Duvall v. Atty Gen USA

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

2-7-2006

Duvall v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 04-4412

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-4412

ANDREA PATRICIA DUVALL,

(Nee Andrea Patricia Phillips)

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,*

Respondent

Initially docketed as an Appeal from the

United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 04-cv-03483)

District Judge: Honorable Michael M. Baylson

*

Because we have converted the present appeal into a

petition for direct review, we are required to substitute the

Attorney General for the respondent (William F. Riley, Jr.,

District Director, Bureau of Immigration Customs

Enforcement). 8 U.S.C. § 1252(b)(3)(A).

Converted to a Petition for Review from the

Board of Immigration Appeals

Pursuant to the Real ID Act of 2005

(Board No. A 71 041 214)

Immigration Judge Walt Durling

Argued December 7, 2005

Before: RENDELL, FISHER and

GREENBERG, Circuit Judges.

(Filed: February 7, 2006)

Anthony A. Yang (Argued)

United States Department of Justice

Appellate Section

950 Pennsylvania Avenue, N.W.

Room 7248

Washington, DC 20530

Robert M. Loeb

United States Department of Justice

Civil Division, Appellate Staff

601 D Street, N.W.

Room 9149

Washington, DC 20530

Attorneys for Respondent

2

Derek W. Gray (Argued)

Steel, Rudnick & Ruben

1608 Walnut Street, Suite 1500

Philadelphia, PA 19103

Attorney for Petitioner

OPINION OF THE COURT

FISHER, Circuit Judge.

We must decide in this case whether a litigation error by

the Immigration and Naturalization Service, resulting in an

adverse determination on the issue of alienage during

deportation proceedings, precludes the government from

thereafter seeking to remove the alien based on subsequent

criminal acts. We conclude that it does not.

I.

A.

Andrea Patricia Duvall is a native and citizen of Jamaica.

She entered this country on a valid tourist visa in 1987, as a

“visitor for pleasure.” She later married a United States citizen

and applied for adjustment of status to lawful permanent

resident. Her request was granted, and she became a permanent

resident in 1993.

3

Her days in this country were not all tourism and

romance, however. Between 1987 and 1993, Duvall committed

a series of retail thefts and petty larcenies in New Jersey, New

York, and Pennsylvania. These transgressions resulted in

numerous arrests and eleven convictions by state authorities.

Soon thereafter, the INS initiated deportation proceedings

against Duvall. She was charged as an alien subject to

deportation based on convictions of crimes involving moral

turpitude, 8 U.S.C. § 1227(a)(2)(A)(ii). A hearing was held

before an immigration judge on November 16, 1993.

The sole witness called by the INS was Duvall. Counsel

for the government asked her to confirm her place of birth and

citizenship. She refused. She asserted a privilege against self-

incrimination under the Fifth Amendment and would neither

confirm nor deny any of the allegations in the order to show

cause.1

The INS was caught off guard by this maneuver.

Counsel sought to introduce into evidence Duvall’s application

for adjustment of status, in which she admitted to being a native

and citizen of Jamaica; however, the document was ruled

inadmissible for noncompliance with local rules requiring

submission of evidence at least ten days before the hearing. The

INS had no other means by which to prove Duvall’s alienage,

1

Duvall argued that the answers to these questions would

expose false statements in her application for adjustment of

status, providing grounds for criminal prosecution.

4

and rested its case. Predictably, the immigration judge found

that there was not “clear, unequivocal, and convincing

evidence” to establish alienage. He accordingly terminated the

proceedings.

The INS sought review of the decision by the Board of

Immigration Appeals, but subsequently withdrew the appeal, for

reasons that are not explained in the record. The decision of the

immigration judge, terminating the proceedings, remains the

dispositive order in the case.

B.

The brush with deportation did not deter Duvall. She

continued her criminal exploits and was convicted twice, in

1995 and 2001, of felony retail theft under Pennsylvania law.

While incarcerated, Duvall was interviewed by an INS official.

She admitted in a sworn statement that she was a citizen of

Jamaica and an alien in this country.

