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


2-7-2006

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Precedential or Non-Precedential: Precedential

Docket No. 04-4412




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                                          PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                        No. 04-4412


             ANDREA PATRICIA DUVALL,
              (Nee Andrea Patricia Phillips)

                             Petitioner

                              v.

   ATTORNEY GENERAL OF THE UNITED STATES,*

                             Respondent


          Initially docketed as an Appeal from the
                  United States District Court
           for the Eastern District of Pennsylvania
                   (D.C. No. 04-cv-03483)
       District Judge: Honorable Michael M. Baylson


      *
        Because we have converted the present appeal into a
petition for direct review, we are required to substitute the
Attorney General for the respondent (William F. Riley, Jr.,
District Director, Bureau of Immigration Customs
Enforcement). 8 U.S.C. § 1252(b)(3)(A).
        Converted to a Petition for Review from the
             Board of Immigration Appeals
           Pursuant to the Real ID Act of 2005
                (Board No. A 71 041 214)
            Immigration Judge Walt Durling


                Argued December 7, 2005
             Before: RENDELL, FISHER and
              GREENBERG, Circuit Judges.

                  (Filed: February 7, 2006)

Anthony A. Yang (Argued)
United States Department of Justice
Appellate Section
950 Pennsylvania Avenue, N.W.
Room 7248
Washington, DC 20530

Robert M. Loeb
United States Department of Justice
Civil Division, Appellate Staff
601 D Street, N.W.
Room 9149
Washington, DC 20530
       Attorneys for Respondent




                             2
Derek W. Gray (Argued)
Steel, Rudnick & Ruben
1608 Walnut Street, Suite 1500
Philadelphia, PA 19103
       Attorney for Petitioner




                 OPINION OF THE COURT


FISHER, Circuit Judge.

       We must decide in this case whether a litigation error by
the Immigration and Naturalization Service, resulting in an
adverse determination on the issue of alienage during
deportation proceedings, precludes the government from
thereafter seeking to remove the alien based on subsequent
criminal acts. We conclude that it does not.

                               I.

                               A.

       Andrea Patricia Duvall is a native and citizen of Jamaica.
She entered this country on a valid tourist visa in 1987, as a
“visitor for pleasure.” She later married a United States citizen
and applied for adjustment of status to lawful permanent
resident. Her request was granted, and she became a permanent
resident in 1993.


                               3
        Her days in this country were not all tourism and
romance, however. Between 1987 and 1993, Duvall committed
a series of retail thefts and petty larcenies in New Jersey, New
York, and Pennsylvania. These transgressions resulted in
numerous arrests and eleven convictions by state authorities.

       Soon thereafter, the INS initiated deportation proceedings
against Duvall. She was charged as an alien subject to
deportation based on convictions of crimes involving moral
turpitude, 8 U.S.C. § 1227(a)(2)(A)(ii). A hearing was held
before an immigration judge on November 16, 1993.

        The sole witness called by the INS was Duvall. Counsel
for the government asked her to confirm her place of birth and
citizenship. She refused. She asserted a privilege against self-
incrimination under the Fifth Amendment and would neither
confirm nor deny any of the allegations in the order to show
cause.1

       The INS was caught off guard by this maneuver.
Counsel sought to introduce into evidence Duvall’s application
for adjustment of status, in which she admitted to being a native
and citizen of Jamaica; however, the document was ruled
inadmissible for noncompliance with local rules requiring
submission of evidence at least ten days before the hearing. The
INS had no other means by which to prove Duvall’s alienage,


       1
         Duvall argued that the answers to these questions would
expose false statements in her application for adjustment of
status, providing grounds for criminal prosecution.

                               4
and rested its case. Predictably, the immigration judge found
that there was not “clear, unequivocal, and convincing
evidence” to establish alienage. He accordingly terminated the
proceedings.

       The INS sought review of the decision by the Board of
Immigration Appeals, but subsequently withdrew the appeal, for
reasons that are not explained in the record. The decision of the
immigration judge, terminating the proceedings, remains the
dispositive order in the case.

                               B.

       The brush with deportation did not deter Duvall. She
continued her criminal exploits and was convicted twice, in
1995 and 2001, of felony retail theft under Pennsylvania law.
While incarcerated, Duvall was interviewed by an INS official.
She admitted in a sworn statement that she was a citizen of
Jamaica and an alien in this country.

