                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-1678



ABLAVI DJIDJO MALM,

                                              Petitioner - Appellant,

           versus


ALBERTO R. GONZALES, Attorney General,

                                               Respondent - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CA-
01-3159-CCB)


Argued:   May 24, 2005                     Decided:   October 12, 2005


Before WILLIAMS, KING, and GREGORY, Circuit Judges.


Petition for review denied by unpublished per curiam opinion.


ARGUED: Morton Harvey Sklar, Executive Director, WORLD ORGANIZATION
FOR HUMAN RIGHTS USA, Washington, D.C., for Appellant. Ernesto
Horacio Molina, II, Senior Litigation Counsel, UNITED STATES
DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration
Litigation, Washington, D.C., for Appellee.      ON BRIEF: Matthew
Packer, Legal Intern, Severina Rivera, Volunteer Attorney, Sapna
Lalmalani, Legal Intern, WORLD ORGANIZATION FOR HUMAN RIGHTS USA,
Washington, D.C., for Appellant.      Peter D. Keisler, Assistant
Attorney General, David V. Bernal, Assistant Director, UNITED
STATES DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration
Litigation, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
PER CURIAM:

      Ablavi Gloria Malm appeals the denial of her 28 U.S.C.A. §

2241 (West 1994) petition by the district court, arguing that the

Convention Against Torture (CAT) and its implementing statutes do

not permit limitations on the time within which to file claims and

that her due process rights were violated during her removal

hearings.     We treat Malm’s appeal as a petition for review of her

final order of deportation and deny the petition because collateral

estoppel bars Malm from relitigating these issues.



                                   I.

      Malm is a native and citizen of Togo who entered the United

States on October 29, 1994, on a visitor’s visa.                Malm applied for

asylum on October 20, 1997, alleging that she had been raped and

tortured in Togo by government officials.                Malm’s asylum hearing

was scheduled for April 15, 1998, but she did not appear.                      The

hearing was held in absentia, and Malm was ordered removed.                   Malm

filed a motion to reopen on July 24, 1998, alleging that she did

not receive notice of the hearing because a paralegal that was

assisting her with the case did not inform the Immigration Judge

(IJ) that Malm had moved.      On September 10, 1998, the IJ denied the

motion to reopen, finding that notice of the hearing had been sent

to   Malm’s   last   known   address,       and   that   Malm   failed   to   show

extraordinary circumstances justifying her failure to appear.                  The


                                        3
IJ also noted that Malm’s motion to reopen was filed more than 90

days after the removal order and therefore was out of time.

     Malm filed an appeal with the Board of Immigration Appeals

(BIA), alleging that ineffective assistance of counsel caused her

failure to appear.   Malm’s appeal was denied on February 7, 2000,

with the BIA concluding that Malm could not satisfy the ineffective

assistance of counsel standards announced in Matter of Lozada, 19

I. & N. Dec. 637 (BIA 1988), because Malm’s representative was

neither an attorney nor authorized to appear before the BIA.   Malm

then filed with this court a petition for review which we dismissed

as untimely.

     On May 26, 2000, Malm filed a second motion to reopen with the

BIA, requesting asylum and relief under CAT.      On September 28,

2000, the BIA denied this motion under 8 C.F.R. § 3.2(c)(2) (2000),

which provided that a party may file only one motion to reopen

absent changed circumstances.1   The BIA also found that the motion

to reopen was untimely under § 3.2(c)(2), which requires any motion

to reopen be filed within 90 days of the final administrative

decision.

     Malm filed a timely petition for review in this court from the

denial of her second motion to reopen.   Oral argument was held, and

we affirmed the BIA’s decision by unpublished opinion.      Malm v.



     1
      This section has been recodified without substantive change
at 8 C.F.R. § 1003.2(c)(2) (2005).

                                 4
Ashcroft, 2001 U.S. App. LEXIS 18178 (4th Cir. August 10, 2001).

Before   this   court,    Malm    argued    that   she    was   not   given    an

opportunity to present her claims for asylum and that § 3.2(c)(2)

violated CAT and its implementing statutes.                 Article 3 of CAT

provides that “no State Party shall expel, return (‘refouler’) or

extradite a person to another State where there are substantial

grounds for believing that he would be in danger of being subjected

to torture.”     The United States is a signatory party to CAT, and

implemented     Article   3      in   the   Foreign      Affairs   Reform     and