Within days of this admission, the INS again initiated

deportation proceedings against Duvall. She was charged, based

on her encounters with law enforcement in 1995 and 2001, as an

alien subject to removal for convictions of an aggravated felony,

8 U.S.C. § 1227(a)(2)(A)(iii), and crimes involving moral

turpitude, 8 U.S.C. § 1227(a)(2)(A)(ii).

Removal proceedings were terminated in June 2001. The

presiding immigration judge, on motion of Duvall’s counsel,

held that the INS was collaterally estopped from relitigating the

issue of alienage because it had enjoyed a full and fair

5

opportunity to litigate the matter in the 1993 proceedings. The

INS, the judge held, was bound by the prior determination that

there was insufficient evidence to establish Duvall’s alienage.

The Board of Immigration Appeals reversed. It held that

collateral estoppel should be applied “more flexibly” in the

immigration context and that several factors militated against

imposing a bar to relitigation in these circumstances. First, the

INS had been prevented in the prior proceedings – albeit as a

result of its own failure to comply with local rules – from

introducing evidence of alienage. Second, the burden of proof

on the INS had changed between the first and second

proceedings: from “clear, unequivocal and convincing”

evidence to “clear and convincing” evidence.2 Finally, the

Board determined that application of the doctrine in this case,

where the alien had committed additional deportable offenses

following initial removal proceedings, would contravene

congressional intent.

2

The Board did not explain the difference between these

standards, but simply stated that the new standard was a lesser

burden.

6

On remand, the immigration judge allowed the INS 3 to

present evidence of Duvall’s alienage and found, by clear and

convincing evidence, that Duvall was an alien subject to

removal based on her 1995 and 2001 convictions. The order of

removal was later affirmed by the Board.

C.

Duvall then filed a petition for writ of habeas corpus in

the District Court for the Eastern District of Pennsylvania.4 She

renewed her argument that, under common law principles of

collateral estoppel, the INS was precluded from relitigating the

issue of alienage.

3

On March 1, 2003, after the Board had remanded the

case to the immigration judge, the INS ceased to exist and its

interior enforcement functions were transferred to the Bureau of

Immigration and Customs Enforcement (“BICE”), within the

Department of Homeland Security. See Homeland Security Act,

Pub. L. No. 107-296, § 441, 116 Stat. 2135, 2192 (2002). For

purposes of this discussion, the BICE will be referred to as the

INS.

4

Duvall had previously filed a petition for writ of habeas

corpus, after the Board had remanded the case to the

immigration judge. That petition was eventually dismissed for

lack of jurisdiction because Duvall had not yet exhausted

administrative remedies. Duvall v. Elwood, 336 F.3d 228, 229-

34 (3d Cir. 2003).

7

The District Court agreed. It held that the government’s

failure to satisfy its burden of proof on alienage during the 1993

proceedings collaterally estopped it from raising the issue again.

The District Court concluded that, “although . . . it [is]

manifestly unfair to the government to be foreclosed from

proving [Duvall’s] alienage, the issue of fairness is not

determinative on the doc[tr]ine of collateral estoppel.” A writ

of habeas corpus was granted in September 2004.

This timely appeal followed.

II.

The threshold issue is the nature of our jurisdiction.

When the District Court issued its decision, a challenge to an

order of removal could be raised in a petition for writ of habeas

corpus under 28 U.S.C. § 2241. See INS v. St. Cyr, 533 U.S.

289, 292 (2001). This is no longer the case. The Real ID Act of

2005, Pub. L. No. 109-13, 119 Stat. 231, enacted while this

appeal was pending, divests district courts of jurisdiction over

these matters. Id. § 106. The sole means by which an alien may

now challenge an order of removal is through a petition for

review directed to the court of appeals. See Jordon v. Attorney

General, 424 F.3d 320, 326-28 (3d Cir. 2005).

A petition for writ of habeas corpus challenging an order

of removal, pending on the date of the Act’s enactment, is to be

converted to a petition for review and transferred to the

appropriate court of appeals. Real ID Act § 106(c). We held in

Bonhometre v. Gonzales, 414 F.3d 442 (3d Cir. 2005), that,

despite the absence of express statutory guidance, a similar

8

practice should govern pending appeals involving district court

decisions granting habeas relief from an order of removal. Id.

at 446.

