                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  June 22, 2006

                                                           Charles R. Fulbruge III
                             No. 05-60525                          Clerk
                           Summary Calendar



                           NAFIS AHMED KHAN,

                              Petitioner,

                                versus

             ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

                              Respondent.


                          --------------------
                 Petition for Review of an Oder of the
                      Board of Immigration Appeals
                           BIA No. A28 729 571
                          --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Nafis Ahmed Khan, a native and citizen of Pakistan, has

petitioned for review of a final order of the Board of

Immigration Appeals (BIA) summarily affirming the order of

removal entered by the Immigration Judge (IJ) denying

discretionary waiver of deportation under INA § 202(c), 8 U.S.C.

§ 1182(c).     Khan was convicted by a California court in 1992 of

solicitation of murder.     The IJ determined that the offense




     *
       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this opinion should not be published and is not precedent except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.
                             No. 05-60525
                                  -2-

qualified as an aggravated felony and a crime involving moral

turpitude, rendering Khan deportable.

       Khan argues that he was eligible for a discretionary waiver

because the California court vacated his conviction in 1999.    We

may review a final order of removal only when “the alien has

exhausted all administrative remedies available to the alien as

of right.”    8 U.S.C. § 1252(d)(1).   “Failure to exhaust an issue

creates a jurisdictional bar as to that issue.”     Roy v. Ashcroft,

389 F.3d 132, 137 (5th Cir. 2004).     “When a petitioner seeks to

raise a claim not presented to the BIA and the claim is one that

the BIA has adequate mechanisms to address and remedy, the

petitioner must raise the issue in a motion to reopen prior to

resorting to review by the courts.”     Goonsuwan v. Ashcroft, 252

F.3d 383, 390 (5th Cir. 2001).    Because Khan did not raise this

issue before filing for review in this court, this court lacks

jurisdiction to review it.    See id.; see also Roy, 389 F.3d at

137.    Accordingly, his petition is dismissed in part.

       Khan also argues that a prior removal proceeding was

terminated in his favor, that the matter of his removability

therefore is res judicata, and that the respondent is

collaterally estopped from seeking his removal.    The doctrine of

res judicata “provides that a valid and final judgment precludes

a second suit between the same parties on the same claim or any

part thereof.”    Medina v. INS, 1 F.3d 312 (5th Cir. 1993).   The

doctrine also precludes parties “‘from relitigating issues that
                           No. 05-60525
                                -3-

... could have been raised in [a prior] action.’” In re Gibraltar

Resources, Inc., 210 F.3d 573, 576 (5th Cir. 2000) (citation

omitted).   “However, the application of res judicata has been

limited to issues of fact or law necessary to the decision in the

prior judgment.   In other words, the allegedly barred claim must

arise out of the same nucleus of operative facts involved in the

prior litigation.”   Rhoades v. Penfold, 694 F.2d 1043, 1048 (5th

Cir. 1983).   Because the issue of Khan’s removability based on

his 1992 conviction does not involve issues of fact or law

necessary to the decision in the prior judgment of arise out of

the same nucleus of operative facts involved in the prior

litigation, it is not barred by the doctrine of res judicata.

Accordingly, Khan’s petition for review is denied in part.

     PETITION FOR REVIEW DENIED IN PART, DISMISSED IN PART.
