CARNES, Circuit Judge:
This is an immigration case involving Odulene Dormescar, a native and citizen of Haiti. An immigration judge ordered him removed because he had been convicted of an aggravated felony. The Board of Immigration Appeals dismissed his appeal of that order. He has petitioned this Court for review. His petition potentially presents three issues. The first is whether this Court has subject matter jurisdiction. If we do, the second issue is whether res judicata bars the Department of Homeland Security's proceedings against Dormescar based on the aggravated felony conviction. If it does not, the third issue is whether the Department had the authority to amend the notice to appear to charge Dormescar as "admitted to the United States, but ... removable" when he was originally charged as an inadmissible "arriving alien." The procedural history of this case is long and winding, but mapping it out in some detail is necessary to an understanding of this leg of the journey and what will probably be the final destination.
Dormescar was granted lawful permanent resident status in the United States in 1998.
Those are the events that started this case on the journey leading to this appeal. We usually would proceed step-by-step with a chronological account of what happened thereafter, but we deviate from that usual practice to take a terminology detour. The concepts of inadmissibility, deportability, and removability are crucial to the resolution of this appeal, and they can be confusing and are sometimes confused, so we will try to clarify them before we travel any farther.
Before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009, there was a "fundamental distinction between excludable aliens and deportable aliens." Garcia-Mir v. Smith, 766 F.2d 1478, 1483 (11th Cir. 1985). Excludable aliens sought admission but had not yet achieved it. Id. at 1483-84. They were legally considered detained at the border, even if they were physically present in the United States. Id. Deportable aliens, by contrast, were those who had "succeeded in either legally or illegally entering this country." Id.; see also Clark v. Martinez, 543 U.S. 371, 375 n. 2, 125 S.Ct. 716, 721 n. 2, 160 L.Ed.2d 734 (2005) (explaining that before the enactment of IIRIRA, "aliens ineligible to enter the country were denominated `excludable' and ordered `deported,'" and "[p]ost-IIRIRA, such aliens are said to be `inadmissible' and held to be `removable'"); Sicar v. Chertoff, 541 F.3d 1055, 1064 n. 3 (11th Cir.2008) ("The IIRIRA replaced the term `excludable' with `inadmissible.'"). After IIRIRA was enacted, exclusion and deportation proceedings that had been separate and distinct were merged into unified "removal" proceedings, which determine whether an alien is inadmissible (not yet admitted) or deportable (admitted but removable). See 8 U.S.C. § 1229a(a)(1) ("An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien."); Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 349, 125 S.Ct. 694, 704, 160 L.Ed.2d 708 (2005) ("Removal is a new procedure created in 1996 through the fusion of two previously distinct expulsion proceedings, `deportation' and `exclusion.'"). A removal proceeding is generally "the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States." 8 U.S.C. § 1229a(a)(3).
The enactment of IIRIRA broadened the scope of inadmissibility by altering the
Vartelas, 132 S.Ct. at 1485 n. 3.
To summarize, a conviction for a crime involving moral turpitude makes an alien inadmissible. See id.; 8 U.S.C. § 1182(a)(2)(A)(i)(I). A conviction for an aggravated felony after admission makes an alien deportable, see id. § 1227(a)(2)(A)(iii), and as a result he can be classified as admitted but removable. See id. § 1229a(e)(2)(B). The term "removable" encompasses the terms inadmissible and deportable aliens, and it is defined as: "(A) in the case of an alien not admitted to the United States, that the alien is inadmissible under section 1182 of this title, or (B) in the case of an alien admitted to the United States, that the alien is deportable under section 1227 of this title." Id. § 1229a(e)(2)(A)-(B). An alien in removal proceedings "may be charged with any applicable ground of inadmissibility under section 1182(a) of this title or any applicable ground of deportability under section 1227(a)." Id. § 1229a(a)(2).
Dormescar, as we have mentioned, was first charged with inadmissibility under 8 U.S.C. § 1182 as an arriving alien who had been convicted of a crime relating to a controlled substance and crimes involving moral turpitude. That was in November of 2006. Now we will return to what happened next.
