Alvear-Velez, Gustav v. Mukasey, Michael B.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2133

G USTAVO E NRIQUE A LVEAR-V ELEZ,

Petitioner,

v.

M ICHAEL B. M UKASEY, Attorney

General of the United States,

Respondent.

____________

Petition for Review of an

Order of the Board of Immigration Appeals.

No. A42-281-319

____________

A RGUED A PRIL 1, 2008—D ECIDED S EPTEMBER 2, 2008

____________

Before C UDAHY, R IPPLE and R OVNER, Circuit Judges.

R IPPLE, Circuit Judge. Gustavo Enrique Alvear-Velez, a

native and citizen of Colombia, was admitted lawfully

into the United States in 1990. In 1999, the Immigration

and Naturalization Service (“INS”), now the Department

of Homeland Security (“DHS”), commenced removal

proceedings against Mr. Alvear-Velez on the ground that

he had been convicted of an aggravated felony. See 8 U.S.C.

2 No. 07-2133

§ 1227(a)(2)(A)(iii); id. § 1101(a)(43)(A). The immigration

judge (“IJ”) terminated the proceedings based on Mr.

Alvear-Velez’s res judicata defense, but, on appeal, the

Board of Immigration Appeals (“BIA” or “Board”) deter-

mined that the IJ had erred in applying res judicata. The

Board then remanded the case to the IJ.

On remand, Mr. Alvear-Velez applied for a waiver

of deportability under former-section 212(c) of the Immi-

gration and Nationality Act (“INA”), 8 U.S.C. § 1182(c)

(repealed 1996). The IJ determined that Mr. Alvear-Velez

was removable based on a 1993 sexual assault conviction

and also determined that he was statutorily ineligible

for a section 212(c) waiver based on In re Blake, 23 I. & N.

Dec. 722 (BIA 2005). Mr. Alvear-Velez appealed the IJ’s

decision, but the BIA dismissed the appeal. Mr. Alvear-

Velez timely petitioned for review of the BIA’s decision.1

1

Under 8 U.S.C. § 1252(a)(1), we have jurisdiction to review

final orders of removal issued by the Board. In cases where an

alien has been found removable on the ground that he com-

mitted an aggravated felony offense, as is the case here, our

jurisdiction is limited to reviewing “constitutional claims” and

“questions of law.” See 8 U.S.C. §§ 1252(a)(2)(C), (D). All of Mr.

Alvear-Velez’s arguments satisfy this requirement. The ap-

plication of res judicata is a question of law, and therefore

we have jurisdiction to review Mr. Alvear-Velez’s challenge

on that ground. See Hamdan v. Gonzales, 425 F.3d 1051, 1056-57

(7th Cir. 2005); see also Channer v. Dep’t of Homeland Sec., 527 F.3d

275, 279 (2d Cir. 2008) (“As several of our sister Circuits have

held, the application of res judicata is an issue of law that we

have jurisdiction to review.”).

No. 07-2133 3

For the reasons set forth in this opinion, we deny Mr.

Alvear-Velez’s petition for review.

I

BACKGROUND

Mr. Alvear-Velez is a native and citizen of Colombia. He

entered the United States as a lawful permanent resident

on October 6, 1990, at the age of 15. Mr. Alvear-Velez’s

entire immediate family resides in the United States. On

April 30, 1993, he pleaded guilty to criminal sexual assault

by a family member, in violation of Illinois law. He

was sentenced to “periodic imprisonment” for twelve

months and supervised probation for forty-eight months,

and he served eight months of his imprisonment in a work-

release program. A.R. at 247.

In 1994, the immigration authorities commenced deporta-

tion proceedings against Mr. Alvear-Velez based on his

criminal sexual assault conviction, charging him with

having been convicted of a crime involving moral turpi-

tude within five years of entry, for which he was sen-

tenced to imprisonment or actually confined for one year

or more. See 8 U.S.C. § 1251(a)(2)(A)(i) (renumbered in

1996). Mr. Alvear-Velez moved to terminate the proceed-

ings. He argued that his crime was not one of moral

turpitude and that he had not been sentenced to con-

finement or actually confined for one year or more.