We follow this approach here. The notice of appeal will

be converted to a petition for review, see id., the Attorney

General will be substituted as the respondent in this case, see 8

U.S.C. § 1252(b)(3)(A), and the decision of the District Court,

now rendered a nullity, will be vacated, see Jordon, 424 F.3d at

326-28. We have jurisdiction to consider the decision of the

Board of Immigration Appeals under 8 U.S.C. § 1252(b)(2), and

exercise plenary review over questions of law, with due

deference to the agency’s interpretation of the Immigration and

Naturalization Act (INA). Jordon, 424 F.3d at 326-28; see also

Kamara v. Attorney General, 420 F.3d 202, 211 (3d Cir. 2005).

III.

Turning to the merits, the sole substantive question in this

appeal is whether the doctrine of collateral estoppel bars the INS

from relitigating the issue of alienage against Duvall. There are

two aspects to the inquiry. The first is whether the agency is

required to apply the doctrine imprimis. The second is, if so,

how the doctrine should be applied in this case.

A.

It is not the prerogative of the federal courts to impose

upon administrative agencies procedural doctrines or rules of

decision, whatever their historical pedigree. Astoria Fed. Sav.

& Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991); Vt. Yankee

9

Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435

U.S. 519, 524-25, 542 (1978). Congress has discretion, based

on its own weighing of policy goals, to prescribe the procedures

by which an agency will perform its work and render decisions.

Astoria, 501 U.S. at 108. The only constraint on this authority

is the Constitution, embodied primarily in the requirement of

“due process.” See id.; see also Landon v. Plasencia, 459 U.S.

21, 34-35 (1982).

Collateral estoppel is not constitutionally mandated, see

Astoria, 501 U.S. at 108, and, as such, the question of whether

an agency must apply the doctrine is to be answered by

reference to the enabling statute.5 Only if Congress required the

agency to apply collateral estoppel may the federal courts

enforce that obligation. See id.

A cursory review of the INA shows that the doctrine is

not explicitly prescribed. Nowhere does the Act use the phrase

“collateral estoppel,” “res judicata,” “issue preclusion,” or

“claim preclusion,” and nowhere does the Act expressly bar the

agency from relitigating issues previously decided.

5

Substantive due process may offer some protection

against repeated relitigation of the same issue by an

administrative agency. E.g., Babcock & Wilcox Co. v. Marshall,

610 F.2d 1128, 1138 & n.34 (3d Cir. 1979). This case, in which

the two proceedings were separated by seven years and were

based on distinct criminal acts, does not implicate these

concerns. See id.

10

But the absence of discussion cannot be viewed as

dispositive. Congress is expected to legislate against the

backdrop of well-established common law principles. Id. at

108-11. An accepted common law doctrine should be implied

in a statutory scheme, despite the absence of express

authorization, if application of the doctrine is consistent with the

structure and purpose of that scheme. Id.

Collateral estoppel has been recognized by the Supreme

Court as one of these well-established common law principles.

Id. at 107-08 (citing Parklane Hosiery Co. v. Shore, 439 U.S.

322, 326 (1979)). It has long been employed as a means of

ensuring repose. Id.

Such repose is justified on the sound and obvious

principle . . . that a losing litigant deserves no

rematch after a defeat fairly suffered, in

adversarial proceedings, on an issue identical in

substance to the one he subsequently seeks to

raise. To hold otherwise would, as a general

matter, impose unjustifiably upon those who have

already shouldered their burdens, and drain the

resources of an adjudicatory system with disputes

resisting resolution.

Id. Congress may be presumed, when enacting a statute

granting to an agency adjudicatory authority, to mandate

adherence to the doctrine of collateral estoppel. Id.

The INA grants adjudicatory authority to immigration

judges and the Board of Immigration Appeals. These entities

11

are charged with resolving factual and legal disputes based on

an evidentiary record developed by the parties following notice

and a hearing. 8 U.S.C. § 1229a(b), (c). These functions are

inherently judicial in nature, and properly subject to principles

of issue preclusion. See, e.g., United States v. Utah Constr. &

Min. Co., 384 U.S. 394, 422 (1966) (“When an administrative

agency is acting in a judicial capacity and resolved disputed

issues of fact properly before it which the parties have had an

adequate opportunity to litigate, the courts have not hesitated to

apply res judicata to enforce repose.”). Therefore, the INA will

be read to incorporate principles of collateral estoppel if

application of the doctrine does not frustrate congressional

intent or impede the effective functioning of the agency.

