                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                                                              F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                                                                             December 8, 2006
                              FOR THE FIFTH CIRCUIT                       Charles R. Fulbruge III
                                                                                  Clerk


                                     No. 05-61116



      MOSTAFA LABEB OMRAN, also known as Mustafa L. Omron,

                                                Petitioner,

                                  versus

      ALBERTO R. GONZALES,
      ATTORNEY GENERAL OF THE UNITED STATES,

                                                Respondent.



                             Petition for Review from
                        the Board of Immigration Appeals
                                   (A26 158 526)
          _______________________________________________________

Before REAVLEY, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

      Mostafa Labeb Omran petitions for review of a Board of Immigration Appeals

(“BIA”) decision dismissing his appeal and ordering him removed from the United States

as an alien convicted of an aggravated felony. Omran contends that res judicata bars the


      *
         Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
instant removal proceeding. We disagree and deny the petition.

       Omran is a native citizen of Egypt and a lawful permanent resident of the United

States. On July 15, 1994, Omran was convicted in New York State of the crime of first-

degree manslaughter, and sentenced to a term of 5 to 15 years in prison. The crime at

issue took place in June of 1990. As a result of his conviction, the former Immigration

and Naturalization Service (the “INS”) commenced removal proceedings against Omran,

seeking to deport him as an alien convicted of an aggravated felony. See 8 U.S.C.A. §

1251(a)(2)(A)(iii) (West 1994) (current version at 8 U.S.C.A. § 1227 (West 2005)).

However, the INS agreed to terminate the proceedings when it was determined that

Omran committed his crime prior to the effective date of the legislation. (See

Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5048 (current version at 8

U.S.C.A §1101 (West 2005)) (definition applies to "offenses committed on or after the

date of" November 29, 1990, the date of enactment).

       In 2004, the INS again initiated removal proceedings against Omran based on the

1994 manslaughter conviction. Omran argued that he was a United States national

because he had sworn his allegiance to the United States in a 1989 application for

naturalization that was denied, and that the proceedings were barred by res judicata,

because the removal proceedings in 1994 determined that he was not deportable. The

Immigration Judge (“IJ”) determined, first, that the prior termination was not on the

merits, and thus, res judicata did not apply; and second, that Omran was not a citizen and



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was therefore removable.

       The BIA dismissed Omran’s appeal, holding that Omran was not a United States

citizen and that res judicata was inapplicable because the 2004 proceeding was based on a

new cause of action under the Illegal Immigration Reform and Immigration

Responsibility Act of 1996 (“IIRIRA”). IIRIRA provides that all definitions of

aggravated felony apply regardless of the date of conviction “[n]otwithstanding any other

provision of law (including any effective date). . . .”1

       Omran argues that he is a national of the United States. The government contends

that Omran has waived this argument, as he did not fully brief it on appeal. However, as

the Court does not hold pro se petitioners to a stringent standard, Omran has adequately

preserved the issue.2 Nonetheless, Omran is not a United States national because he has

not completed the naturalization process.3

       Omran also argues that the BIA erred in finding that res judicata did not apply to

his removal proceeding. Res judicata does not bar the second proceeding against Omran

because the controlling law changed before this proceeding. Moch v. East Baton Rouge

Parish Sch. Bd., 548 F.2d 594, 597 (5th Cir. 1977) (citing State Farm Auto. Ins. Co. v.

Duel, 324 U.S. 154, 162, 65 S. Ct. 573, 577 (1945)). In IIRIRA, Congress made it clear



       1
           8 U.S.C.A. §1101(a)(43) (West 2005).
       2
           See Haines v. Kerner, 404 U.S. 519, 520–21, 92 S. Ct. 594, 596 (1972).
       3
           Omolo v. Gonzales, 452 F.3d 404, 409 (5th Cir. 2006).

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that immigrants who have been convicted of an aggravated felony are deportable,

regardless of the date of their offense.4 Omran asks to escape this mandate because the

INS mistakenly initiated proceedings against him prior to IIRIRA’s enactment. That

holding would violate the terms of the statute and the “overriding public policy” which

Congress expressed in passing IIRIRA.5

DENIED.




         4
             See 8 U.S.C.A. §1101(a)(43) (West 2005).
         5
             See Moch v. East Baton Rouge Parish Sch. Bd., 548 F.2d 594, 597 (5th Cir.
1977).

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