Submitted March 25, 2014
Petition for Review of an Order of the Board of Immigration Appeals.
For Pablo Cabrera Cardona, Petitioner: Alexander Herman McAtee, KASABY & NICHOLLS, Omaha, NE.
For Eric H. Holder, Jr., Attorney General of the United States, Respondent: Karen Yolanda Drummond, U.S. DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration Litigation, Washington, DC; Melissa Katherine Lott, U.S. DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration Litigation, Washington, DC; Eric Warren Marsteller, Senior Litigation Counsel, U.S. DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration Litigation, Ben Franklin Station, Washington, DC; Carl H. McIntyre, U.S. DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration Litigation, Washington, DC.
Before RILEY, Chief Judge, GRUENDER and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Pablo Cabrera Cardona is a native and citizen of El Salvador. He petitions for review of a decision of the Board of Immigration Appeals, dismissing his appeal from the Immigration Judge ordering him removed. Because res judicata is inapplicable on these facts, we deny Cabrera Cardona's petition.
Cabrera Cardona was granted lawful permanent residence status in the United States in 1989. In 2002, he pled no contest to manslaughter and tampering with evidence and was found guilty in Nebraska state court. These two crimes were charged in the same charging document, and the two convictions arose from Cabrera Cardona's actions on the same day.
In 2003, the Department of Homeland Security (DHS) began removal proceedings against Cabrera Cardona based only on the manslaughter conviction, charging him as an alien convicted of an aggravated felony, specifically, a " crime of violence." 8 U.S.C. § 1101(a)(43)(F). The Immigration Judge (IJ) ordered him removed, but the Board of Immigration Appeals (BIA) terminated the removal proceedings, finding that manslaughter did not constitute a " crime of violence."
In 2011, DHS again began removal proceedings against Cabrera Cardona, this time based on the tampering with evidence conviction, charging him as an alien convicted of an aggravated felony, namely, " an offense relating to obstruction of justice." 8 U.S.C. § 1101(a)(43)(S). Cabrera Cardona admitted that the tampering with evidence conviction justified his removal. However, he argued that res judicata barred DHS from bringing the removal proceedings against him because the tampering with evidence conviction arose from the same nucleus of operative fact as the manslaughter conviction.
The IJ found res judicata inapplicable and ordered Cabrera Cardona removed. The BIA agreed, dismissing Cabrera Cardona's appeal. The BIA first noted that preclusion principles are applied more flexibly in the administrative context as compared to the judicial context. Assuming that the Eighth Circuit would apply res judicata in the administrative context of immigration proceedings in some circumstances, the BIA held it did not apply under these facts. Specifically, the BIA held that the causes of action were different since the first charge of removal " was based on a different criminal conviction, requiring different proof, than the [second] aggravated felony charge."
If there is a final order of removal against an alien due to the alien's commission of a criminal offense, we have jurisdiction to review that final order if it involves " constitutional claims or questions of law." 8 U.S.C. § 1252(a)(2)(C) & (D). We have jurisdiction to review Cabrera Cardona's res judicata argument as a question of law.
See United States v. Brekke, 97 F.3d 1043, 1046-47 (8th Cir. 1996) (noting that the application of res judicata is a question of law);
see also Dormescar v. U.S. Att'y Gen., 690 F.3d 1258, 1267-68 (11th Cir. 2012) (finding jurisdiction over alien's res judicata argument in removal proceeding based on criminal conviction);
Johnson v. Whitehead, 647 F.3d 120, 129-31 (4th Cir. 2011) (reviewing issue preclusion ruling in criminal-alien-removal action subject to § 1252(a)(2)(C) bar, though not explicitly invoking § 1252(a)(2)(D));
Ali v. Mukasey, 529 F.3d 478, 488-89 (2d Cir. 2008) (reviewing issue preclusion);
Duvall v. Att'y Gen., 436 F.3d 382, 386 (3d Cir. 2006) (reviewing issue preclusion).
Our circuit has yet to decide whether res judicata applies in immigration proceedings. We find it unnecessary to decide ...