After the Department served Dormescar with the notice to appear in November 2006, the Secret Service took him into custody based on a warrant charging him with possession of counterfeited securities. About two months later, on February 5, 2007, Dormescar pleaded guilty in federal court to one count of uttering and possessing a counterfeited security in violation of 18 U.S.C. § 513(a). On April 25, 2007, the district court entered judgment on Dormescar's guilty plea, and he was convicted of the crime. The district court sentenced him to twelve months in prison.
On December 10, 2007, the Department filed in the immigration court the notice to appear that it had served on Dormescar in
A few months after the Department filed the notice to appear with the immigration court in December 2007, Dormescar filed a motion to terminate the proceedings, making three assertions, all of which he ultimately established: his 1990 cocaine conviction had been vacated; the 1992 misdemeanor battery conviction was not a crime involving moral turpitude; and he had not been convicted of felony aggravated assault. A hearing on the motion was scheduled for March 2008. Sometime before or during that hearing, the Department filed a copy of the record of Dormescar's 2007 counterfeiting conviction, a copy of which was given to Dormescar's counsel at the hearing.
About a week later Dormescar filed a supplement to his motion to terminate the proceedings, arguing that because the Department had not charged him with inadmissibility based on his 2007 counterfeiting conviction, the IJ could not consider it in determining removability. The IJ denied Dormescar's motion. In his written order the IJ acknowledged that the Department had failed to establish that Dormescar was inadmissible because of the 1990 and 1992 convictions alleged in the notice. The IJ ruled, however, that Dormescar was an inadmissible alien because his 2007 counterfeiting conviction was a crime involving moral turpitude and that he was removable for that reason. The IJ also ruled that Dormescar was not eligible for cancellation of removal because the counterfeiting conviction was an "aggravated felony" under the Immigration and Nationality Act.
Dormescar appealed the IJ's order to the Board of Immigration Appeals. While that appeal was pending, the Department filed a motion asking the Board to remand the case to the IJ so that the Department could amend the notice to add "factual allegations regarding [Dormescar's] criminal history — including his conviction for a crime related to counterfeiting — and any necessary additional charges of removability."
In an order issued on September 9, 2008, the Board "sustained" Dormescar's appeal, denied the Department's motion to remand, and terminated the removal proceedings. "Because [Dormescar's] 2007 conviction was not alleged in the Notice to Appear or a subsequent filing of additional charges," the Board reasoned, "it cannot
On September 12, 2008, just three days after the Board issued its Dormescar I decision, the Department served Dormescar with a new notice to appear, which it filed with the immigration court several days later. This second notice to appear designated Dormescar as an arriving alien and alleged that he was inadmissible based on his 2007 counterfeiting conviction, which is a crime involving moral turpitude. And so began the proceedings that we will call Dormescar II.
The IJ held a hearing on October 1, 2008. He explained that he was considering certifying the case to the Board because it had not addressed in Dormescar I the issue of whether Dormescar had been admitted to the United States. Whether he had been admitted is important. An arriving alien who has been convicted of a crime of moral turpitude is inadmissible, see 8 U.S.C. § 1182(a)(2)(A)(i)(I), but an admitted alien who has been convicted of an aggravated felony "at any time after admission is deportable," id. § 1227(a)(2)(A)(iii). As the Second Circuit explained:
Cruz-Miguel v. Holder, 650 F.3d 189, 197 n. 13 (2d Cir.2011).
At the hearing before the IJ in October 2008, Dormescar argued that because the Board's September 9, 2008 order had terminated the proceedings against him in Dormescar I, he was deemed admitted on that date. The IJ directed the parties to submit briefs on that issue. While the IJ was considering whether to terminate the proceedings or certify the case to the Board, Dormescar filed another motion to terminate the proceedings. This motion contended that: (1) he was admitted to the United States by operation of law when the Board terminated the proceedings in Dormescar I; (2) at the end of Dormescar I his immigration status was "lawful permanent resident," not "arriving alien"; (3) because of that status, he should have been charged as admitted but removable under 8 U.S.C. § 1227 instead of being charged with inadmissibility under 8 U.S.C. § 1182; and (4) res judicata barred any further proceedings after Dormescar I. On the res judicata issue, he argued that the Board's September 9, 2008 order in Dormescar I was a final judgment on the merits, that the Department knew about and could have charged the 2007 conviction as grounds for removal during the Dormescar I proceedings, and because it had failed to make the charge at that time, res judicata barred it from being made in Dormescar II, the current proceedings.
