                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                 January 5, 2006
                       FOR THE FIFTH CIRCUIT
                                                             Charles R. Fulbruge III
                      ))))))))))))))))))))))))))                     Clerk
                            No. 05-20519
                          Summary Calendar
                      ))))))))))))))))))))))))))

COURTNEY ANTHONY DONALDSON,

                                                   Plaintiff-Appellant,

versus

HIPOLITO M. ACOSTA, ET AL.,

                                                   Defendants-Appellees.




           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. 4:04-CV-911




Before SMITH, GARZA, AND PRADO, Circuit Judges.

PER CURIAM:*

I.   BACKGROUND

     Petitioner-Appellant Courtney Anthony Donaldson, a thirty-five

year-old citizen of Jamaica, entered the United States as a resident

alien on September 20, 1984, at the age of fourteen.         On April 20,

1989, Donaldson was indicted for possession of between five and

fifty pounds of marijuana in Chambers County, Texas.              The jury



     *
      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this opinion should not be published and is not precedent except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.
returned a verdict of guilty on November 13, 1990.          On January 9,

1991, the court granted Appellant deferred adjudication, placing him

on probation for ten years. Donaldson was discharged from probation

on August 17, 1994.

     On January 21, 1997, Appellant filed his first application for

naturalization.     An immigration agent, however, determined that

Donaldson’s conviction both disqualified him from admission to

citizenship and made him subject to removal from the United States

as an alien convicted of a controlled substance offense.          Appellant

received a Notice to Appear, which placed him in removal proceedings

based on his prior conviction.          The Notice to Appear was later

amended to add as an additional ground for removal that his

conviction was also an aggravated felony which occurred after

November 29, 1990.

     While    Donaldson   sought   to    have   the   removal   proceedings

terminated pursuant to 8 C.F.R. § 239.2(f)1 in order to pursue his


     1
         Title 8 C.F.R. § 239.2(f) provided:
                  Termination of removal proceedings by
                  immigration judge.   An immigration
                  judge may terminate removal proceedings
                  to permit the alien to proceed to a
                  final hearing on a pending application
                  or petition for naturalization when the
                  alien has established prima facie
                  eligibility for naturalization and the
                  matter involves exceptionally appealing
                  or humanitarian factors; in every other
                  case, the removal hearing shall be
                  completed as promptly as possible
                  notwithstanding the pendency of an
                  application for naturalization during

                                   -2-
request for immediate naturalization, the Immigration Naturalization

Service (“INS”) opposed the motion.          The INS argued that Appellant

was unable to demonstrate prima facie eligibility for naturalization

under 8 C.F.R. § 239.2(f) because his conviction rendered him unable

to satisfy the requisite “good moral character” requirement defined

by 8 C.F.R. § 316.10(b)(1)(ii).2        In addition, the government moved

to pretermit Donaldson’s application for a waiver pursuant to former

section 212(c) of the Immigration and Nationality Act (“INA”).3

     On   April   24,   2002,    the    immigration   judge   (“IJ”)     denied

Appellant’s motion to terminate the removal proceedings, finding

that Donaldson had failed to establish prima facie eligibility for

naturalization    because   of    his    conviction   that    occurred    after

November 29, 1990.       The IJ denied the government’s motion to

pretermit, and later granted Donaldson’s application for relief

under section 212(c) of the INA, which allowed Appellant to remain




               any state of the proceedings.
8 C.F.R. § 239.2(f)(2001). Title 8 C.F.R. § 239.2(f) is now
codified without substantive change at 8 C.F.R. § 1239.2(f).
     2
      8 C.F.R. § 316.10(b)(1)(ii) provides that “[a]n applicant
shall be found to lack good moral character, if the applicant has
been...[c]onvicted of an aggravated felony as defined in section
101(a)(43) [codified at 8 C.F.R. § 1101(a)(43)] of the Act on or
after November 29, 1990.”
     3
      Before the effective dates of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) and the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), section 212(c) of the Immigration and Nationality Act
of 1952 was interpreted to give the Attorney General broad
discretion to waive deportation of resident aliens.

                                       -3-
in the United States as a legal resident.     Although both parties

initially reserved their rights to appeal, they formally agreed that

if Donaldson withdrew his appeal of the determination that he was

convicted of a disqualifying felony, the government would not appeal

the grant of section 212(c) discretionary relief.

