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Chavez-Mercado v. Barr

United States Court of Appeals, Fifth Circuit

January 6, 2020


          Appeal from the Board of Immigration Appeals

          Before OWEN, Chief Judge, and DENNIS and SOUTHWICK, Circuit Judges.

          JAMES L. DENNIS, Circuit Judge.

         Miguel 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.


         Chavez 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 concurrently.

         In June 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.[1] 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.

         The DHS 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 § 1101(a)(43)(G).

         The IJ 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.[2] 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 appealed.


         We 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. 1993).


         The IJ 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.[3] The BIA affirmed the IJ's decision "for the reasons articulated" by the IJ and based on our precedent.

         Res 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 ...

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