The IJ issued an order in November of 2008. In his order the IJ pointed out that the Board's September 9, 2008 order in Dormescar I had not expressly granted Dormescar admission into the United States. The IJ also observed that "the question of whether [Dormescar] is removable based upon his conviction of a counterfeiting offense has not yet been subject to final consideration." For those reasons, and relying on Board precedent which established that the application for admission was "continuing" in nature, the IJ determined that Dormescar was an arriving alien who had been correctly charged with inadmissibility. See Matter of Kazemi, 19 I. & N. Dec. 49, 51 (BIA 1984) ("[A]n application for admission to the United States is a continuing application and admissibility is determined on the basis of the law and the facts existing at the time the application is finally considered."); 8 U.S.C. § 1182(a)(2)(A)(i)(I) (providing that any alien who has been convicted of a crime of moral turpitude is inadmissible).
The IJ concluded that the 2007 counterfeiting conviction was a crime involving moral turpitude and held that Dormescar was inadmissible on that ground. The IJ also determined that the 2007 counterfeiting conviction was an aggravated felony, and because Dormescar had been convicted of an aggravated felony, he was not eligible for cancellation of removal. See 8 U.S.C. § 1229b(a)(3). The IJ did not rule on the res judicata issue and instead certified the record to the Board, asking for clarification about whether the Board had terminated Dormescar I on the merits based on all grounds for removal or just the ones charged in the first notice.
The Board in turn remanded the case to the IJ. In doing so, the Board held: "The current proceedings are not barred by res judicata because they present a different basis for removability than the prior proceedings. The current charge of removal is based on a new factual predicate, namely [Dormescar's] 2007 conviction for uttering and possessing a counterfeited and forged security of an organization." The Board determined that the Dormescar II proceedings did not "arise out of the same nucleus of operative fact" as the Dormescar I proceedings. Even though in Dormescar I it found that the Department could have but did not charge removal based on the 2007 counterfeiting conviction, the Board ruled that the Department was not precluded from bringing a charge based on that conviction in Dormescar II. The Department was not required to bring that charge in Dormescar I even though it could have.
The Board explained in Dormescar II that its September 9, 2008 order in Dormescar I, which denied the Department's motion to remand and terminated the proceedings, "did not implicitly consider the validity of a removal charge based on [Dormescar's] 2007 conviction." Instead,
The Department complied with the Board's Dormescar II order by filing on March 31, 2009 a form titled "Additional Charges of Inadmissibility/Deportability." In that "Additional Charges" form the Department withdrew its earlier charge that Dormescar was inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien convicted of a crime involving moral turpitude. In its place the Department charged that he was an admitted but removable alien under 8 U.S.C. § 1227(a)(2)(A)(iii) because he had been convicted of an "aggravated felony." The statutory list of aggravated felonies includes "an offense relating to... counterfeiting ... for which the term of imprisonment is at least one year," 8 U.S.C. § 1101(a)(43)(R), which is the crime Dormescar had been convicted of in April 2007. Although the Additional Charges form expressly changed the charge to reflect that conviction, the form had no specific place to indicate, and when completed did not indicate, that the Department was also changing the immigration status selection of "inadmissible." That is the status the Department had designated in the first and second notices to appear, which it had filed December 2007 and September 2008.
Near the top of a standard notice to appear form there are these three options, each with a box that can be marked to designate an alien's immigration status:
On Dormescar's first and second notices to appear, the first box ("You are an arriving alien") is marked with an "x." That is the box to mark for inadmissible aliens charged with removal under 8 U.S.C. § 1182. The third box is the one that should be marked for admitted aliens charged with removal ("deportable" aliens) under 8 U.S.C. § 1227.