During the course of those deportation proceedings, the

IJ determined that the crime was one of moral turpitude,

but that Mr. Alvear-Velez had not been sentenced to

4 No. 07-2133

imprisonment or confined for more than a year. Conse-

quently, the IJ terminated the deportation proceedings. The

INS filed an appeal, which it subsequently withdrew.

Accordingly, the IJ’s order of June 14, 1994, dismissing

the deportation proceedings became a final administra-

tive order. See 8 C.F.R. § 1003.39.

On June 14, 1999, Mr. Alvear-Velez reported to the

police station to register as a sexual offender, as he was

required to do every year. The police determined that he

had missed a prior reporting date because he had moved

in the interim and therefore arrested him. On June 18, 1999,

the DHS served him with a notice to appear in removal

proceedings to answer the charge that, under 8 U.S.C.

§ 1227(a)(2)(A)(iii), he was subject to removal as an alien

convicted of an aggravated felony as defined by 8 U.S.C.

§ 1101(a)(43)(A). The predicate felony was Mr. Alvear-

Velez’s 1993 conviction, the same conviction that had

served as the basis for his 1994 deportation proceedings.

Mr. Alvear-Velez, through counsel, contended that res

judicata barred the DHS from initiating proceedings a

second time using the same conviction. The IJ agreed. The

DHS appealed, and the BIA sustained the appeal, vacated

the IJ’s decision and remanded the case for further pro-

ceedings. The Board explained that, although both immi-

gration proceedings were based on the same 1993 convic-

tion, “the law governing immigration consequences of

criminal convictions ha[d] changed significantly” since

the prior proceedings. A.R. at 248. The Board noted that

the definition of aggravated felony had been expanded

to include sexual abuse of a minor. “In view of this change

No. 07-2133 5

in law,” the Board continued, “we find that the doctrine

of res judicata does not preclude the Service from relying

on the 1993 conviction to pursue the respondent’s deporta-

tion.” Id.

On remand to the IJ, Mr. Alvear-Velez indicated an

intention to seek waiver of his removal under INA § 212(c),

8 U.S.C. § 1182(c) (repealed 1996).2 The proceedings were

continued twice, and, in the interim, the BIA issued its

ruling in In re Blake, 23 I. & N. Dec. 722 (BIA 2005). In that

decision, the BIA held that an alien deportable because

of a conviction for sexual abuse of a minor is not eligible

for a section 212(c) waiver because there is no statu-

tory counterpart of that ground of deportability in the

enumerated grounds of inadmissibility in section 212(a)

of the INA. When Mr. Alvear-Velez’s removal pro-

ceedings recommenced, the IJ held that, based on Blake,

Mr. Alvear-Velez was ineligible for a section 212(c) waiver.

Mr. Alvear-Velez timely appealed to the BIA. The BIA

determined that Mr. Alvear-Velez’s 1993 Illinois conviction

qualifies as an aggravated felony for sexual abuse of a

minor, which rendered him ineligible for a section 212(c)

waiver. The Board accordingly dismissed the appeal.

2

See also INS v. St. Cyr, 533 U.S. 289, 295-96 (2001) (holding that

section 212(c) waivers remain available to aliens who

pleaded guilty to an aggravated felony prior to the effective

date of the repeal and who would have been eligible for relief

under the law then in effect). See generally Valere v. Gonzales, 473

F.3d 757, 759-60 (7th Cir. 2007) (discussing section 212(c)

waivers).

6 No. 07-2133

Mr. Alvear-Velez timely petitioned for review of the

BIA’s decision.

II

DISCUSSION

Mr. Alvear-Velez challenges the BIA’s decision on

several grounds. First, he contends that the doctrine of res

judicata bars the immigration authorities from instituting

removal proceedings based on the same criminal convic-

tion that had formed the basis of their prior, unsuccessful

deportation effort. Second, he submits that the removal

proceedings instituted in this case violate the transi-

tional rules governing the implementation of the Illegal

Immigration Reform and Immigrant Responsibility Act

of 1996 (“IIRIRA”), Pub. L. No. 104-208, § 309, 110 Stat.