        Within days of this admission, the INS again initiated
deportation proceedings against Duvall. She was charged, based
on her encounters with law enforcement in 1995 and 2001, as an
alien subject to removal for convictions of an aggravated felony,
8 U.S.C. § 1227(a)(2)(A)(iii), and crimes involving moral
turpitude, 8 U.S.C. § 1227(a)(2)(A)(ii).

       Removal proceedings were terminated in June 2001. The
presiding immigration judge, on motion of Duvall’s counsel,
held that the INS was collaterally estopped from relitigating the
issue of alienage because it had enjoyed a full and fair

                               5
opportunity to litigate the matter in the 1993 proceedings. The
INS, the judge held, was bound by the prior determination that
there was insufficient evidence to establish Duvall’s alienage.

       The Board of Immigration Appeals reversed. It held that
collateral estoppel should be applied “more flexibly” in the
immigration context and that several factors militated against
imposing a bar to relitigation in these circumstances. First, the
INS had been prevented in the prior proceedings – albeit as a
result of its own failure to comply with local rules – from
introducing evidence of alienage. Second, the burden of proof
on the INS had changed between the first and second
proceedings: from “clear, unequivocal and convincing”
evidence to “clear and convincing” evidence.2 Finally, the
Board determined that application of the doctrine in this case,
where the alien had committed additional deportable offenses
following initial removal proceedings, would contravene
congressional intent.




       2
        The Board did not explain the difference between these
standards, but simply stated that the new standard was a lesser
burden.

                               6
       On remand, the immigration judge allowed the INS 3 to
present evidence of Duvall’s alienage and found, by clear and
convincing evidence, that Duvall was an alien subject to
removal based on her 1995 and 2001 convictions. The order of
removal was later affirmed by the Board.

                               C.

       Duvall then filed a petition for writ of habeas corpus in
the District Court for the Eastern District of Pennsylvania.4 She
renewed her argument that, under common law principles of
collateral estoppel, the INS was precluded from relitigating the
issue of alienage.




       3
         On March 1, 2003, after the Board had remanded the
case to the immigration judge, the INS ceased to exist and its
interior enforcement functions were transferred to the Bureau of
Immigration and Customs Enforcement (“BICE”), within the
Department of Homeland Security. See Homeland Security Act,
Pub. L. No. 107-296, § 441, 116 Stat. 2135, 2192 (2002). For
purposes of this discussion, the BICE will be referred to as the
INS.
       4
       Duvall had previously filed a petition for writ of habeas
corpus, after the Board had remanded the case to the
immigration judge. That petition was eventually dismissed for
lack of jurisdiction because Duvall had not yet exhausted
administrative remedies. Duvall v. Elwood, 336 F.3d 228, 229-
34 (3d Cir. 2003).

                               7
        The District Court agreed. It held that the government’s
failure to satisfy its burden of proof on alienage during the 1993
proceedings collaterally estopped it from raising the issue again.
The District Court concluded that, “although . . . it [is]
manifestly unfair to the government to be foreclosed from
proving [Duvall’s] alienage, the issue of fairness is not
determinative on the doc[tr]ine of collateral estoppel.” A writ
of habeas corpus was granted in September 2004.

       This timely appeal followed.

                               II.

       The threshold issue is the nature of our jurisdiction.
When the District Court issued its decision, a challenge to an
order of removal could be raised in a petition for writ of habeas
corpus under 28 U.S.C. § 2241. See INS v. St. Cyr, 533 U.S.
289, 292 (2001). This is no longer the case. The Real ID Act of
2005, Pub. L. No. 109-13, 119 Stat. 231, enacted while this
appeal was pending, divests district courts of jurisdiction over
these matters. Id. § 106. The sole means by which an alien may
now challenge an order of removal is through a petition for
review directed to the court of appeals. See Jordon v. Attorney
General, 424 F.3d 320, 326-28 (3d Cir. 2005).

       A petition for writ of habeas corpus challenging an order
of removal, pending on the date of the Act’s enactment, is to be
converted to a petition for review and transferred to the
appropriate court of appeals. Real ID Act § 106(c). We held in
Bonhometre v. Gonzales, 414 F.3d 442 (3d Cir. 2005), that,
despite the absence of express statutory guidance, a similar

                                8
practice should govern pending appeals involving district court
decisions granting habeas relief from an order of removal. Id.
at 446.