Restructuring Act of 1998 § 2242(d) (FARRA), 8 U.S.C.A. § 1231

(West 1999).    Malm argued that because CAT “prohibits a return to

torture under any circumstance . . . the time and numerical

limitations of the INS administrative regulations cannot be relied

upon to deny at least one full and fair opportunity to have a CAT

claim properly considered.”           Malm, 2001 U.S. App. LEXIS 18178 at

**5.

       Although we noted that “Malm raises troubling allegations of

abuse and violence,” we affirmed the BIA’s denial of her second

motion to reopen.         Id. at **4.         First, we found that “her

procedural predicament was caused by her own failure to timely

pursue relief.”    Id. at **6.         Thus, we concluded that Malm had a

fair opportunity to pursue relief under CAT, and simply “repeatedly

missed available opportunities” to do so.             Id. at **9-10.   We then




                                        5
found that neither CAT nor FARRA precluded the INS from adopting

reasonable time limitations on raising CAT claims.             Id. at **11.

     On October 22, 2001, Malm filed a petition for writ of habeas

corpus pursuant to § 2241 in the United States District Court for

the District of Maryland.      Malm contended that § 3.2(c)(2), the

limitation on filing more than one motion to reopen, as applied in

her case, violated CAT and FARRA, which she alleged include no time

limitations on the obligations of State parties to retain persons

in jeopardy of being tortured, and that it also violated her due

process rights to have her CAT claim heard.               The district court

denied Malm’s § 2241 petition.   The district court first concluded

that it did not have subject matter jurisdiction over the petition

because Malm had alternate judicial forums in which to raise her

claims.2   In   the   alternative,       the   district   court   found   that

collateral estoppel barred Malm’s claims.          The district court also

found that, even assuming collateral estoppel did not apply, Malm’s

claims were without merit.     Malm filed a timely appeal of that

order.

     Shortly before oral argument in this case, however, Congress

enacted the REAL ID Act of 2005 § 106, Pub. L. No. 109-13, 119


     2
      At the time of the district court’s order, this legal
conclusion was likely erroneous. See INS v. St. Cyr, 533 U.S. 289,
314 (2001) (noting    “habeas jurisdiction under § 2241 was not
repealed by AEDPA and IIRIRIA.”); see also Riley v. INS, 310 F.3d
1253 (10th Cir. 2002) (holding § 2241 petitions remain available
for non-criminal aliens); Liu v. INS, 293 F.3d 36 (2d Cir. 2002)
(same); Chmakov v. Blackman, 266 F.3d 210 (3d Cir. 2001) (same).

                                     6
Stat. 231, 310-311 (May 11, 2005) (to be codified as amendments and

notes to 8 U.S.C.A. § 1252).3               The REAL ID Act provides that

petitions for review in circuit courts are to be the exclusive

means    of   judicial    review   in   the   immigration    context,     and   it

expressly     states     that   district    courts   shall   not   have   habeas

jurisdiction.     Id. at § 106(a)(1)(A)(iii).         The Act applies to any

“final administrative order of removal, deportation, or exclusion

. . . issued before, on, or after the date of enactment of this

division.”     Id. at § 106(b).     The Act also provides that any § 2241

petition currently pending in the district courts be transferred to

the proper court of appeals and treated as a petition for review.

Id. at § 106(c).         Although review of the denial of Malm’s § 2241

petition was actually pending before us at the time of enactment,

the parties agree that we may, under the transfer provisions of the

Act, treat Malm’s action as a petition for review. Accordingly, we

will treat Malm’s action as a petition for review of her final

order of removal.          We deny the petition, however, because of

collateral estoppel.



                                        II.

         Collateral estoppel, or issue preclusion, bars subsequent

litigation of legal and factual issues common to an earlier action


     3
      Upon our request at oral argument, the parties provided
supplemental briefing on the potential impact of the REAL ID Act on
this case.

                                        7
that were “actually and necessarily determined” in the first

litigation. Montana v. United States, 440 U.S. 147, 153 (1979);

Combs v. Richardson, 838 F.2d 112, 114 (4th Cir. 1988). Thus,

“[c]ollateral estoppel forecloses the relitigation of issues of

fact or law that are identical to issues which have been actually

determined and necessarily decided in prior litigation in which the

party against whom [collateral estoppel] is asserted had a full and

fair opportunity to litigate.”   Sedlack v. Braswell Servs. Group,

Inc., 134 F.3d 219, 224 (4th Cir.    1998) (internal quotation marks

omitted). To apply collateral estoppel or issue preclusion to an

issue or fact, the proponent must demonstrate that (1) the issue or

fact is identical to the one previously litigated; (2) the issue or

fact was actually resolved in the prior proceeding; (3) the issue

or fact was critical and necessary to the judgment in the prior

proceeding; (4) the judgment in the prior proceeding is final and

valid; and (5) the party to be foreclosed by the prior resolution

of the issue or fact had a full and fair opportunity to litigate

the issue or fact in the prior proceeding. See id.