3009, 3009-625-27. Third, Mr. Alvear-Velez claims that

the instant removal proceedings violate established im-

migration procedures because the DHS could have filed a

motion to reopen his original deportation proceedings

rather than commencing removal proceedings in 1999.

Fourth, Mr. Alvear-Velez contends that the DHS violated

his substantive due process rights by instituting these

proceedings.3

3

In his main brief, Mr. Alvear-Velez also challenged the Board’s

determination that, under In re Blake, 23 I. & N. Dec. 722 (BIA

2005), his 1993 conviction for criminal sexual assault cannot be

waived under section 212(c) of the INA. At oral argument,

(continued...)

No. 07-2133 7

A.

We first turn to Mr. Alvear-Velez’s contention that the

Board committed legal error in determining that the

doctrine of res judicata did not prevent the DHS from

charging him as being removable based on the same

criminal conviction for which he previously was found

not to be deportable.

The applicability of res judicata hinges on three ele-

ments: “(1) an identity of the parties or their privies; (2)

identity of the cause of action; and (3) a final judgment on

the merits.” Prochotsky v. Baker & McKenzie, 966 F.2d 333,

334 (7th Cir. 1992). The second element—identity of the

cause of action—is determined by using the “operative

facts” or “same transaction” test. In re Matter of Energy Co-

op., Inc., 814 F.2d 1226, 1230 (7th Cir. 1987). Under this

formulation, a cause of action consists of “a core of opera-

tive facts which give rise to a remedy.” Id. Relatedly, res

judicata also prevents a party from “splitting a single

cause of action [or] . . . using . . . several theories of re-

covery as the basis for separate suits.” Shaver v. F.W.

Woolworth Co., 840 F.2d 1361, 1365 (7th Cir. 1988); see also

Prochotsky, 966 F.2d at 334 (noting that this “prevents

vexatious litigation”). The doctrine of res judicata mini-

mizes “the expense and vexation attending multiple

3

(...continued)

however, Mr. Alvear-Velez conceded that this argument was

foreclosed by our decisions in Valere v. Gonzales, 473 F.3d 757

(7th Cir. 2007), and Zamora-Mallari v. Mukasey, 514 F.3d 679 (7th

Cir. 2008). Accordingly, we shall not discuss these arguments.

8 No. 07-2133

lawsuits, conserves judicial resources, and fosters reli-

ance on judicial action by minimizing the possibility of

inconsistent decisions.” Montana v. United States, 440 U.S.

153, 153-54 (1979).

As a general matter, res judicata applies to administra-

tive hearings if “the administrative agency is acting in a

judicial capacity and resolves disputed issues of fact

properly before it where the parties have had an adequate

opportunity to litigate.” United States v. Utah Constr. &

Mining Co., 384 U.S. 394, 422 (1966); see also Astoria Fed. Sav.

& Loan Ass’n v. Solimino, 501 U.S. 104, 107-08 (1991). Also,

and more specifically, res judicata applies to the “adjudi-

cation of petitions for relief in immigration courts.”

Hamdan v. Gonzales, 425 F.3d 1051, 1059 (7th Cir. 2005); see

also Medina v. INS, 993 F.2d 499, 503-04 (5th Cir. 1993);

Matter of Barragan-Garibay, 15 I. & N. Dec. 77, 78-79 (BIA

1974). Notably, however, we have applied res judicata

much more flexibly in the administrative context. Int’l

Harvester Co. v. OSHA, 628 F.2d 982, 986 (7th Cir. 1980)

(“This court does not adhere to a rigid view of the doctrine

in the administrative context.”); see also Collins v. Pond Creek

Mining Co., 468 F.3d 213, 229 n.3 (4th Cir. 2006) (“[R]es

judicata of administrative decisions is not encrusted with

rigid finality that characterizes the precept in judicial

proceedings.”); Bravo-Pedroza v. Gonzales, 475 F.3d 1358,

1359 (9th Cir. 2007); Sharp Kabushiki Kaisha v. Thinksharp,

Inc., 448 F.3d 1368, 1372 (Fed. Cir. 2006); Facchiano v.

