     Case: 17-60212    Document: 00515263273     Page: 1   Date Filed: 01/08/2020




                        REVISED January 8, 2020

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                  No. 17-60212                         FILED
                                                                 January 6, 2020
                                                                  Lyle W. Cayce
MIGUEL ANGEL CHAVEZ-MERCADO,                                           Clerk

             Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

             Respondent


                      Petition for Review of an Order of 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.
                                        I
      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
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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


       1 The BIA dismissed the proceedings against Chavez despite our decision to rehear
the case en banc. See Gonzalez-Longoria, 831 F.3d 670, 675 (5th Cir. 2016) (en banc) (holding
that § 16(b) was not unconstitutionally vague). The Supreme Court later abrogated the
Gonzalez-Longoria en banc court’s opinion, holding that § 16(b) was unconstitutionally
vague. See Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018).
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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.
                                              II
       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




       2The IJ relied extensively on United States v. Uribe, 838 F.3d 667, 669 (5th Cir. 2016),
which held that a conviction for burglary of a dwelling under most subsections of Texas Penal
Code § 30.02 constituted general burglary and was thus a crime of violence. Though we later
overruled Uribe sitting en banc in United States v. Herrold, 883 F.3d 517, 520 (5th Cir. 2018),
the Supreme Court’s decision in Quarles v. United States, 139 S. Ct. 1872 (2019), makes clear
that Chavez’s conviction for burglary of a dwelling under § 30.02(c)(2) constitutes a crime of
violence under § 1101(43)(F).
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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).
                                            III
       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