Astoria, 501 U.S. at 108-11; Utah Constr., 384 U.S. at 422.

The structure of the INA is consistent with collateral

estoppel. The Act establishes an adversarial system under which

the parties bear different burdens of proof with respect to

various issues. 8 U.S.C. § 1229a(b), (c). The INS bears the

burden of proving, by “clear and convincing” evidence, that the

individual is an alien and is subject to deportation. Id.

§ 1229a(c)(3)(A). Only if the INS satisfies this burden, based

on evidence presented at a hearing, may the immigration judge

issue an order authorizing removal. Id. § 1229a(c)(1)(A).

Imposition of this burden would be rendered largely

meaningless if the INA is not interpreted to incorporate

principles of collateral estoppel. Failure to satisfy the burden of

proof at one hearing before one immigration judge would have

no effect on the government’s ability to bring successive

proceedings in front of successive immigration judges. The

12

same evidence could be introduced and the same witnesses

could be interrogated, over and over, until the desired result is

achieved. Despite the congressional command that the INS

bears the burden of proving removability based on evidence

offered during a single immigration hearing, see id. § 1229a(c),

the INS would have no real incentive to marshal all of its

evidence or present its best case against an individual. If it loses

in one hearing, it may simply reinitiate the process – repeatedly

if necessary.

Collateral estoppel would prevent this result. It would

require, consistent with the INA, that the INS present all

available evidence against the individual during a single hearing.

Only if the INS can do so, and satisfy its burden of proof, will

it be entitled to an order of removal. See id. § 1229a(c)(1)(A).

Indeed, the INA itself recognizes that collateral estoppel

will be applied in immigration proceedings. One section of the

Act, 8 U.S.C. § 1228, allows the United States to request an

order of removal from a federal judge during criminal

proceedings involving an alien convicted of an aggravated

felony. Id. The statute notably clarifies that “[d]enial of a

request for a judicial order of removal shall not preclude the

[INS] from initiating removal proceedings . . . upon the same

ground of deportability or upon any other ground of

deportability.” Id. § 1228(c)(4). In other words, the Act

expressly provides that collateral estoppel does not apply in this

circumstance. There would be no reason for Congress to

include this provision unless it anticipated that the doctrine

would otherwise apply in proceedings under the INA.

13

Any possible ambiguity in the congressional language

may be resolved by reference to agency practice, which supports

incorporation of common law principles of preclusion. The

Board of Immigration Appeals recognized in In re Fedorenko,

19 I. & N. Dec. 57 (BIA 1984), that the “judicially-developed

doctrine of collateral estoppel” applies in immigration

proceedings. See id. at 61. This conclusion reflects the

agency’s understanding that application of common law

collateral estoppel does not contravene the language of the INA

or congressional intent. This interpretation of the statute is

entitled to deference. INS v. Aguirre-Aguirre, 526 U.S. 415, 424

(1999); see also Chevron U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 843 (1984).

It also accords with other opinions and authorities. The

Court of Appeals for the Ninth Circuit held, in

Ramon-Sepulveda v. INS, 824 F.2d 749 (9th Cir. 1987) (per

curiam), that a failure of proof on the issue of alienage

collaterally estops the INS from relitigating the issue in

subsequent proceedings. Id. at 750-51. A similar conclusion

was reached in Medina v. INS, 993 F.2d 499 (5th Cir. 1993), in

which the Court of Appeals for the Fifth Circuit determined that

collateral estoppel was consistent with the INA and that the

doctrine precludes relitigation of an individual’s citizenship if

the issue was conceded by the INS during a prior proceeding.