     A related doctrine is that of claim preclusion, also referred

to as res judicata.    Claim preclusion provides that if a claim

arises from the same cause of action as a claim already litigated,

then the judgment in the first action bars litigation of the second

claim.   See Nevada v. United States, 463 U.S. 110, 129-30 (1983).

Thus, “[a] final judgment on the merits of an action precludes the


                                 8
parties or their privies from relitigating issues that were or

could have been raised in that action.”         Federated Dep't Stores,

Inc. v. Moitie, 452 U.S. 394, 398 (1981).          For claim preclusion to

apply, there must be: (1) a final judgment on the merits in a prior

suit; (2) an identity of the cause of action in both the earlier

and the later suit; and (3) an identity of parties or their privies

in the two suits. See Nash County Bd. of Educ. v. Biltmore Co., 640

F.2d 484, 486 (4th Cir. 1981).

      With this framework in place, we turn to Malm’s claims.

Malm’s first contention - that § 3.2(c)(2), the regulation limiting

the ability to file more than one motion to reopen, violates both

CAT and FARRA – is clearly barred by collateral estoppel.                 This

claim is an exact reproduction of her argument before this court in

her initial petition for review.

      Malm makes two arguments to counter this conclusion, both of

which lack merit. First, Malm contends that our discussion of this

claim in the earlier case was dicta.        She garners support for this

contention from the following sentence: “Further, we note that in

passing a resolution of ratification, the United States Senate

specifically stated that articles one through sixteen of CAT are

not   self-executing.”      Malm,    2001   U.S.    App.   LEXIS   at   **11.

According to Malm, the phrase “in passing” is an indication that

this portion of the opinion is dicta. This argument misunderstands

the   grammatical   structure   of   the   sentence   --   the   phrase   “in


                                     9
passing” refers to the Senate’s adoption of the CAT and does not

signal that the analysis is dicta.

     Next, Malm argues that we lacked the ability to consider

statutory claims in her initial petition for review because our

task is to review BIA orders and the BIA lacks the ability to

consider those claims.      Again, this argument is without merit; we

frequently    address    statutory    and   constitutional   arguments    in

petitions for review that are beyond the BIA’s scope of review.

See, e.g., Blanco de Belbruno v. Ashcroft, 362 F.3d 272 (4th Cir.

2004) (addressing statutory and constitutional challenges to BIA’s

streamlining procedure).         And, in fact, we did carefully consider

Malm’s statutory argument in the prior petition for review.              See

Malm, 2001 U.S. App. LEXIS at **10-14.

     Malm’s second claim in her current action is that her due

process rights were violated because she was not permitted to

present her claims under the CAT.          Our earlier opinion contains no

direct mention of “due process,” but we did iterate that Malm’s

first argument was “that she was not given an opportunity to pursue

her claim.”        Id. at **7.    We rejected this argument by finding

“Malm repeatedly missed available opportunities to pursue her

claims.”     Id.    at **9-10.    Although this quoted portion from the

opinion does not explicitly use the term “due process,” it is clear

that due process was the basis for the argument Malm was pressing

before this court, and that our resolution of the issue was based


                                      10
upon       the   fact   that   Malm   received   the   process   she   was   due.

Moreover, even assuming that collateral estoppel does not bar this

claim, because the argument that Malm’s due process rights were

violated stems from the same cause of action as her statutory and

treaty-based contentions, it would be barred by claim preclusion.



                                        III.

       In sum, we treat Malm’s appeal as a petition for review, and

deny that petition for review as barred by collateral estoppel.4



                                                  PETITION FOR REVIEW DENIED




       4
      We do note, in passing, that Malm has raised several
constitutional challenges to the REAL ID Act in her supplemental
briefing. Because Malm is a non-criminal alien who already has had
a full opportunity to litigate her claims in an earlier proceeding,
her case does not require us to delve into any sticky
constitutional issues. We by no means suggest, however, that the
REAL ID Act is constitutional in all of its applications by
referring to its enactment in the context of deciding this case.

                                         11