       3 The IJ noted, however, that res judicata would preclude the DHS from initiating
subsequent removal proceedings against him based on his February 2015 conviction for
evading arrest, as the issue of whether this constituted an aggravated felony was resolved in
the prior proceedings.
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                                  No. 17-60212
prior judgment” or, in other words, to situations in which “the allegedly barred
claim [arises] out of the same nucleus of operative facts involved in the prior
litigation.” Id. (citing Southern Jam, Inc. v. Robinson, 675 F.2d 94, 96 (5th Cir.
1982)).
       Chavez argues that the BIA’s decision was erroneous for two reasons.
First, he contends that the DHS knew of his burglary conviction when it
brought the first proceedings, and its decision not to bring removal proceedings
on that basis at that time barred it from doing so in subsequent litigation.
However, while the DHS may have been aware of the December 2014 burglary
conviction when it initiated the first proceeding against Chavez, the burglary
conviction did not involve “issues of fact or law necessary to the decision in the
prior judgment” involving Chavez’s evading arrest conviction, for reasons
explained below. See Rhoades, 694 F.2d at 1048.
       Second, Chavez argues that his removal proceedings were both based on
the same statutory provision, § 1227(a)(2)(A)(iii), and therefore the BIA erred
by basing its reasoning in part on Peters v. Ashcroft, 383 F.3d 302, 305 n.2 (5th
Cir. 2004), which involved charges of removability under two different
statutory provisions. Although we have found res judicata inapplicable where
subsequent removal proceedings were brought under a different statutory
provision, see Peters, 383 F.3d at 305 n.2; Maringo v. Holder, 364 F. App’x 903
(5th Cir. 2010), this does not necessarily mean that res judicata applies
because two removal proceedings were brought under the same statutory
provision. Though we have not yet had occasion to decide whether res judicata
applies under these precise circumstances, we do so now.
       We use a transactional test to determine whether two cases involve the
same claim or cause of action and res judicata applies. See United States v.
Davenport, 484 F.3d 321, 326 (5th Cir. 2007) (citing RESTATEMENT (SECOND)
OF   JUDGMENTS, § 24); Test Masters, 428 F.3d at 571.      As noted, the critical
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                                  No. 17-60212
question is “whether the two cases . . . are based on ‘the same nucleus of
operative facts,’” rather than the type of relief requested or the substantive
theories advanced. Davenport, 484 F.3d at 326; see Rhoades, 694 F.2d at 1048.
The Second and Eighth Circuits have applied the transactional test in
immigration cases and determined that res judicata did not apply under
circumstances similar to those here. See Cabrera Cardona v. Holder, 754 F.3d
528 (8th Cir. 2014); Channer v. Dep’t of Homeland Sec., 527 F.3d 275 (2d Cir.
2008).
      In Cabrera Cardona, the petitioner was convicted of manslaughter and
tampering with evidence arising from his actions on the same day, and the two
crimes were charged in the same charging document. See 754 F.3d at 529. The
DHS initiated removal proceedings based solely on the petitioner’s
manslaughter conviction, which it claimed was an aggravated felony; an IJ
ordered the petitioner removed, but the BIA terminated the proceedings. Id.
The DHS later filed a new charge of removability based on petitioner’s
tampering-with-evidence offense. Id. Both the IJ and BIA held res judicata
inapplicable, concluding that petitioner’s convictions for manslaughter and
tampering-with-evidence were “different causes of action that [arose] out of
different facts, require[d] different proof, and redress[ed] different wrongs.” Id.
at 529–30. The Eighth Circuit, examining the elements of each crime and
concluding that the Government would be required to present different
evidence to prove each offense, held that the factual predicate of each crime
was different and therefore res judicata did not apply. Id. at 530.
      Similarly, in Channer, the petitioner was convicted of state and federal
crimes arising out of two separate incidents: a federal charge of carrying a
firearm during a drug trafficking crime and state charges of robbery in the first
degree and conspiracy to commit robbery.           See 527 F.3d at 277.       The
Immigration and Naturalization Services (INS) initially charged the petitioner
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                                 No. 17-60212
as removable based solely on the federal conviction and, when the petitioner’s
federal conviction was later vacated and his removal was terminated, the INS
initiated new removal proceedings based on his state convictions. Id. at 277–
78. The Second Circuit held that res judicata did not apply to bar the second
proceeding, concluding that the two proceedings involved different causes of
action and “did not originate from the same nucleus of operative fact.” Id. at
278–79, 281–82. The court reasoned, inter alia, that although the Government
sought the same remedy in each proceeding—deportation for the commission
of an aggravated felony—each conviction underlying the proceedings contained
different elements and required different proof. Id. at 281.
      Consistent with these opinions, we conclude that the convictions for
evading arrest with a motor vehicle and burglary of a habitation underlying
Chavez’s removal proceedings were not “based on the same nucleus of
operative facts.” See Cabrera Cardona, 754 F.3d at 529; Channer, 527 F.3d at
280; Davenport, 484 F.3d at 326. Chavez was convicted of both offenses on
December 8, 2014. However, his first offense of evading arrest with a motor
vehicle occurred in November 2013.         His second offense of burglary of a
habitation occurred in March 2014. Moreover, each of Chavez’s offenses had
distinct elements and required different proof for conviction. See Cabrera
Cardona, 754 F.3d at 530; Channer, 527 F.3d at 281. His conviction for evading
arrest with a motor vehicle was based on proof that he intentionally fled, using
a vehicle, from an officer attempting to lawfully arrest or detain him. By
contrast, his conviction for burglary of a habitation required proof that he
“intentionally or knowingly enter[ed] a habitation, without the effective
consent of . . . the owner thereof, with intent to commit theft, and attempted to
commit or committed a theft.” Although the DHS sought the same remedy in
each proceeding—Chavez’s deportation for an aggravated felony—the
operative facts underlying each conviction that formed the basis of removal
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                                  No. 17-60212
were different. See Channer, 527 F.3d at 281; cf. Davenport, 484 F.3d at 326
(finding the operative facts in two cases identical because they were based on
the same transactions and events).       Because the two proceedings against
Chavez did not “deal[] with the same claim[s] or cause[s] of action,” res judicata
did not preclude the DHS from seeking to remove Chavez on the basis of his
burglary conviction. See Test Masters, 428 F.3d at 571.
                                       IV
      Chavez also argues, for the first time on appeal, that the DHS was
precluded from filing a second NTA by 8 C.F.R. § 1240.10(e). He claims that
this provision allows the DHS to pursue certain charges over others or
substitute or amend pleadings, but not to initiate a second removal proceeding
after failing to advance a charge of removability in the first. Because Chavez
did not raise this argument before the BIA, we lack jurisdiction to consider it.
See Wang v. Ashcroft, 260 F.3d 448, 452–53 (5th Cir. 2001) (a petitioner’s
failure to raise an issue before the BIA is a jurisdictional bar to our
consideration of the issue).
                                       ***
      For these reasons, we DENY Chavez’s petition for review in part and
DISMISS in part for lack of jurisdiction.




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