     Case: 09-60881     Document: 00511234262          Page: 1    Date Filed: 09/15/2010




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

                                                 FILED
                                                                        September 15, 2010
                                     No. 09-60881
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

SERGIO MAURICIO DIAZ DE LEON-MUNOZ,

                                                   Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                   Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A036 999 192


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Sergio Mauricio Diaz De Leon-Munoz is a native and citizen of Mexico who
entered this country in 1981 and was convicted of aiding and abetting the
transportation of undocumented aliens within the United States in 1983. In
1984, the former INS issued an Order to Show Cause charging that Diaz De
Leon-Munoz was deportable because he had, within five years of entering this
country and for gain, aided and abetted another alien’s illegal entry into the
United States. These proceedings were terminated that same year. In 2007 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-60881   Document: 00511234262 Page: 2        Date Filed: 09/15/2010
                                No. 09-60881

Department of Homeland Security issued a Notice to Appear charging that Diaz
De Leon-Munoz was deportable because his 1983 conviction was considered an
aggravated felony for immigration purposes. An immigration judge concluded
that Diaz De Leon-Munoz was removable on this basis, and the Bureau of
Immigration Appeals (BIA) dismissed his appeal.
      This court is now presented with Diaz De Leon-Munoz’s petition for
review. Consistent with his arguments to the BIA, he contends that res judicata
bars the instant removal proceedings because they are based on the same
conviction as the prior, terminated proceedings. Although we are generally
precluded from reviewing removal orders when such orders are grounded in a
conclusion that an alien should be deported from this country due to his
commission of an aggravated felony, we have jurisdiction to review this legal
issue. See 8 U.S.C. § 1252(a)(2)(D); Andrade v. Gonzales, 459 F.3d 538, 542, 544
(5th Cir. 2006); Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th
Cir. 2005). Diaz De Leon-Munoz’s res judicata argument “lacks merit” because
“the current removal proceeding pending against [him] is based on a wholly
separate provision” than the prior removal proceeding. See Peters v. Ashcroft,
383 F.3d 302, 305 n.2 (5th Cir. 2004). His petition for review is DENIED.




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