After the Department filed the first Additional Charges form, which amended the second notice to appear, the IJ held a hearing but the recording equipment malfunctioned and no transcript of that hearing exists. After that hearing, the Department filed a second Additional Charges form, which amended the second notice to appear a second time (making it, one could say, the second amended second notice to appear). This second Additional Charges form indicated that on the second notice to appear the Department had intended to change the box designating Dormescar's status from arriving alien to admitted
The IJ held another hearing, at which Dormescar asserted that the Department had no authority to amend the designation of status from arriving to admitted but removable. He cited the regulations that allow the Department to amend a notice to add new charges and new factual allegations, 8 C.F.R. §§ 1003.30, 1240.10(e), and argued that they do not permit the Department to change designation of status because it is neither a charge nor a factual allegation. Dormescar contended that the Department should be required to file a new notice to appear instead of being allowed to amend an earlier one and that the proceedings should be terminated. He also argued that res judicata barred all of the proceedings after Dormescar I, despite the Board's holding that res judicata was not a bar.
On January 7, 2010, the IJ held yet another hearing and issued an oral decision against Dormescar. The recording equipment malfunctioned yet again, resulting in a hearing transcript filled with notations of "indiscernible."
On remand the IJ issued another oral decision, recounting the long procedural history of the case. He acknowledged, as Dormescar had argued, that the designation on the notice to appear of an alien's status "is more than merely a factual allegation; it is a powerful designation of status by the government that can dramatically affect the rights" of the alien subject to removal.
Dormescar appealed to the Board, contending that the Department had no authority to amend the second notice to change the designation of his status from inadmissible to admitted but removable. He also contended that res judicata barred all removal proceedings after Dormescar I.
On November 24, 2010, the Board issued a decision holding that the Department had correctly followed its remand order in Dormescar II and that the amendment of the notice to change Dormescar's designation from inadmissible to admitted but removable "was not in violation of any regulatory or statutory provision." The Board also reiterated its holding from Dormescar II that res judicata did not bar the current proceedings because they did not arise out of the same nucleus of operative facts as the earlier proceedings. For those reasons, the Board dismissed Dormescar's appeal. So ended the administrative proceedings part of Dormescar IV, the decision in which is now before us for review.
In his challenge to the Board's dismissal of his appeal in Dormescar IV, Dormescar contends that res judicata bars the removal proceedings in Dormescar II, Dormescar III, and Dormescar IV — everything that occurred after the Board's ruling in Dormescar I terminated the first removal proceedings against him. He alternatively contends that even if res judicata is not a bar, the Board erred by remanding the case in Dormescar II with permission for the Department to change his designation from an inadmissible arriving alien under 8 U.S.C. § 1182 to an admitted but removable alien under 8 U.S.C. § 1227. He insists that the Board had no authority to permit the Department to do that.
We first consider whether we have jurisdiction over Dormescar's petition for review. He was convicted in 2007 of a counterfeiting offense that constitutes an aggravated felony. See 8 U.S.C. § 1101(a)(43)(R) ("The term `aggravated felony' means ... an offense relating to... counterfeiting ... for which the term of imprisonment is at least one year[.]"). Congress has directed that "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed" an aggravated felony. Id. § 1252(a)(2)(C). An exception applies, however, to petitions for review that raise questions of law. See id. § 1252(a)(2)(D) ("Nothing in subparagraph (B) or (C), ... which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.").
Dormescar has raised two questions of law over which we have jurisdiction. See 8 U.S.C. § 1252(a)(2)(D). The first is whether res judicata bars him from being found removable based on his 2007 counterfeiting conviction. See Singh v. U.S. Att'y Gen., 561 F.3d 1275, 1278-80 (11th Cir.2009) (recognizing that § 1252(a)(2)(D) provides this Court with jurisdiction over questions of law and addressing petitioner's res judicata argument even though he had been convicted of an aggravated felony); see also Maldonado v. U.S. Att'y Gen., 664 F.3d 1369, 1375 (11th Cir.2011) ("Even though § 1252(a)(2)(C) would otherwise generally bar jurisdiction, we may
On the res judicata issue, Dormescar acknowledges that the Department could have charged the 2007 counterfeiting conviction as grounds for his removal during the Dormescar I proceedings, but points out that it failed to do so. He also points out that even though the counterfeiting conviction was not charged as the basis for removal in Dormescar I, the Department did use it to convince the IJ to order removal in those proceedings.