     On November 26, 2001, Donaldson filed a second application for

naturalization. On February 8, 2003, however, the examining officer

denied Donaldson’s application for citizenship because his January

9, 1991 conviction rendered him ineligible for naturalization.

After Appellant exhausted his administrative remedies, he appealed

the denial of his application for naturalization to the district

court.    Donaldson filed a motion for summary judgment on September

16, 2004. Respondent-Appellee opposed Donaldson’s motion and filed

a cross-motion for summary judgment.   The magistrate judge, sitting

by agreement of the parties, granted Respondent-Appellee’s cross-

motion for summary judgment.      The Court held that res judicata

barred Appellant from relitigating the IJ’s 2002 finding that

Donaldson had failed to establish prima facie eligibility for

naturalization because of his 1991 conviction.    Additionally, the

court found that even if res judicata were not applicable, a de novo

review of Donaldson’s naturalization petition would lead to the same

result.     Petitioner-Appellant now seeks review of the district

court’s granting of Respondent-Appellee’s Cross-Motion for Summary

Judgment.



                                 -4-
II.   STANDARD OF REVIEW

      We review a district court's grant of summary judgment de novo,

applying the same standard as the district court.               Shepherd v.

Comptroller of Pub. Accounts, 168 F.3d 871, 873 (5th Cir. 1999).

      Pursuant to Federal Rule of Civil Procedure 56(c), summary

judgment is proper when the “pleadings, depositions, answers to

interrogatories,     and   admissions      on   file,   together   with   the

affidavits, if any, show that there is no genuine issue of material

fact and that the moving party is entitled to judgment as a matter

of law.”   FED. R. CIV. P. 56(c);       Celotex Corp. v. Catrett, 477 U.S.

317, 322–23 (1986);     Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251–52 (1986).      When making its determination, the court must draw

all   justifiable    inferences    in   favor   of   the   nonmoving   party.

Anderson, 477 U.S. at 255;        Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587-88 (1986); Bodenheimer v. PPG Indus.,

Inc., 5 F.3d 955, 956 (5th Cir. 1993).

      To defeat a properly supported motion for summary judgment, the

non-movant must present more than a mere scintilla of evidence.

Anderson, 477 U.S. at 251.        Rather, a factual dispute precludes a

grant of summary judgment if the evidence would permit a reasonable

jury to return a verdict for the nonmoving party.              See Merritt-

Campbell, Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th Cir.

1999).



                                     -5-
III. DISCUSSION

      Appellant makes three claims.         First, Donaldson asserts that

res judicata does not bar his claims because the IJ lacked the

statutory     authority    to   determine   prima   facie    eligibility    for

naturalization.      Second, he contends that his conviction is not

valid due to a legal error on the part of the state judge.            Lastly,

he maintains that even if his conviction is deemed valid, the date

of his conviction should be November 3, 1990. We will consider each

claim in turn.

      A.     Res Judicata Bars Appellant’s Claims

      The district court properly determined that res judicata

precludes Appellant from relitigating the IJ’s 2002 finding that

Donaldson had failed to establish prima facie eligibility for

naturalization because of his 1991 conviction.              Appellant argues,

however, that res judicata does not bar his claims because the IJ

lacked the statutory authority to determine prima facie eligibility

for naturalization. Specifically, Donaldson asserts that while the

IJ   had    jurisdiction   over   whether   “exceptionally      appealing   or

humanitarian factors”4 were involved in the case, a finding of prima

facie eligibility for naturalization must be made by the United

States Citizenship and Immigration Services. Accordingly, Appellant

maintains that because Congress specifically mandated authority over

naturalization exclusively to the Department of Homeland Security


      4
          See 8 C.F.R. § 239.2(f), supra.

                                     -6-
(formerly the INS), the issue of prima facie eligibility for

naturalization was never properly before the IJ.                        See 8 U.S.C. §§

1446(b)&(d). Stated another way, Appellant argues that although the

immigration judge decided the issue, because he did not have

jurisdiction over the issue, res judicata does not bar Appellant

from litigating the issue here.

       The   canon    of    res     judicata      encompasses     two    separate,    but

interrelated doctrines: 1) true res judicata or claim preclusion;

and 2) collateral estoppel or issue preclusion.                    Test Masters Educ.

Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005).                           While

claim preclusion “bars the litigation of claims that either have

been    litigated      or        should   have     been   raised        in   an   earlier

suit,...[c]ollateral estoppel precludes a party from litigating an

issue already raised in an earlier action between the same parties

only if:     (1) the issue at stake is identical to the one involved

in the earlier action;            (2) the issue was actually litigated in the

prior action;        and (3) the determination of the issue in the prior

action was a necessary part of the judgment in that action.”                         Id.

at 571, 572.