U.S. Dep’t of Labor, 859 F.2d 1163, 1167 (3d Cir. 1988).

In United States v. Fisher, 864 F.2d 434 (7th Cir. 1988), for

example, the Environmental Protection Agency (“EPA”)

No. 07-2133 9

had entered into a consent decree with respect to a

large tract of land in northern Indiana used for the recla-

mation of solvents. Several years later, and after Congress

had amended the relevant environmental statute to

create new avenues of action, the EPA brought a new

suit rather than seeking to modify the consent decree.

We explained that, under res judicata, consent decrees

normally prevent a new “lawsuit arising from the same

dispute that underlay the litigation in which the decree

was entered.” Id. at 439. Under the circumstances of the

case, however, and given the statutory change in the

interim, we held that the EPA was justified in com-

mencing a new action:

The Superfund amendments under which the present

suit was filed were enacted four years after the con-

sent decree was signed. The amendments direct the

EPA in no uncertain terms to take peremptory steps

to protect the public health. The EPA has no authority

to refuse to enforce the statute just because its

staff made commitments before Congress spoke.

Id.

As Fisher suggests, in determining whether the doc-

trine of res judicata should be applied with less rigidity

than usual, courts have placed great weight on the

identity of the institution of government responsible for

the change in law. Notably, although changes in case

law almost never provide a justification for instituting a

new action arising from the same dispute that already

has been litigated to a final judgment, statutory

changes that occur after the previous litigation has con-

10 No. 07-2133

cluded may justify a new action. Federated Dep’t Stores, Inc.

v. Moitie, 452 U.S. 394, 398-99 (1981); Fisher, 864 F.2d at

439; 18 James Wm. Moore et al., Moore’s Federal Practice,

¶ 131.22[3] (3d ed. 1999) (noting that “[p]assage of a new

statute will not per se create grounds for a new claim,” but,

“when a new statute provides an independent basis

for relief which did not exist at the time of the prior

action, a second action based on the new statute may be

justified.”). Compare Moitie, 452 U.S. at 398-99 (holding

that considerations of fairness and equity do not vitiate

the res judicata effect of a previous, unappealed judg-

ment, even if that judgment “rest[s] on a legal principle

subsequently overruled in another case”), with Astoria

Fed. Sav. & Loan Ass’n, 501 U.S. at 107-08 (noting that

Congress may abrogate res judicata implicitly in the

administrative context if the doctrine’s application

would contravene a statutory purpose).

Additionally, the rule against claim splitting, which is

one component of res judicata, is inapplicable when a

statutory change creates a course of action unavailable

in the previous action. Cf. Car Carriers, Inc. v. Ford Motor

Co., 789 F.2d 589, 593-94 (7th Cir. 1986) (“[P]rior litiga-

tion acts as a bar not only to those issues which were

raised and decided in the earlier litigation but also to

those issues which could have been raised in that litiga-

tion.” (emphasis in original)); see also Wedow v. City of

Kansas City, Mo., 442 F.3d 661, 669 (8th Cir. 2006) (noting

that the rule against claim splitting “does not apply to

claims that did not exist when the first suit was filed”).

