (emphasis added) (internal quotation mark omitted). Accordingly, the BIA remanded to the IJ to make further findings of fact and reassess the applicability of res judicata.

Once again, the IJ denied Maldonado's motion to terminate. The IJ found that all four elements of res judicata appeared to be met, including that the 1994 proceedings were terminated on the merits and that the “current proceedings involve the same cause of action as the first proceedings because both proceedings involve allegations regarding the same underlying conduct.” The IJ noted, however, that this case was unique because the government had alleged in the prior proceedings that the 1993 convictions qualified as aggravated felonies under 8 U.S.C. § 1251(a)(2)(A)(iii) (1994) since they were crimes of violence, but now it alleged instead that the convictions qualified as aggravated felonies under 8 U.S.C. § 1227(a)(2)(A)(iii) because they related to the sexual abuse of a minor.⁴ Because the present charges did not exist until the INA was amended in 1996, and thus could not have been brought during Maldonado's 1994 deportation proceedings, the IJ concluded that res judicata did not bar the current removal proceedings. As a substantive matter, the IJ again found that the 1993 convictions related to the sexual abuse of a minor and were for a crime involving moral turpitude, making Maldonado removable under both 8 U.S.C. § 1227(a)(2)(A)(iii) and § 1227(a)(2)(A)(i), and again he ordered Maldonado removed to Mexico.

Once again, Maldonado appealed to the BIA, arguing that the IJ had misinterpreted the law by conceding that all four elements of res judicata were met, but concluding nonetheless that res judicata did not bar the present removal proceedings. On July 2, 2010, the BIA dismissed Maldonado's appeal. The BIA determined that res judicata was inapplicable because the current removal proceedings did not involve the same cause of action as the prior proceedings. Because the government could not have litigated the sexual abuse of a minor charge in the 1994 proceedings, the BIA found that res judicata did not apply. Accordingly, the BIA concluded that Maldonado was removable based on his conviction for an aggravated felony. The BIA expressly declined to address whether res judicata barred the government's charge that Maldonado was removable under 8 U.S.C. § 1227(a)(2)(A)(i) for a crime involving moral turpitude, except to note that this charge could have been litigated in the prior deportation proceedings.⁵

Maldonado timely petitioned this Court for review.

On August 2, 2010, while his petition in this Court was pending, Maldonado moved the BIA to reconsider its July 2nd dismissal order, contending that this order was inconsistent with its September 10, 2009, order, which suggested that res judicata would apply if the IJ found on remand that the 1994 proceedings were terminated on the merits. The BIA denied reconsideration,...