       Here, Appellant is collaterally estopped from relitigating the

issue of whether he is prima facie eligible for naturalization.

Pursuant to 8 C.F.R. § 239.2(f), the IJ, properly found that

Appellant     failed        to     establish      prima   facie     eligibility      for

naturalization        because       he    failed    to    submit    the      affirmative


                                            -7-
communication from the INS supporting his eligibility. In fact, the

Service opposed Donaldson’s request for naturalization.   The issue

presently at stake is identical to the one decided by the IJ in

2002. Moreover, the issue was properly before the IJ because it was

integral to the determination of whether the IJ could terminate

removal proceedings.    Hence, the district court properly granted

Respondent-Appellee’s Cross-Motion for Summary Judgment because the

doctrine   of   collateral   estoppel   precluded   Donaldson   from

relitigating the IJ’s 2002 finding that Appellant had failed to

establish prima facie eligibility for naturalization because of his

1991 conviction.

     B.    Appellant’s Conviction Is Valid

     Next, Donaldson claims that his conviction is not valid due to

a legal error on the part of the state judge. Appellant argues that

because he was convicted by a jury for possession of marijuana but

did not plead guilty to the charge, the state judge, in violation

of Texas law, offered him deferred adjudication.5

     First, we do not allow the review of immigration proceedings

to be used as a forum for attacks on related convictions.        See

Zinnanti v. INS, 930 F.2d 432, 434-35 (5th Cir. 1991).          More


     5
       Section 5(a) of article 42.12 of the Texas Code of Criminal
Procedure provides that a “judge may, after receiving a plea of
guilty or plea of nolo contendere, hearing the evidence, and
finding that it substantiates the defendant's guilt, defer
further proceedings without entering an adjudication of guilt,
and place the defendant on community supervision.” TEX. CODE CRIM.
PROC. ANN. art. 42.12 §5(a)(emphasis added).

                                -8-
importantly, federal law, not state law, determines whether or not

Appellant has been “convicted” for purposes of the INA.               See Moosa

v. INS, 171 F.3d 994, 1006 (5th Cir. 1999); Yazdchi v. INS, 878 F.2d

166,       167   (5th    Cir.   1989).   Congress    added   a   definition   of

“conviction” to the INA in Section 322(a) of the Illegal Immigration

Reform      and   Immigrant      Responsibility   Act   of   1996   (“IIRIRA”).6

Section 322(a) states:

                        The term “conviction” means, with respect
                        to an alien, a formal judgment of guilt
                        of the alien entered by the court or, if
                        adjudication of guilt has been withheld,
                        where--
                        (i) a judge or jury has found the alien
                        guilty or the alien has entered a plea of
                        guilty or nolo contendere or has admitted
                        sufficient facts to warrant a finding of
                        guilt, and
                        (ii) the judge has ordered some form of
                        punishment, penalty, or restraint on the
                        alien's liberty to be imposed.


8 U.S.C. § 1101(a)(48).

       Our case law provides that deferred adjudications in Texas are

“convictions” for immigration purposes.             Moosa v. INS, 171 F.3d at

1006.       Moreover, the two elements of section 322(a) have been met:

a jury found Donaldson guilty and Appellant was sentenced to a ten-




       6
      The definition is codified at 8 U.S.C. § 1101(a)(48).                The
definition applies retroactively to deferred adjudications
entered prior to IIRIRA’s enactment. Madriz-Alvarado v.
Ashcroft, 383 F.3d 321, 334 (5th Cir. 2004).

                                         -9-
year term of deferred adjudication probation.7

      C.   Appellant was convicted on January 9, 1991

      Because both of the statutory requirements were not met until

January 9, 1991, this court agrees with the district court that

Appellant was not officially convicted under the terms of section

322(a) until January 9, 1991.   Consequently, this Court concludes

that Appellant’s disqualifying conviction renders him unable to

demonstrate the requisite “good moral character” necessary for

naturalization. Hence, the district court properly granted summary

judgment for the Respondent-Appellee.

IV.   CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s

granting of Respondent-Appellee’s Cross-Motion for Summary Judgment.

      AFFIRMED.




      7
      A fixed term of probation constitutes punishment. See
Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 640 n.11 (1988).

                                -10-