Indeed, courts consistently have refused to apply res

judicata to preclude a second suit that is based on a claim

No. 07-2133 11

that could not have been asserted in the first suit. See

Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 142

F.3d 26, 38 (1st Cir. 1998) (“Of course, res judicata will

not attach if the claim asserted in the second suit could

not have been asserted in the first.”).4

4

See also Computer Assoc. Int’l, Inc. v. Altai, Inc., 126 F.3d 365, 370

(2d Cir. 1997) (“Even where a second action arises from some

of the same factual circumstances that gave rise to a prior action,

res judicata is inapplicable if formal jurisdictional or statutory

barriers precluded the plaintiff from asserting its claims in the

first action.”); Clark v. Bear Stearns & Co., 966 F.2d 1318, 1321 (9th

Cir. 1992) (“If a claim could not have been asserted in prior

litigation, no interests are served by precluding that claim in

later litigation.”); Kale v. Combined Ins. Co., 924 F.2d 1161, 1167

(1st Cir. 1991) (“In general, the rule requiring all claims arising

from a single cause of action to be asserted in a single law-

suit will not apply if the plaintiff was unable to assert a particu-

lar claim or theory in the original case ‘because of the limitations

on the subject matter jurisdiction of the courts.’ ” (quoting

Restatement (Second) of Judgments § 26(1)(c) (1982))); Browning

v. Navarro, 887 F.2d 553, 558 (5th Cir. 1989) (“It is black-letter

law that a claim is not barred by res judicata if it could not have

been brought. If the court rendering judgment lacked sub-

ject-matter jurisdiction over a claim or if the procedural rules

of the court made it impossible to raise a claim, then it is not

precluded.”); 18 Wright, Miller & Cooper, Federal Practice

and Procedure § 4412, at 276 (2d ed. 2002) (“Limitations on

the jurisdiction or the nature of the proceedings brought in a

first court may justify relaxation of the general requirement

that all parts of a single claim or cause of action be advanced.”).

It is worth noting, however, that the “argument that it was not

possible to bring all related theories of recovery or demands

(continued...)

12 No. 07-2133

In the present case, when the immigration authorities

first sought to deport Mr. Alvear-Velez based on his 1993

Illinois conviction for sexual assault, they had to rely

on the ground that he had been convicted of a crime

involving moral turpitude within five years of entry, A.R.

at 247 (noting that Mr. Alvear-Velez was charged as

deportable under 8 U.S.C. § 1251(a)(2)(A)(i)); at the time

that this earlier deportation proceeding was instituted,

Mr. Alvear-Velez’s conviction for sexual assault did not

qualify as an aggravated felony, see 8 U.S.C. § 1101(a)(43)

(1995). In 1996, however, Congress amended the statutory

definition of aggravated felony, another ground for

removal, to include sexual abuse of a minor, and it specifi-

cally applied that new definition retroactively “regardless”

of how long ago the “conviction was entered.” IIRIRA,

§§ 321(a)(1) & (b), 110 Stat. at 3009-628 (codified at 8

U.S.C. § 1101(a)(43)(A)); Flores-Leon v. INS, 272 F.3d 433,

439 (7th Cir. 2001) (holding that “Congress has clearly

manifested an intent to apply the amended definition

of ‘aggravated felony’ retroactively”). After the passage

of IIRIRA, therefore, Mr. Alvear-Velez’s 1993 Illinois

conviction for sexual assault did qualify as an aggravated

felony. Consequently, Congress provided the immigra-

4

(...continued)

for relief in a first action may not overcome a claim-preclusion

defense if the plaintiff could have made it possible.” 18 Wright,

Miller & Cooper, supra, § 4409, at 246 (emphasis added); see also

Supporters to Oppose Pollution, Inc. v. Heritage Group, 973 F.2d

1320, 1326-27 (7th Cir. 1992) (noting that the exception to this

rule does not extend to situations where the “claim-splitting

flows from the plaintiff’s choice”).

No. 07-2133 13

tion authorities with a new ground upon which to

institute removal proceedings—a ground that had not

been available when the immigration authorities had

first sought to deport Mr. Alvear-Velez.