Id. at 502-504 & n.15. The same position is echoed elsewhere.6

6

See Hamdan v. Gonzales, 425 F.3d 1051, 1059-60 (7th

Cir. 2005); Santana-Albarran v. Ashcroft, 393 F.3d 699, 703-04

(6th Cir. 2005); Johnson v. Ashcroft, 378 F.3d 164, 172 n.10 (2d

14

Cir. 2004); Kairys v. INS, 981 F.2d 937, 939-41 (7th Cir. 1992);

Nat’l Immigration Project of the Nat’l Law. Guild, Immigration

Law and Defense § 7:73 (3d ed. 2004) (“[A]n immigration

judge’s order terminating deportation proceedings for failure to

prove alienage has been held to be res judicata in later

deportation proceedings against the same person.”); see also

Restatement (Second) of Judgments § 83 (1982) (“[A] valid and

final adjudicative determination by an administrative tribunal

has the same effects under the rules of res judicata, subject to

the same exceptions and qualifications, as a judgment of a

court.”); 18 James Wm. Moore et al., Moore’s Federal

Practice–Civil § 132.03[e] (3d ed. 2001) (“Issues of fact

litigated and decided in a prior administrative proceeding may

have issue preclusive effect on issues of fact presented in a

subsequent administrative or judicial action.”); Charles H. Koch,

Jr., Administrative Law & Practice § 5.72[1] (2d ed. 1997)

(“The doctrines of res judicata and collateral estoppel are

applicable to administrative proceedings when an agency is

acting in a judicial capacity.”); cf. Cook v. Principi, 318 F.3d

1334, 1337 (Fed. Cir. 2002) (applying res judicata to

administrative proceedings); Jones v. SEC, 115 F.3d 1173, 1178

(4th Cir. 1997) (same); SEC v. First Jersey Sec., Inc., 101 F.3d

1450, 1463-64 (2d Cir. 1996) (same). But cf. Title v. INS, 322

F.2d 21, 23-24 (9th Cir. 1963) (rejecting application of doctrine

to preclude alien from relitigating issue of membership in

communist party, previously resolved in denaturalization

proceedings), rejected by Kairys, 981 F.2d at 939-41, and

distinguished by Fedorenko, 19 I. & N. Dec. at 62-64 (“[W]e do

not violate Congress’ intent if we apply collateral estoppel to the

15

No case is to the contrary. The Supreme Court in

Vermont Yankee Nuclear Power Corp. v. Natural Resources

Defense Council, Inc., 435 U.S. 519 (1978), held that the federal

courts cannot impose procedural requirements on an agency

beyond those required under the governing statute (in that case,

the Administrative Procedures Act, 5 U.S.C. § 553), see Vt.

Yankee, 435 U.S. at 525, but it did not discuss whether a

particular common law doctrine should be “read into” a

legislative scheme and thereby made statutorily binding upon

the agency. In Pearson v. Williams, 202 U.S. 281 (1906)

(Holmes, J.), the Court concluded that principles of collateral

estoppel did not prevent the immigration service from instituting

deportation proceedings after initially granting an alien

permission to enter the country, see id. at 283-85, but this

decision was based primarily on the limited scope and non-

adjudicative nature of the entry examination, see id., attributes

that are not shared by modern removal hearings. Cf. Astoria,

501 U.S. at 110 (limiting Pearson to its facts); Utah Constr.,

384 U.S. at 421-22 & n.19 (same). Those opinions that have

held that collateral estoppel does not apply in a particular

administrative context have been premised on language in the

governing statute expressing a contrary intent, language which

does not appear in the INA. See Astoria, 501 U.S. at 110 (citing

Univ. of Tenn. v. Elliott, 478 U.S. 788 (1986)); see also Wallace

Corp. v. NLRB, 323 U.S. 248, 253 (1944).

The INS nevertheless argues that, even if preclusion

principles should be read into the INA, collateral estoppel

respondent’s denaturalization judgment.”).

16

should bar relitigation of an issue only in subsequent

proceedings in the federal courts – not in proceedings within the

agency itself. It stresses that the decisions in which the Supreme

Court has discussed the doctrine, particularly Astoria Federal

Savings & Loan Association v. Solimino, 501 U.S. 104 (1991),

involved cases brought in federal court following an adverse

agency determination. See id. at 106-07. On this premise, the

INS posits that decisions of the agency should be given estoppel

effect only in subsequent judicial proceedings.