       We follow this approach here. The notice of appeal will
be converted to a petition for review, see id., the Attorney
General will be substituted as the respondent in this case, see 8
U.S.C. § 1252(b)(3)(A), and the decision of the District Court,
now rendered a nullity, will be vacated, see Jordon, 424 F.3d at
326-28. We have jurisdiction to consider the decision of the
Board of Immigration Appeals under 8 U.S.C. § 1252(b)(2), and
exercise plenary review over questions of law, with due
deference to the agency’s interpretation of the Immigration and
Naturalization Act (INA). Jordon, 424 F.3d at 326-28; see also
Kamara v. Attorney General, 420 F.3d 202, 211 (3d Cir. 2005).

                               III.

       Turning to the merits, the sole substantive question in this
appeal is whether the doctrine of collateral estoppel bars the INS
from relitigating the issue of alienage against Duvall. There are
two aspects to the inquiry. The first is whether the agency is
required to apply the doctrine imprimis. The second is, if so,
how the doctrine should be applied in this case.

                                A.

       It is not the prerogative of the federal courts to impose
upon administrative agencies procedural doctrines or rules of
decision, whatever their historical pedigree. Astoria Fed. Sav.
& Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991); Vt. Yankee

                                9
Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435
U.S. 519, 524-25, 542 (1978). Congress has discretion, based
on its own weighing of policy goals, to prescribe the procedures
by which an agency will perform its work and render decisions.
Astoria, 501 U.S. at 108. The only constraint on this authority
is the Constitution, embodied primarily in the requirement of
“due process.” See id.; see also Landon v. Plasencia, 459 U.S.
21, 34-35 (1982).

       Collateral estoppel is not constitutionally mandated, see
Astoria, 501 U.S. at 108, and, as such, the question of whether
an agency must apply the doctrine is to be answered by
reference to the enabling statute.5 Only if Congress required the
agency to apply collateral estoppel may the federal courts
enforce that obligation. See id.

       A cursory review of the INA shows that the doctrine is
not explicitly prescribed. Nowhere does the Act use the phrase
“collateral estoppel,” “res judicata,” “issue preclusion,” or
“claim preclusion,” and nowhere does the Act expressly bar the
agency from relitigating issues previously decided.



       5
       Substantive due process may offer some protection
against repeated relitigation of the same issue by an
administrative agency. E.g., Babcock & Wilcox Co. v. Marshall,
610 F.2d 1128, 1138 & n.34 (3d Cir. 1979). This case, in which
the two proceedings were separated by seven years and were
based on distinct criminal acts, does not implicate these
concerns. See id.

                               10
       But the absence of discussion cannot be viewed as
dispositive. Congress is expected to legislate against the
backdrop of well-established common law principles. Id. at
108-11. An accepted common law doctrine should be implied
in a statutory scheme, despite the absence of express
authorization, if application of the doctrine is consistent with the
structure and purpose of that scheme. Id.

        Collateral estoppel has been recognized by the Supreme
Court as one of these well-established common law principles.
Id. at 107-08 (citing Parklane Hosiery Co. v. Shore, 439 U.S.
322, 326 (1979)). It has long been employed as a means of
ensuring repose. Id.

       Such repose is justified on the sound and obvious
       principle . . . that a losing litigant deserves no
       rematch after a defeat fairly suffered, in
       adversarial proceedings, on an issue identical in
       substance to the one he subsequently seeks to
       raise. To hold otherwise would, as a general
       matter, impose unjustifiably upon those who have
       already shouldered their burdens, and drain the
       resources of an adjudicatory system with disputes
       resisting resolution.

Id. Congress may be presumed, when enacting a statute
granting to an agency adjudicatory authority, to mandate
adherence to the doctrine of collateral estoppel. Id.

