                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-5-2006

Mendoza v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5493




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-5493


                              MARGARITO MENDOZA,

                                                      Petitioner

                                           v.

              ATTORNEY GENERAL OF THE UNITED STATES;
          SECRETARY OF DEPARTMENT OF HOMELAND SECURITY;
                DEPARTMENT OF HOMELAND SECURITY

                                                      Respondent



                        On Petition for Review of an Order of
                         The Board of Immigration Appeals
                   Immigration Judge: Honorable Walter A. Durling
                                 (No. A35-881-814)


                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 28, 2006

                     Before: McKEE, and AMBRO, Circuit Judges
                             and RESTANI,* Chief Judge

                           (Opinion filed : October 5, 2006)




  *
    Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
                                        OPINION


AMBRO, Circuit Judge

       Margarito Mendoza, a native and citizen of Trinidad and Tobago, has been living

in the United States as a lawful permanent resident since 1977. In June 2000, the then

Immigration and Naturalization Service (“INS”)1 began removal proceedings against

Mendoza on the basis of his 1999 conviction for a firearms offense. Mendoza admitted

removability and asked for discretionary cancellation of removal. At his merits hearing in

October 2000, Mendoza alerted the Immigration Judge to a pending indictment for a

controlled substance offense and asked that the hearing be continued. The Immigration

Judge declined, stating that he would consider the indictment as a factor in his decision

but that he would rather not continue the proceeding given that no one knew when or

whether the controlled substance charge would be prosecuted. At the conclusion of the

merits hearing, the Immigration Judge granted cancellation of removal.

       In July 2001, Mendoza was convicted of the controlled substance offense, and the

INS began removal proceedings under 8 U.S.C. § 1227(a)(2)(B)(i). Mendoza conceded

removability but challenged the proceedings on res judicata grounds, arguing that the

Immigration Judge had already considered and granted cancellation of removal in spite of



  1
   The INS’s functions are now carried out by the Bureau of Immigration and Customs
Enforcement of the Department of Homeland Security.

                                             2
his indictment for the controlled substance offense in the October 2000 removal

proceeding. The Immigration Judge determined that res judicata was inapplicable and

ordered Mendoza’s removal. He appealed to the Board of Immigration Appeals (“BIA”),

and his appeal was denied on the merits. This petition for review follows.2

       In appropriate circumstances we apply the doctrine of res judicata to

administrative agencies acting in a judicial capacity. United States v. Utah Constr. &

Mining Co., 384 U.S. 394, 422 (1966). Res judicata includes both claim and issue

preclusion. Venuto v. Witco Corp., 117 F.3d 754, 758 n.5 (3d Cir. 1997). Because

Mendoza does not specify which of the two he believes applies, we analyze both.

       “[C]laim preclusion prohibits litigants from pursuing a matter that has not

previously been litigated but which should have been addressed in an earlier suit.”

General Elec. Co. v. Deutz AG, 270 F.3d 144, 158 n.5 (3d Cir. 2001). The question of

whether claim preclusion operates to force the Government to join all extant grounds for

removal in one proceeding is complicated and unsettled because of the quasi-criminal

nature of removal actions. See Johnson v. Ashcroft, 378 F.3d 164, 172 n.10 (2d Cir.

2004). We need not address the question in this case, as the INS could not have joined its

8 U.S.C. § 1227(a)(2)(B)(i) claim for removal in the 2000 removal proceeding because

Mendoza had not yet been convicted of a controlled substance offense. Under the statute,



  2
   We have jurisdiction to review final orders of removal of the BIA under 8 U.S.C.
§ 1252. We review the Board’s conclusions of law de novo. Filja v. Gonzales, 447 F.3d
241, 251 (3d Cir. 2006).

                                             3
an alien only becomes subject to removal once he is convicted of a controlled substance

offense. 8 U.S.C. § 1227(a)(2)(B)(i) (“Any alien who at any time after admission has

been convicted of a violation of (or a conspiracy or attempt to violate) any law or

regulation of a State, the United States, or a foreign country relating to a controlled

substance . . . is deportable”) (emphasis added). Because Mendoza’s removability on the

basis of his controlled substance conviction could not have been litigated in the 2000

removal proceeding, the BIA correctly held that claim preclusion does not prevent the

Department of Homeland Security from litigating the issue now.

       Issue preclusion “refers to the effect of a judgment in foreclosing further

adjudication of a matter actually decided.” Gen. Elec., 270 F.3d at 158 n.5. Here,

Mendoza claims that his removability on the basis of his controlled substance violation

was determined in the 2000 removal proceeding. The Immigration Judge in that

proceeding, however, explicitly stated that he was not deciding whether a future

conviction for the controlled substance charge would render Mendoza removable, nor

could he have done so given that removability only attaches upon conviction. Appellant’s

App. Vol. I 3 (“[I]f [Mendoza] is convicted [of the controlled substances offense] and the

[INS] believes that it is a violation of immigration laws, [it has] every right to . . . arrest

him and turn him back into the system and proceed at that point.”) (Transcript of October

25, 2000 merits hearing) (statement of Judge Durling); see also 8 U.S.C.

§ 1227(a)(2)(B)(i). Mendoza’s confusion seems to arise from the Immigration Judge’s

statement that he would consider the charges against Mendoza as a factor in determining

                                                4
whether to cancel removal on the basis of the weapons conviction. This consideration,

however, was entirely proper; immigration judges are authorized to consider allegations

of criminal conduct when deciding whether to grant a discretionary remedy such as

cancellation of removal. In re Thomas, 21 I&N Dec. 20, 23 (BIA 1995). This

consideration, however, is different from the Government initiating a formal removal

proceeding once such allegations result in a conviction, and has no preclusive effect on

such a proceeding.

       Given that neither claim nor issue preclusion prevents the Government from

seeking to remove Mendoza on the basis of his July 2001 controlled substance conviction,

the petition for review is denied.




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