In the

United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 07-2133

G USTAVO E NRIQUE A LVEAR-V ELEZ,
                                                         Petitioner,
                              v.

M ICHAEL B. M UKASEY, Attorney
General of the United States,
                                                        Respondent.
                       ____________
                    Petition for Review of an
           Order of the Board of Immigration Appeals.
                         No. A42-281-319
                       ____________

     A RGUED A PRIL 1, 2008—D ECIDED S EPTEMBER 2, 2008
                       ____________



 Before C UDAHY, R IPPLE and R OVNER, Circuit Judges.
  R IPPLE, Circuit Judge. Gustavo Enrique Alvear-Velez, a
native and citizen of Colombia, was admitted lawfully
into the United States in 1990. In 1999, the Immigration
and Naturalization Service (“INS”), now the Department
of Homeland Security (“DHS”), commenced removal
proceedings against Mr. Alvear-Velez on the ground that
he had been convicted of an aggravated felony. See 8 U.S.C.
2                                                      No. 07-2133

§ 1227(a)(2)(A)(iii); 

The immigration
judge (“IJ”) terminated the proceedings based on Mr.
Alvear-Velez’s res judicata defense, but, on appeal, the
Board of Immigration Appeals (“BIA” or “Board”) deter-
mined that the IJ had erred in applying res judicata. The
Board then remanded the case to the IJ.
  On remand, Mr. Alvear-Velez applied for a waiver
of deportability under former-section 212(c) of the Immi-
gration and Nationality Act (“INA”), 8 U.S.C. § 1182(c)
(repealed 1996). The IJ determined that Mr. Alvear-Velez
was removable based on a 1993 sexual assault conviction
and also determined that he was statutorily ineligible
for a section 212(c) waiver based on In re Blake, 23 I. & N.
Dec. 722 (BIA 2005). Mr. Alvear-Velez appealed the IJ’s
decision, but the BIA dismissed the appeal. Mr. Alvear-
Velez timely petitioned for review of the BIA’s decision.1



1
   Under 8 U.S.C. § 1252(a)(1), we have jurisdiction to review
final orders of removal issued by the Board. In cases where an
alien has been found removable on the ground that he com-
mitted an aggravated felony offense, as is the case here, our
jurisdiction is limited to reviewing “constitutional claims” and
“questions of law.” See 8 U.S.C. §§ 1252(a)(2)(C), (D). All of Mr.
Alvear-Velez’s arguments satisfy this requirement. The ap-
plication of res judicata is a question of law, and therefore
we have jurisdiction to review Mr. Alvear-Velez’s challenge
on that ground. See Hamdan v. Gonzales, 

, 1056-57
(7th Cir. 2005); see also Channer v. Dep’t of Homeland Sec., 

, 279 (2d Cir. 2008) (“As several of our sister Circuits have
held, the application of res judicata is an issue of law that we
have jurisdiction to review.”).
No. 07-2133                                               3

 For the reasons set forth in this opinion, we deny Mr.
Alvear-Velez’s petition for review.


                             I
                    BACKGROUND
  Mr. Alvear-Velez is a native and citizen of Colombia. He
entered the United States as a lawful permanent resident
on October 6, 1990, at the age of 15. Mr. Alvear-Velez’s
entire immediate family resides in the United States. On
April 30, 1993, he pleaded guilty to criminal sexual assault
by a family member, in violation of Illinois law. He
was sentenced to “periodic imprisonment” for twelve
months and supervised probation for forty-eight months,
and he served eight months of his imprisonment in a work-
release program. A.R. at 247.
  In 1994, the immigration authorities commenced deporta-
tion proceedings against Mr. Alvear-Velez based on his
criminal sexual assault conviction, charging him with
having been convicted of a crime involving moral turpi-
tude within five years of entry, for which he was sen-
tenced to imprisonment or actually confined for one year
or more. See 8 U.S.C. § 1251(a)(2)(A)(i) (renumbered in
1996). Mr. Alvear-Velez moved to terminate the proceed-
ings. He argued that his crime was not one of moral
turpitude and that he had not been sentenced to con-
finement or actually confined for one year or more.
   During the course of those deportation proceedings, the
IJ determined that the crime was one of moral turpitude,
but that Mr. Alvear-Velez had not been sentenced to
4                                               No. 07-2133