       The INA grants adjudicatory authority to immigration
judges and the Board of Immigration Appeals. These entities

                                11
are charged with resolving factual and legal disputes based on
an evidentiary record developed by the parties following notice
and a hearing. 8 U.S.C. § 1229a(b), (c). These functions are
inherently judicial in nature, and properly subject to principles
of issue preclusion. See, e.g., United States v. Utah Constr. &
Min. Co., 384 U.S. 394, 422 (1966) (“When an administrative
agency is acting in a judicial capacity and resolved disputed
issues of fact properly before it which the parties have had an
adequate opportunity to litigate, the courts have not hesitated to
apply res judicata to enforce repose.”). Therefore, the INA will
be read to incorporate principles of collateral estoppel if
application of the doctrine does not frustrate congressional
intent or impede the effective functioning of the agency.
Astoria, 501 U.S. at 108-11; Utah Constr., 384 U.S. at 422.

       The structure of the INA is consistent with collateral
estoppel. The Act establishes an adversarial system under which
the parties bear different burdens of proof with respect to
various issues. 8 U.S.C. § 1229a(b), (c). The INS bears the
burden of proving, by “clear and convincing” evidence, that the
individual is an alien and is subject to deportation. Id.
§ 1229a(c)(3)(A). Only if the INS satisfies this burden, based
on evidence presented at a hearing, may the immigration judge
issue an order authorizing removal. Id. § 1229a(c)(1)(A).

       Imposition of this burden would be rendered largely
meaningless if the INA is not interpreted to incorporate
principles of collateral estoppel. Failure to satisfy the burden of
proof at one hearing before one immigration judge would have
no effect on the government’s ability to bring successive
proceedings in front of successive immigration judges. The

                                12
same evidence could be introduced and the same witnesses
could be interrogated, over and over, until the desired result is
achieved. Despite the congressional command that the INS
bears the burden of proving removability based on evidence
offered during a single immigration hearing, see id. § 1229a(c),
the INS would have no real incentive to marshal all of its
evidence or present its best case against an individual. If it loses
in one hearing, it may simply reinitiate the process – repeatedly
if necessary.

        Collateral estoppel would prevent this result. It would
require, consistent with the INA, that the INS present all
available evidence against the individual during a single hearing.
Only if the INS can do so, and satisfy its burden of proof, will
it be entitled to an order of removal. See id. § 1229a(c)(1)(A).

       Indeed, the INA itself recognizes that collateral estoppel
will be applied in immigration proceedings. One section of the
Act, 8 U.S.C. § 1228, allows the United States to request an
order of removal from a federal judge during criminal
proceedings involving an alien convicted of an aggravated
felony. Id. The statute notably clarifies that “[d]enial of a
request for a judicial order of removal shall not preclude the
[INS] from initiating removal proceedings . . . upon the same
ground of deportability or upon any other ground of
deportability.” Id. § 1228(c)(4). In other words, the Act
expressly provides that collateral estoppel does not apply in this
circumstance. There would be no reason for Congress to
include this provision unless it anticipated that the doctrine
would otherwise apply in proceedings under the INA.


                                13
        Any possible ambiguity in the congressional language
may be resolved by reference to agency practice, which supports
incorporation of common law principles of preclusion. The
Board of Immigration Appeals recognized in In re Fedorenko,
19 I. & N. Dec. 57 (BIA 1984), that the “judicially-developed
doctrine of collateral estoppel” applies in immigration
proceedings. See id. at 61. This conclusion reflects the
agency’s understanding that application of common law
collateral estoppel does not contravene the language of the INA
or congressional intent. This interpretation of the statute is
entitled to deference. INS v. Aguirre-Aguirre, 526 U.S. 415, 424
(1999); see also Chevron U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 843 (1984).

        It also accords with other opinions and authorities. The
Court of Appeals for the Ninth Circuit held, in
Ramon-Sepulveda v. INS, 824 F.2d 749 (9th Cir. 1987) (per
curiam), that a failure of proof on the issue of alienage
collaterally estops the INS from relitigating the issue in
subsequent proceedings. Id. at 750-51. A similar conclusion
was reached in Medina v. INS, 993 F.2d 499 (5th Cir. 1993), in
which the Court of Appeals for the Fifth Circuit determined that
collateral estoppel was consistent with the INA and that the
doctrine precludes relitigation of an individual’s citizenship if
the issue was conceded by the INS during a prior proceeding.
Id. at 502-504 & n.15. The same position is echoed elsewhere.6


