from the Board of Immigration Appeals
OWEN, Chief Judge, and DENNIS and SOUTHWICK, Circuit Judges.
L. DENNIS, Circuit Judge.
Angel Chavez-Mercado (Chavez), a native and citizen of
Mexico, seeks review of a Board of Immigration Appeals (BIA)
order dismissing an appeal from an Immigration Judge's
(IJ) denial of his motion to terminate removal proceedings
and order of removal. We DENY the petition for review in part
and DISMISS in part for lack of jurisdiction.
entered the United States illegally in 1999 and adjusted to
permanent resident status in 2005. On December 8, 2014, he
was convicted of the Texas offenses of evading arrest with a
motor vehicle under Tex. Penal Code § 38.04(b)(2)(a),
Case No. CR-14-0083, and burglary of a habitation under Tex.
Penal Code § 30.02(c)(2), Case No. CR-14-0084, Chavez
was sentenced to a four-year prison term in each case, to run
2015, while in Texas state custody, the Department of
Homeland Security (DHS) served Chavez with a Notice to Appear
(NTA) charging him with removability under 8 U.S.C. §
1227(a)(2)(A)(iii) for having been convicted of an aggravated
felony; namely, a crime of violence, as defined under 18
U.S.C. § 16(b), for which the term of imprisonment is at
least one year. See 8 U.S.C. § 1101(a)(43)(F).
The sole conviction listed in the NTA was Chavez's 2014
conviction for evading arrest with a vehicle. The IJ held
that Chavez's evading arrest conviction qualified as a
crime of violence, and thus an aggravated felony, and ordered
Chavez removed. However, the BIA terminated the proceedings
against Chavez in light of our then-existing panel opinion in
United States v. Gonzalez-Longoria, 813 F.3d 225
(5th Cir. 2016), which held that § 16(b)'s
definition of a crime of violence was unconstitutionally
vague. The BIA also noted that the DHS had not
filed any other charge of removability or otherwise filed a
brief in opposition to Chavez's appeal.
did not seek reconsideration of the BIA's decision and
instead issued a new NTA against Chavez based on his December
2014 conviction for burglary of a habitation, which it
alleged was also an aggravated felony. This time, the DHS
charged Chavez with removability under §
1227(a)(2)(A)(iii) for having been convicted of a "theft
offense . . . or burglary offense" for which the term of
imprisonment is at least one year. See §
purportedly declined to decide whether the burglary
conviction constituted a theft or burglary offense under
§ 1101(a)(43)(G), but determined that his burglary
conviction qualified as a crime of violence under §
1101(a)(43)(F) and that Chavez was therefore removable as an
aggravated felon. Chavez argued that res judicata barred the
DHS from initiating new charges against him based on an
alleged aggravated felony conviction that existed at the time
of his first removal proceedings. However, the IJ held that
res judicata did not apply and ordered Chavez removed. In his
appeal to the BIA, Chavez challenged only the IJ's
rejection of his res judicata argument. The BIA affirmed the
IJ's decision, concluding that Chavez's removability
based upon his burglary conviction had never been litigated
and res judicata therefore did not apply. Chavez timely
generally review only the decision of the BIA. Zhu v.
Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). However,
"[w]hen, as here, the BIA affirms the immigration judge
and relies on the reasons set forth in the immigration
judge's decision, this court reviews the decision of the
immigration judge as well as the decision of the BIA."
Ahmed v. Gonzales, 447 F.3d 433, 437 (5th Cir. 2006)
(internal citations omitted). "We review factual
findings of the BIA and IJ for substantial evidence, and
questions of law de novo." Zhu, 493 F.3d at 594
(internal quotation marks and citations omitted). The res
judicata effect of a prior judgment is a legal question that
we review de novo. Test Masters Educ. Servs., Inc. v.
Singh, 428 F.3d 559, 571 (5th Cir. 2005). The doctrine
of res judicata applies to administrative adjudications in
the immigration context. Andrade v. Gonzales, 459
F.3d 538, 545 (5th Cir. 2006). Under the doctrine, a valid
final judgment precludes a second suit between the same
parties on the same claim when there was an opportunity to
reach the merits in the first litigation. Id.;
see Medina v. I.N.S., 993 F.2d 499, 503 (5th Cir.
determined that the issues in both removal proceedings
against Chavez were different and, because whether
Chavez's burglary conviction rendered him removable had
not been addressed in the prior proceeding, res judicata did
not apply. The BIA affirmed the IJ's decision
"for the reasons articulated" by the IJ and based
on our precedent.
judicata applies to bar a subsequent action when four
elements are present: (1) both cases had the same parties;
(2) a court of competent jurisdiction issued a judgment in
the first case; (3) the first case was ended by way of a
final judgment on the merits; and (4) both cases dealt with
the same claim or cause of action. Test Masters, 428
F.3d at 571. Here, the parties agree that this appeal
concerns only the fourth element: whether the first removal
proceeding against Chavez involved the same claims or causes
of action as the second removal proceeding. See id.
Regarding the fourth element, the doctrine of res judicata
holds that "a final judgment on the merits of an action
precludes the parties or their privies from relitigating
issues that were or could have been raised in that
action." Rhoades v. Penfold, 694 F.2d 1043,
1048 (5th Cir. 1983) (quoting Allen v. McCurry, 449
U.S. 90 (1980)). However, res judicata has been limited in
application "to issues of fact or law necessary to the
decision in the prior ...