Under these circumstances, the two immigration pro-

ceedings cannot be said to share an “identity of the cause

of action,” a required element of res judicata. See

Prochotsky, 966 F.2d at 334. We have defined “identity of

the cause of action” as “a core of operative facts which give

rise to a remedy.” In re Matter of Energy Co-op., Inc., 814

F.2d at 1230. Although the immigration proceeding at

issue here is based upon Mr. Alvear-Velez’s 1993 con-

viction, the same conviction on which his 1994 deporta-

tion proceeding was based, the ground that the immigra-

tion authorities now invoke was unavailable to them in

the first proceeding and therefore could not have been

asserted. See Ripplin Shoals Land Co., LLC v. U.S. Army Corps

of Eng’rs, 440 F.3d 1038, 1042 (8th Cir. 2006) (“[R]es judicata

does not apply to claims that did not exist when the first

suit was filed.” (citing Lundquist v. Rice Mem’l Hosp., 238

F.3d 975, 977 (8th Cir. 2001))); see also Comm’r v. Sunnen, 333

U.S. 591, 597-98 (1948) (“But where the second action

between the same parties is upon a different cause or

demand, the principle of res judicata is applied much

more narrowly.”). As we have noted, courts consistently

have refused to apply res judicata to preclude a second

suit that is based on a claim that could not have been

asserted in the first suit. See cases cited supra note 4 and

accompanying text.

Moreover, two circumstances require a less rigid ap-

plication of res judicata in this case. The relevant change

14 No. 07-2133

in the law here is statutory in nature, as opposed to a

change in case law, and that change is being applied in

the administrative context. See Fisher, 864 F.2d at 439;

18 Moore, supra, ¶ 131.22[3] (acknowledging that a new

statute may justify institution of a subsequent action); see

also Collins, 468 F.3d at 229 n.3 (“[R]es judicata of adminis-

trative decisions is not encrusted with rigid finality that

characterizes the precept in judicial proceedings.”);

Int’l Harvester, 628 F.2d at 986 (“This court does not adhere

to a rigid view of the doctrine in the administrative con-

text.”).

Finally, we note that the application of res judicata

under these circumstances would be inconsistent with

IIRIRA’s statutory scheme and therefore would frustrate

Congress’ policy decision that aliens convicted of sexual

abuse of a minor merit removal regardless of when their

convictions occurred. See 8 U.S.C. § 1101(a)(43). Several of

our sister circuits have suggested a similar approach. In

Tran v. Gonzales, the Sixth Circuit concluded that the

immigration authorities could institute new removal

proceedings based on “convictions that were previously

the subject of closed deportation proceedings.” 447 F.3d

937, 939 (6th Cir. 2006). Under IIRIRA’s amended defini-

tion of aggravated felony, the alien became “subject to

removal proceedings on an entirely different charge,” and

therefore it did not matter that the same conviction

had been the subject of the previous deportation pro-

ceeding. Id. at 940; see also Channer v. Dep’t of Homeland

Sec., 527 F.3d 275, 280 n.4 (2d Cir. 2008) (“It may be that

when DHS attempts to remove aliens convicted of aggra-

vated felonies—as opposed to aliens falling into some

other category making them removable—the determina-

No. 07-2133 15

tion of whether res judicata applies changes, given Con-

gress’s clear and emphatic position with respect to such

aliens.”).

Similarly, in Lopez-Bazante v. Gonzales, 237 Fed. App’x

131, 134 (9th Cir. 2007) (unpublished),5 the INS brought

deportation proceedings against Lopez-Bazante, an

individual who had been convicted of sexual abuse of a

minor, alleging that he was deportable because he stood

convicted of a crime of moral turpitude; the deportation

proceedings were terminated, and the INS failed to

appeal the IJ’s decision. In 2002, after IIRIRA expanded

the definition of aggravated felony to include sexual

abuse of a minor, the INS again brought removal proceed-

ings against Lopez-Bazante alleging that he had been

convicted of an aggravated felony. He appealed the

BIA’s decision that res judicata was inapplicable, but the

Ninth Circuit rejected that submission. The court ex-

plained that res judicata was inapplicable because

the government could not have taken advantage of

[IIRIRA’s] expanded definition of aggravated felonies,

which included sexual abuse of a minor, to deport

Petitioner. The government’s inaction in challenging

the IJ’s 1995 termination of deportation proceedings

based on Petitioner’s alleged crimes involving moral

turpitude may have resulted in a final judgment with

respect to the 1994 second degree rape and sodomy

5

Ninth Cir. R. 36-3(b) (“Unpublished dispositions and orders

of this Court issued on or after January 1, 2007 may be cited to

the courts of this circuit in accordance with Fed. R. App. P.