       6
        See Hamdan v. Gonzales, 425 F.3d 1051, 1059-60 (7th
Cir. 2005); Santana-Albarran v. Ashcroft, 393 F.3d 699, 703-04
(6th Cir. 2005); Johnson v. Ashcroft, 378 F.3d 164, 172 n.10 (2d

                               14
Cir. 2004); Kairys v. INS, 981 F.2d 937, 939-41 (7th Cir. 1992);
Nat’l Immigration Project of the Nat’l Law. Guild, Immigration
Law and Defense § 7:73 (3d ed. 2004) (“[A]n immigration
judge’s order terminating deportation proceedings for failure to
prove alienage has been held to be res judicata in later
deportation proceedings against the same person.”); see also
Restatement (Second) of Judgments § 83 (1982) (“[A] valid and
final adjudicative determination by an administrative tribunal
has the same effects under the rules of res judicata, subject to
the same exceptions and qualifications, as a judgment of a
court.”); 18 James Wm. Moore et al., Moore’s Federal
Practice–Civil § 132.03[e] (3d ed. 2001) (“Issues of fact
litigated and decided in a prior administrative proceeding may
have issue preclusive effect on issues of fact presented in a
subsequent administrative or judicial action.”); Charles H. Koch,
Jr., Administrative Law & Practice § 5.72[1] (2d ed. 1997)
(“The doctrines of res judicata and collateral estoppel are
applicable to administrative proceedings when an agency is
acting in a judicial capacity.”); cf. Cook v. Principi, 318 F.3d
1334, 1337 (Fed. Cir. 2002) (applying res judicata to
administrative proceedings); Jones v. SEC, 115 F.3d 1173, 1178
(4th Cir. 1997) (same); SEC v. First Jersey Sec., Inc., 101 F.3d
1450, 1463-64 (2d Cir. 1996) (same). But cf. Title v. INS, 322
F.2d 21, 23-24 (9th Cir. 1963) (rejecting application of doctrine
to preclude alien from relitigating issue of membership in
communist party, previously resolved in denaturalization
proceedings), rejected by Kairys, 981 F.2d at 939-41, and
distinguished by Fedorenko, 19 I. & N. Dec. at 62-64 (“[W]e do
not violate Congress’ intent if we apply collateral estoppel to the

                                15
        No case is to the contrary. The Supreme Court in
Vermont Yankee Nuclear Power Corp. v. Natural Resources
Defense Council, Inc., 435 U.S. 519 (1978), held that the federal
courts cannot impose procedural requirements on an agency
beyond those required under the governing statute (in that case,
the Administrative Procedures Act, 5 U.S.C. § 553), see Vt.
Yankee, 435 U.S. at 525, but it did not discuss whether a
particular common law doctrine should be “read into” a
legislative scheme and thereby made statutorily binding upon
the agency. In Pearson v. Williams, 202 U.S. 281 (1906)
(Holmes, J.), the Court concluded that principles of collateral
estoppel did not prevent the immigration service from instituting
deportation proceedings after initially granting an alien
permission to enter the country, see id. at 283-85, but this
decision was based primarily on the limited scope and non-
adjudicative nature of the entry examination, see id., attributes
that are not shared by modern removal hearings. Cf. Astoria,
501 U.S. at 110 (limiting Pearson to its facts); Utah Constr.,
384 U.S. at 421-22 & n.19 (same). Those opinions that have
held that collateral estoppel does not apply in a particular
administrative context have been premised on language in the
governing statute expressing a contrary intent, language which
does not appear in the INA. See Astoria, 501 U.S. at 110 (citing
Univ. of Tenn. v. Elliott, 478 U.S. 788 (1986)); see also Wallace
Corp. v. NLRB, 323 U.S. 248, 253 (1944).

       The INS nevertheless argues that, even if preclusion
principles should be read into the INA, collateral estoppel


respondent’s denaturalization judgment.”).

                               16
should bar relitigation of an issue only in subsequent
proceedings in the federal courts – not in proceedings within the
agency itself. It stresses that the decisions in which the Supreme
Court has discussed the doctrine, particularly Astoria Federal
Savings & Loan Association v. Solimino, 501 U.S. 104 (1991),
involved cases brought in federal court following an adverse
agency determination. See id. at 106-07. On this premise, the
INS posits that decisions of the agency should be given estoppel
effect only in subsequent judicial proceedings.

