                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           MAR 15 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RENE ALBERTO HERRERA-                            No. 12-72798
CASTANOLA, AKA Rene Alberto
Herrera,                                         Agency No. A030-562-653

              Petitioner,
                                                 MEMORANDUM*
  v.

LORETTA E. LYNCH, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                    Argued and Submitted November 20, 2015
                            San Francisco, California

Before: M. SMITH and N.R. SMITH, Circuit Judges and SCHEINDLIN,** Senior
District Judge.

       Rene Alberto Herrera-Castanola, native and citizen of Mexico, petitions for

review of the decision by the Board of Immigration Appeals (“BIA”) dismissing


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Shira Ann Scheindlin, Senior District Judge for the
U.S. District Court for the Southern District of New York, sitting by designation.
his appeal from an immigration judge’s (“IJ”) decision finding him removable.1

Herrera-Castanola asserts that the IJ and the BIA erred in determining that (1) they

lacked authority to apply the doctrine of equitable estoppel, and (2) the doctrine of

res judicata should not be applied in these removal proceedings. We have

jurisdiction to review final orders of removal and questions of law under 8 U.S.C.

§ 1252. We deny the petition for review.

1.    Only Article III courts have the authority to apply the doctrine of equitable

estoppel against the government. See Chang v. United States, 327 F.3d 911, 924

(9th Cir. 2003) (noting that equitable relief “lie[s] outside the scope and

jurisdiction of the [IJs] and the BIA”). Thus, neither the IJ nor the BIA had the

authority to apply the doctrine of equitable estoppel. See id.

2.    Applying de novo review, we conclude that the doctrine of res judicata is not

appropriate in this case. See Clark v. Bear Stearns & Co. Inc., 966 F.2d 1318,

1320 (9th Cir. 1992). Herrera-Castanola argues that the Department of Homeland

Security (“DHS”) is prohibited under the doctrine of res judicata from pursuing

this removal action because (A) the May 2004 district court order precluded DHS

from asserting he is an alien, and (B) the reinstatement of the charges against

      1
       Herrera-Castanola does not challenge the BIA’s conclusion that he is
removable based on his aggravated felony convictions. Thus, that issue is waived.
Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).

                                           2
Petitioner violated our holding in Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th

Cir. 2007). We disagree.

      A.     Even though the elements of res judicata are met in this action, there

are exceptions to the application of this general rule. See United States v.

Meza-Soria, 935 F.2d 166, 169 (9th Cir. 1991). The Restatement (Second) of

Judgments provides that “relitigation of [an] issue in a subsequent action between

the parties is not precluded” when “[t]here is 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 . . . .” Restatement (Second) of Judgments

§ 28(5)(a) (1982).

      In this case, we conclude that applying the district court’s May 2004

decision—that the government was estopped from arguing that Herrera-Castanola

was an alien—in this removal action would be contrary to the intent of Congress.

Herrera-Castanola has a lengthy criminal history for which he was legally removed

from the United States in August 1999. Nevertheless, he later reentered the United

States without being admitted or paroled and, after the district court’s May 2004

decision, he was convicted and sentenced on two separate crimes. We cannot

condone Herrera-Castanola’s recent and repeated criminal conduct. In light of

these circumstances, we conclude that the government misconduct found by the


                                           3
district court does not outweigh Congress’s mandate to remove aliens with serious

criminal histories. See, e.g., Real ID Act Pub. L. 109-13, § 106, 119 Stat. 302, 310

(2005); 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 Pondoc Hernaez v. INS, 244 F.3d 752, 757 (9th Cir.

2001) (noting that in enacting the Illegal Immigration Reform and Responsibility

Act, “Congress was obviously concerned with speeding up the deportation of

criminal aliens”). Applying res judicata in this case would frustrate Congress’s

intent and create an “adverse impact of the determination on the public interest.”

Restatement (Second) of Judgments § 28(5)(a). Therefore, we decline to apply res

judicata to the district court’s May 2004 decision in the context of this removal

proceeding.

      B.      We also reject Herrera-Castanola’s res judicata claim under

Bravo-Pedroza. Bravo-Pedroza is distinguishable from this case. In that case,

DHS attempted to use convictions available to it during the initial proceedings

(which failed) to initiate new removal proceedings. 475 F.3d at 1359-60. We held

that DHS was barred by res judicata from “initiating a second deportation case on

the basis of a charge that [it] could have brought in the first case, when, due to a


                                           4
change of law that occurred during the course of the first case, [it] lost the first

case.” Id. at 1358. Here, the government did not lose its first removal proceeding.

Nothing in Bravo-Pedroza suggests that res judicata applies to reinstatement of the

same charges following an initial (successful) removal.2 Thus, Bravo-Pedroza is

inapplicable here.

      PETITION FOR REVIEW DENIED.




      2
       Nor does Bravo-Pedroza suggest that DHS would have been precluded
from bringing removal proceedings based on offenses committed after the initial
removal.

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