32.1.”). Lopez-Bazante was decided on April 20, 2007.

16 No. 07-2133

convictions as crimes involving moral turpitude.

Under IIRIRA, however, the situation was altered

where the expanded class of crimes that qualify as

aggravated felonies swept Petitioner’s 1994 convic-

tions in the new grounds for removal. Therefore, the

import of the 1994 convictions, as a factual basis for

removability, can be relitigated.

Id. (internal quotation marks and citations omitted)

(footnote omitted).

The First Circuit also has suggested a similar result

under these circumstances. In Dalombo Fontes v. Gonzales,

the BIA similarly refused to apply res judicata “because the

statutory definition of aggravated felony extant at the

time of Fontes’s prior removal proceedings was different

and far narrower.” 498 F.3d 1, 2 (1st Cir. 2007). Although

it concluded that it did not have jurisdiction to consider

the res judicata argument, it nevertheless expressed

agreement with the BIA’s decision. The First Circuit

explained:

We think that the BIA correctly refused to terminate

Fontes’s removal proceedings in light of the clear

congressional intent that its broadened definition of

aggravated felony be applied retroactively. The gov-

ernment still had to prove that Fontes’s conviction

met the new definition of aggravated felony. It was

neither an error of law nor an abuse of discretion for

the BIA, to whom some deference on interpretation

of immigration statutes is owed, not to accept Fontes’s

claim that res judicata barred any further proceedings

by the government.

Id.

No. 07-2133 17

Thus, we must conclude that res judicata does not bar

the present removal effort by the DHS. We emphasize

that our holding is limited to the peculiar circumstances

before us—the res judicata effect of an administrative

final judgment rendered prior to a congressional decision

to expand the avenues of relief available and to make

those additional avenues of relief retroactive.

B.

Mr. Alvear-Velez next contends that the immigration

authorities violated IIRIRA’s transitional rules by charging

him as being removable based on the same criminal

conviction for which he previously was found to be not

deportable. Under IIRIRA § 309(c)(1), contends Mr. Alvear-

Velez, an alien who was in exclusion or deportation

proceedings as of IIRIRA’s effective date was not subject

to IIRIRA’s amendments, and the proceedings were to be

conducted without regard to those amendments. He

notes that, at the time of IIRIRA’s effective date, his

deportation proceedings had been terminated for more

than two years. According to Mr. Alvear-Velez, Congress’

stated intention not to subject IIRIRA’s amendments to

individuals pending in deportation proceedings during

the transitional phase must be read as a concomitant in-

tention not to apply IIRIRA’s amendments to individuals

whose deportation proceedings already were final.

We cannot accept Mr. Alvear-Velez’s contention. We

begin by setting forth the IIRIRA provisions on which

Mr. Alvear-Velez’s argument relies:

18 No. 07-2133

(a) IN GENERAL.—Except as provided in this section

and sections 303(b)(2), 306(c), 308(d)(2)(D), or 308(d)(5)

of this division, this subtitle and the amendments

made by this subtitle shall take effect on the first day

of the first month beginning more than 180 days after

the date of the enactment of this Act (in this title

referred to as the “title III-A effective date”).

(b) PROMULGATION OF REGULATIONS.—The

Attorney General shall first promulgate regulations to

carry out this subtitle by not later than 30 days before

the title III-A effective date.

(c) TRANSITION FOR ALIENS IN PROCEEDINGS.—

(1) GENERAL RULE THAT NEW RULES DO NOT

APPLY.—Subject to the succeeding provisions of

this subsection, in the case of an alien who is in

exclusion or deportation proceedings as of the title

III-A effective date—

(A) the amendments made by this subtitle shall

not apply, and

(B) the proceedings (including judicial review

thereof) shall continue to be conducted without

regard to such amendments.

IIRIRA §§ 309(a)-(c). As evident from the statutory lan-

guage, the transitional rules on which Mr. Alvear-Velez

relies, by their own terms, apply only to “the amendments

made by this subtitle.” Id. § 309(c)(1)(A); see also id. § 309(a).