There is no basis for this distinction. The doctrine of

collateral estoppel has long been understood to apply in all

proceedings that may be deemed “adjudicative,” no matter

whether the governing entity is a “court” or an “agency.” See

Utah Constr., 384 U.S. at 421-22 & n.20 (citing 2 Kenneth Culp

Davis, Administrative Law Treatise §§ 18.01-18.12 (1958); I.

Groner & H. Sternstein, Res Judicata in Federal Administrative

Law, 39 Iowa L. Rev. 300 (1954)); United States v. Int’l Bldg.

Co., 345 U.S. 502, 504-05 (1953); Comm’r v. Sunnen, 333 U.S.

591, 597-99 (1948); see also Pearson, 202 U.S. at 284-85.7 The

adversarial system of dispute resolution established in the INA

is plainly adjudicatory in character and susceptible to full

7

See also Restatement (Second) of Judgments § 83 cmt.

a (“[Collateral estoppel] applies when a final adjudicative

determination by an administrative tribunal is invoked as the

basis of claim or issue preclusion in a subsequent action,

whether that subsequent action is another proceeding in the

same administrative tribunal or is a proceeding in some other

administrative or judicial tribunal.”).

17

application of common law principles of preclusion. See, e.g.,

Restatement (Second) of Judgments § 83. Nothing in the statute

or the legislative history – nor any authority of which this Court

is aware – suggests that collateral estoppel should bar

relitigation in proceedings before the federal courts, but not in

proceedings before the agency itself. Accord Hamdan v.

Gonzales, 425 F.3d 1051, 1059-60 (7th Cir. 2005); Santana-

Albarran v. Ashcroft, 393 F.3d 699, 703-04 (6th Cir. 2005);

Medina, 993 F.2d at 503-04; Ramon-Sepulveda, 824 F.2d at

750; Restatement (Second) of Judgments § 83, cited with

approval in Elliott, 478 U.S. at 798 n.6; Charles H. Koch, Jr.,

Administrative Law & Practice § 5.72 (2d ed. 1997); 18 James

Wm. Moore et al., Moore’s Federal Practice–Civil § 132.03[e]

(3d ed. 2001).

Requiring the INS to meet its burden of proof at a single

hearing is consistent with the statutory scheme, as interpreted by

the administering agency, see Fedorenko, 19 I. & N. Dec. at 61,

and will not frustrate the goals of Congress. The “lenient

presumption in favor of administrative estoppel” holds, see

Astoria, 501 U.S. at 108, and the INA will be held to incorporate

common law principles of collateral estoppel.

B.

The question then becomes how the doctrine should be

applied in this case. Courts and commentators have consistently

recognized that collateral estoppel was borne of equity and is

therefore “flexible,” bending to satisfy its underlying purpose in

light of the nature of the proceedings. See Nat’l R.R. Passenger

Corp. v. Pa. Pub. Util. Comm’n, 288 F.3d 519, 528 (3d Cir.

18

2002). In other words, “[a]lthough [collateral] estoppel is

favored as a matter of general policy, its suitability may vary

according to the specific context of the rights at stake, the power

of the agency, and the relative adequacy of agency procedures.”

Astoria, 501 U.S. at 110 (citing Pearson, 202 U.S. at 285).

The flexibility of the doctrine is recognized in the several

“exceptions” enumerated by the Restatement (Second) of

Judgments. See Nat’l R.R., 288 F.3d at 525 & n.3 (citing

Restatement (Second) of Judgments § 28). Collateral estoppel

generally applies when the same issue was previously litigated

by the same parties and was actually decided by a tribunal of

competent jurisdiction. E.g., Burlington N. R.R. Co. v. Hyundai

Merch. Marine Co., 63 F.3d 1227, 1231-32 (3d Cir. 1995).

However, it will not preclude relitigation of the issue when there

is a substantial difference in the procedures employed by the

prior and current tribunals, a material intervening change in

governing law or the burden of persuasion, or a “clear and

convincing need for a new determination of the issue . . .

because of the potential adverse impact of the determination on

the public interest.” Nat’l R.R., 288 F.3d at 525 n.3 (quoting

Restatement (Second) of Judgments § 28). Collateral estoppel

in the administrative context must be informed by considerations

of agency structure and legislative policy. See, e.g., Kairys, 981

F.2d at 939-41; Koch, supra, § 5.72[1]; 18 Moore et al., supra,

§ 12.30[e]; see also Restatement (Second) of Judgments § 83.