       There is no basis for this distinction. The doctrine of
collateral estoppel has long been understood to apply in all
proceedings that may be deemed “adjudicative,” no matter
whether the governing entity is a “court” or an “agency.” See
Utah Constr., 384 U.S. at 421-22 & n.20 (citing 2 Kenneth Culp
Davis, Administrative Law Treatise §§ 18.01-18.12 (1958); I.
Groner & H. Sternstein, Res Judicata in Federal Administrative
Law, 39 Iowa L. Rev. 300 (1954)); United States v. Int’l Bldg.
Co., 345 U.S. 502, 504-05 (1953); Comm’r v. Sunnen, 333 U.S.
591, 597-99 (1948); see also Pearson, 202 U.S. at 284-85.7 The
adversarial system of dispute resolution established in the INA
is plainly adjudicatory in character and susceptible to full


       7
       See also Restatement (Second) of Judgments § 83 cmt.
a (“[Collateral estoppel] applies when a final adjudicative
determination by an administrative tribunal is invoked as the
basis of claim or issue preclusion in a subsequent action,
whether that subsequent action is another proceeding in the
same administrative tribunal or is a proceeding in some other
administrative or judicial tribunal.”).

                               17
application of common law principles of preclusion. See, e.g.,
Restatement (Second) of Judgments § 83. Nothing in the statute
or the legislative history – nor any authority of which this Court
is aware – suggests that collateral estoppel should bar
relitigation in proceedings before the federal courts, but not in
proceedings before the agency itself. Accord Hamdan v.
Gonzales, 425 F.3d 1051, 1059-60 (7th Cir. 2005); Santana-
Albarran v. Ashcroft, 393 F.3d 699, 703-04 (6th Cir. 2005);
Medina, 993 F.2d at 503-04; Ramon-Sepulveda, 824 F.2d at
750; Restatement (Second) of Judgments § 83, cited with
approval in Elliott, 478 U.S. at 798 n.6; Charles H. Koch, Jr.,
Administrative Law & Practice § 5.72 (2d ed. 1997); 18 James
Wm. Moore et al., Moore’s Federal Practice–Civil § 132.03[e]
(3d ed. 2001).

       Requiring the INS to meet its burden of proof at a single
hearing is consistent with the statutory scheme, as interpreted by
the administering agency, see Fedorenko, 19 I. & N. Dec. at 61,
and will not frustrate the goals of Congress. The “lenient
presumption in favor of administrative estoppel” holds, see
Astoria, 501 U.S. at 108, and the INA will be held to incorporate
common law principles of collateral estoppel.

                               B.

        The question then becomes how the doctrine should be
applied in this case. Courts and commentators have consistently
recognized that collateral estoppel was borne of equity and is
therefore “flexible,” bending to satisfy its underlying purpose in
light of the nature of the proceedings. See Nat’l R.R. Passenger
Corp. v. Pa. Pub. Util. Comm’n, 288 F.3d 519, 528 (3d Cir.

                               18
2002). In other words, “[a]lthough [collateral] estoppel is
favored as a matter of general policy, its suitability may vary
according to the specific context of the rights at stake, the power
of the agency, and the relative adequacy of agency procedures.”
Astoria, 501 U.S. at 110 (citing Pearson, 202 U.S. at 285).

        The flexibility of the doctrine is recognized in the several
“exceptions” enumerated by the Restatement (Second) of
Judgments. See Nat’l R.R., 288 F.3d at 525 & n.3 (citing
Restatement (Second) of Judgments § 28). Collateral estoppel
generally applies when the same issue was previously litigated
by the same parties and was actually decided by a tribunal of
competent jurisdiction. E.g., Burlington N. R.R. Co. v. Hyundai
Merch. Marine Co., 63 F.3d 1227, 1231-32 (3d Cir. 1995).
However, it will not preclude relitigation of the issue when there
is a substantial difference in the procedures employed by the
prior and current tribunals, a material intervening change in
governing law or the burden of persuasion, or a “clear and
convincing need for a new determination of the issue . . .
because of the potential adverse impact of the determination on
the public interest.” Nat’l R.R., 288 F.3d at 525 n.3 (quoting
Restatement (Second) of Judgments § 28). Collateral estoppel
in the administrative context must be informed by considerations
of agency structure and legislative policy. See, e.g., Kairys, 981
F.2d at 939-41; Koch, supra, § 5.72[1]; 18 Moore et al., supra,
§ 12.30[e]; see also Restatement (Second) of Judgments § 83.