That subtitle is subtitle A, which revised the procedures

for the removal of aliens. See Tran, 447 F.3d at 939 (“Title

III-A of the IIRIRA streamlined the removal process for

criminal aliens by mandating detention pending

No. 07-2133 19

removal proceedings, eliminating the principal forms

of relief from deportation, eliminating direct judicial

review, and mandating that the Attorney General shall

remove aliens within 90 days.”).

The amended and retroactive definition of aggravated

felony, see IIRIRA §§ 321(a)-(b), by contrast, is set forth in

subtitle B, entitled “Criminal Alien Provisions,” and

contains its own effective date, see IIRIRA § 321(c). Section

321(c) states: “The amendments made by this section

shall apply to actions taken on or after the date of enact-

ment of this Act [September 30, 1996], regardless of when

the conviction occurred . . . .” See also Tran, 447 F.3d at 939.

Accordingly, the transitional rules, by their own terms,

apply only to the procedures for removing aliens, rather

than to the substantive changes to the definition of aggra-

vated felony. Consequently, the DHS did not violate

IIRIRA’s transitional rules when it commenced removal

proceedings against Mr. Alvear-Velez based on his 1993

conviction.

There is no dispute in this case that the removal charges

against Mr. Alvear-Velez constitute, under IIRIRA § 321(c),

an “action taken” on or after the date of enactment of

IIRIRA, September 30, 1996. These proceedings were

instituted in 1999, and, therefore, the amended and retro-

active definition of aggravated felony was applied properly

to his 1993 Illinois conviction. See, e.g., Tran, 447 F.3d at

939, 940-41.6

6

As we noted earlier, Mr. Alvear-Velez makes two other

arguments. Neither requires extended discussion. Mr. Alvear-

(continued...)

20 No. 07-2133

6

(...continued)

Velez contends that the immigration authorities, rather than

filing new removal proceedings in 1999, could have filed on or

before September 30, 1996, a motion to reopen his original

deportation proceedings, under 8 C.F.R. § 1003.23(b)(1). Because

the immigration authorities did not do so, he submits, the

new proceedings should have been terminated. Although Mr.

Alvear-Velez is correct that this option was available to the

immigration authorities, nothing in regulation section

1003.23(b)(1) suggests that this was the immigration authorities’

only manner of proceeding. Cf. Channer, 527 F.3d at 281-82 &

n.6 (rejecting a similar argument made under 8 C.F.R. § 1003.30

because the “regulation permits but does not affirmatively

require DHS to supplement already existing charges”).

Mr. Alvear-Velez’s final contention is that the present re-

moval proceedings violate his substantive due process rights

under the Fifth Amendment. He contends that “[s]ubstantive

due process offers protection against repeated litigation of the

same issue by an administrative agency.” Petitioner’s Br. at 22.

Mr. Alvear-Velez has not presented a valid substantive due

process challenge to the DHS’ decision to institute removal

proceedings based on the same criminal conviction for which

he previously was found not to be deportable. In challenging

the decision of the DHS to institute these proceedings, Mr.

Alvear-Velez is challenging executive action. Therefore, to

succeed in his substantive due process claim, he must show that

the executive action is so egregious that it “shocks the con-

science.” See County of Sacramento v. Lewis, 523 U.S. 833, 847

(1998) (explaining that “the substantive component of the Due

Process Clause is violated by executive action only when it

can properly be characterized as arbitrary, or conscience

shocking, in a constitutional sense.” (internal quotation marks

(continued...)

No. 07-2133 21

Conclusion

For the foregoing reasons, the petition for review is

denied.

P ETITION FOR R EVIEW D ENIED

6

(...continued)

and citation omitted)). Here, the DHS merely instituted removal

proceedings based on a change in law that Congress itself made

retroactive. Far from being “egregious” or “conscience-shock-

ing,” the DHS’ action here was consistent with both the lan-

guage and intent of IIRIRA.

9-2-08