These considerations counsel against application of the

doctrine in this case. A primary goal of several recent overhauls

of the INA has been to ensure and expedite the removal of aliens

convicted of serious crimes. See, e.g., Real ID Act § 106;

19

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.

No. 104-132, §§ 423, 440, 442, 110 Stat. 1214, 1272, 1276-80;

Illegal Immigration Reform and Immigrant Responsibility Act

of 1996, Pub. L. No. 104-208, § 321, 110 Stat. 3009-627; see

also Leocal v. Ashcroft, 125 S. Ct. 377, 379 n.1 (2004)

(examining history of enactments). This intent pervades the

statutory provisions, which not only establish special

proceedings to handle such cases but also largely insulate orders

of removal against criminal aliens from judicial review. See 8

U.S.C. §§ 1228, 1252; see also id. § 1226(c)(1) (providing for

mandatory detention of criminal aliens).

To apply the doctrine in a case such as this, where a

clearly deportable alien continues to commit criminal acts after

initial proceedings are terminated, would frustrate this statutory

purpose. It would effectively preclude the INS from ever

relitigating the issue of alienage or ever securing removal,

despite the alien’s ongoing criminal conduct. See 8 U.S.C.

§§ 1101(a)(3), 1229a(c) (defining alienage as an essential

element of any charge of removability). The alien could flout

any rule or commit any offense without fear of deportation. See

Nat’l Immigration Project of the Nat’l Law. Guild, Immigration

Law and Defense § 7:73 (3d ed. 2004) (characterizing the alien

as being in a “nondeportable state”). This prospective

immunization against removal is plainly contrary to

congressional intent.

Legislative policy dictates that the bar against relitigation

must drop when the alien continues to commit criminal acts after

initial immigration proceedings. Nothing in the INA implies

that collateral estoppel should be applied in this circumstance,

20

and, as discussed previously, there is every reason to infer that

Congress intended the contrary.8 See, e.g., 8 U.S.C. §§ 1228,

1252 (providing for expedited removal of aliens convicted of

serious crimes).

The immigration judge in the 1993 proceedings did not

find that Duvall was a citizen of the United States or that she

was entitled to remain in this country. He did not doubt that

Duvall was, in fact, an alien or that she was subject to removal.

Rather, he merely terminated proceedings when the INS

unexpectedly found itself unable to secure answers from Duvall

regarding her birthplace or to introduce evidence – available but

inadmissible under local procedural rules – that could have

satisfied its burden of proof on the issue of alienage. Cf.

Medina, 993 F.2d at 502-04 & n.15 (holding that the INS was

collaterally estopped from relitigating the issue of citizenship

when an immigration judge had expressly found in prior

proceedings that the individual was a citizen).

The termination of those proceedings had limited

collateral effect. Duvall had not been granted citizenship and

was undoubtedly deportable. She remained in the United States

not by any affirmative entitlement, but by virtue of a simple

litigation error. Her subsequent convictions demonstrated,

8

We do not suggest, by holding that collateral estoppel

does not bar relitigation in these cases, that it necessarily does

bar relitigation in others. Different legislative policies, which

are not implicated here, may counsel against application of the

doctrine in other situations.

21

beyond doubt, that her continued presence in this country

contravened congressional intent and that continued application

of the doctrine of collateral estoppel was unwarranted. There

was thereafter no bar to relitigation of Duvall’s alienage or to

entry of the order of removal.

IV.

The government’s failure to prove alienage during the

1993 proceedings granted Duvall a conditional reprieve from

deportation. But it did not grant her an absolute pardon. Her

protection lasted only for so long as she adhered to the laws of

this country. She failed to do so, and was thus no longer entitled

to the benefits of collateral estoppel. Deportation proceedings

were properly commenced, and the order of removal was

properly entered, based on Duvall’s criminal convictions in

1995 and 2001.

Accordingly, the order of the District Court will be

vacated and the petition for review will be denied.

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