As a general rule, "[r]es judicata bars the filing of claims which were raised or could have been raised in an earlier proceeding." Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir.1999).
The charge that Dormescar was admitted but removable was not available to the Department until the inadmissibility issue had been resolved in Dormescar's favor in Dormescar I. In that first proceeding the Department had charged Dormescar with inadmissibility under § 1182(a) based on his convictions for crimes involving moral turpitude, specifically his 1990 and 1992 Florida state convictions. At the conclusion of Dormescar I, the Board held that those convictions were not a proper basis for inadmissibility, the proceedings were terminated, and Dormescar was implicitly deemed admitted. Then in Dormescar II the Department charged Dormescar with inadmissibility under § 1182(a) based on his conviction for a crime involving moral turpitude, relying on his 2007 counterfeiting conviction, and the IJ ruled that he was removable on those grounds.
The Board held in Dormescar II that Dormescar should have been charged with removability under § 1227(a), and it remanded the case so that the Department could change its charge to one that was proper against an admitted alien. The Department did exactly that, and Dormescar was ultimately ordered removed as an admitted alien who had been convicted of an aggravated felony. Removability under § 1227(a) is a different charge from inadmissibility
Dormescar alternatively contends that even if res judicata does not bar the proceedings that followed Dormescar I, the Department had no authority to change his designation in the second notice to appear from arriving inadmissible alien to admitted alien subject to removal, which is, in effect, what the Board directed it to do in Dormescar II.
Dormescar argues, however, that his status as an arriving alien or as an admitted alien subject to removal is a "designation" instead of a "fact" or a "charge," and because of that, the Department had no authority to amend it. But nothing in the regulations prohibits the Department from changing an alien's designation, and if it has the authority to change factual allegations and charges, there is no reason it cannot change a designation that is part and parcel of the allegations and charges. The designation appears at the top of the notice to appear form separate from the parts where the Department is to state its allegations and charges, but the designation is an allegation of particular facts and circumstances relevant to a charge. The Department's amended second notice to appear actually did change the charge against Dormescar by withdrawing its charge of inadmissibility under § 1182(a) and substituting a charge of removability under § 1227(a). The only thing it did not do was indicate that a different box should be checked on the notice to appear form to correspond to the new allegations.
Dormescar also argues that he was prejudiced by having to bear the wrong burden of proof: the burden of showing admissibility was on him when he was designated as an arriving alien, while the burden of showing removability after he was admitted was on the Department. But Dormescar no longer had to bear the burden of showing admissibility after he was deemed admitted at the conclusion of Dormescar I. And the change in his designation to "admitted" following the remand in Dormescar II made it clear the Department had
In conclusion, the Board had the authority to order the remand in Dormescar II, see 8 C.F.R. § 1003.1(d)(7), and its remand order gave the Department the authority to amend the second notice to appear to make the appropriate charge. The Department did so in its Additional Charges form by withdrawing its earlier charge that Dormescar was inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i) as an alien convicted of a crime involving moral turpitude, and charging instead that he was admitted but removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because he had been convicted of an aggravated felony. See 8 U.S.C. § 1101(a)(43)(R). Even though the Department did not indicate until later that the box it had checked in the second amended notice to appear should be changed to reflect that Dormescar was being charged as admitted but removable under § 1227(a), it was clear from the Department's earlier amendment that Dormescar was being charged that way. He knew that. The Department had the authority to bring that new charge, see 8 C.F.R. §§ 1003.30, 1240.10(e), and to change his designation of status from inadmissible to admitted but removable.
The Department might be right, but we need not reach the issue of whether res judicata always or never applies in agency proceedings involving aliens who have been convicted of aggravated felonies because, even assuming that the defense generally does apply with full force in immigration proceedings, under the specific facts of this case it is not a bar to the removal order issued in Dormescar IV.