        These considerations counsel against application of the
doctrine in this case. A primary goal of several recent overhauls
of the INA has been to ensure and expedite the removal of aliens
convicted of serious crimes. See, e.g., Real ID Act § 106;

                                19
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
No. 104-132, §§ 423, 440, 442, 110 Stat. 1214, 1272, 1276-80;
Illegal Immigration Reform and Immigrant Responsibility Act
of 1996, Pub. L. No. 104-208, § 321, 110 Stat. 3009-627; see
also Leocal v. Ashcroft, 125 S. Ct. 377, 379 n.1 (2004)
(examining history of enactments). This intent pervades the
statutory provisions, which not only establish special
proceedings to handle such cases but also largely insulate orders
of removal against criminal aliens from judicial review. See 8
U.S.C. §§ 1228, 1252; see also id. § 1226(c)(1) (providing for
mandatory detention of criminal aliens).

         To apply the doctrine in a case such as this, where a
clearly deportable alien continues to commit criminal acts after
initial proceedings are terminated, would frustrate this statutory
purpose. It would effectively preclude the INS from ever
relitigating the issue of alienage or ever securing removal,
despite the alien’s ongoing criminal conduct. See 8 U.S.C.
§§ 1101(a)(3), 1229a(c) (defining alienage as an essential
element of any charge of removability). The alien could flout
any rule or commit any offense without fear of deportation. See
Nat’l Immigration Project of the Nat’l Law. Guild, Immigration
Law and Defense § 7:73 (3d ed. 2004) (characterizing the alien
as being in a “nondeportable state”). This prospective
immunization against removal is plainly contrary to
congressional intent.

        Legislative policy dictates that the bar against relitigation
must drop when the alien continues to commit criminal acts after
initial immigration proceedings. Nothing in the INA implies
that collateral estoppel should be applied in this circumstance,

                                 20
and, as discussed previously, there is every reason to infer that
Congress intended the contrary.8 See, e.g., 8 U.S.C. §§ 1228,
1252 (providing for expedited removal of aliens convicted of
serious crimes).

        The immigration judge in the 1993 proceedings did not
find that Duvall was a citizen of the United States or that she
was entitled to remain in this country. He did not doubt that
Duvall was, in fact, an alien or that she was subject to removal.
Rather, he merely terminated proceedings when the INS
unexpectedly found itself unable to secure answers from Duvall
regarding her birthplace or to introduce evidence – available but
inadmissible under local procedural rules – that could have
satisfied its burden of proof on the issue of alienage. Cf.
Medina, 993 F.2d at 502-04 & n.15 (holding that the INS was
collaterally estopped from relitigating the issue of citizenship
when an immigration judge had expressly found in prior
proceedings that the individual was a citizen).

        The termination of those proceedings had limited
collateral effect. Duvall had not been granted citizenship and
was undoubtedly deportable. She remained in the United States
not by any affirmative entitlement, but by virtue of a simple
litigation error. Her subsequent convictions demonstrated,


       8
         We do not suggest, by holding that collateral estoppel
does not bar relitigation in these cases, that it necessarily does
bar relitigation in others. Different legislative policies, which
are not implicated here, may counsel against application of the
doctrine in other situations.

                               21
beyond doubt, that her continued presence in this country
contravened congressional intent and that continued application
of the doctrine of collateral estoppel was unwarranted. There
was thereafter no bar to relitigation of Duvall’s alienage or to
entry of the order of removal.

                               IV.

        The government’s failure to prove alienage during the
1993 proceedings granted Duvall a conditional reprieve from
deportation. But it did not grant her an absolute pardon. Her
protection lasted only for so long as she adhered to the laws of
this country. She failed to do so, and was thus no longer entitled
to the benefits of collateral estoppel. Deportation proceedings
were properly commenced, and the order of removal was
properly entered, based on Duvall’s criminal convictions in
1995 and 2001.

      Accordingly, the order of the District Court will be
vacated and the petition for review will be denied.




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