imprisonment or confined for more than a year. Conse-
quently, the IJ terminated the deportation proceedings. The
INS filed an appeal, which it subsequently withdrew.
Accordingly, the IJ’s order of June 14, 1994, dismissing
the deportation proceedings became a final administra-
tive order. See 8 C.F.R. § 1003.39.
  On June 14, 1999, Mr. Alvear-Velez reported to the
police station to register as a sexual offender, as he was
required to do every year. The police determined that he
had missed a prior reporting date because he had moved
in the interim and therefore arrested him. On June 18, 1999,
the DHS served him with a notice to appear in removal
proceedings to answer the charge that, under 8 U.S.C.
§ 1227(a)(2)(A)(iii), he was subject to removal as an alien
convicted of an aggravated felony as defined by 8 U.S.C.
§ 1101(a)(43)(A). The predicate felony was Mr. Alvear-
Velez’s 1993 conviction, the same conviction that had
served as the basis for his 1994 deportation proceedings.
  Mr. Alvear-Velez, through counsel, contended that res
judicata barred the DHS from initiating proceedings a
second time using the same conviction. The IJ agreed. The
DHS appealed, and the BIA sustained the appeal, vacated
the IJ’s decision and remanded the case for further pro-
ceedings. The Board explained that, although both immi-
gration proceedings were based on the same 1993 convic-
tion, “the law governing immigration consequences of
criminal convictions ha[d] changed significantly” since
the prior proceedings. A.R. at 248. The Board noted that
the definition of aggravated felony had been expanded
to include sexual abuse of a minor. “In view of this change
No. 07-2133                                                       5

in law,” the Board continued, “we find that the doctrine
of res judicata does not preclude the Service from relying
on the 1993 conviction to pursue the respondent’s deporta-
tion.” 

to the IJ, Mr. Alvear-Velez indicated an
intention to seek waiver of his removal under INA § 212(c),
8 U.S.C. § 1182(c) (repealed 1996).2 The proceedings were
continued twice, and, in the interim, the BIA issued its
ruling in In re Blake, 23 I. & N. Dec. 722 (BIA 2005). In that
decision, the BIA held that an alien deportable because
of a conviction for sexual abuse of a minor is not eligible
for a section 212(c) waiver because there is no statu-
tory counterpart of that ground of deportability in the
enumerated grounds of inadmissibility in section 212(a)
of the INA. When Mr. Alvear-Velez’s removal pro-
ceedings recommenced, the IJ held that, based on Blake,
Mr. Alvear-Velez was ineligible for a section 212(c) waiver.
  Mr. Alvear-Velez timely appealed to the BIA. The BIA
determined that Mr. Alvear-Velez’s 1993 Illinois conviction
qualifies as an aggravated felony for sexual abuse of a
minor, which rendered him ineligible for a section 212(c)
waiver. The Board accordingly dismissed the appeal.



2
  See also INS v. St. Cyr, 

, 295-96 (2001) (holding that
section 212(c) waivers remain available to aliens who
pleaded guilty to an aggravated felony prior to the effective
date of the repeal and who would have been eligible for relief
under the law then in effect). See generally Valere v. Gonzales, 

, 759-60 (7th Cir. 2007) (discussing section 212(c)
waivers).
6                                                   No. 07-2133

  Mr. Alvear-Velez timely petitioned for review of the
BIA’s decision.


                               II
                        DISCUSSION
  Mr. Alvear-Velez challenges the BIA’s decision on
several grounds. First, he contends that the doctrine of res
judicata bars the immigration authorities from instituting
removal proceedings based on the same criminal convic-
tion that had formed the basis of their prior, unsuccessful
deportation effort. Second, he submits that the removal
proceedings instituted in this case violate the transi-
tional rules governing the implementation of the Illegal
Immigration Reform and Immigrant Responsibility Act
of 1996 (“IIRIRA”), Pub. L. No. 104-208, § 309, 110 Stat.
3009, 3009-625-27. Third, Mr. Alvear-Velez claims that
the instant removal proceedings violate established im-
migration procedures because the DHS could have filed a
motion to reopen his original deportation proceedings
rather than commencing removal proceedings in 1999.
Fourth, Mr. Alvear-Velez contends that the DHS violated
his substantive due process rights by instituting these
proceedings.3



3
  In his main brief, Mr. Alvear-Velez also challenged the Board’s
determination that, under In re Blake, 23 I. & N. Dec. 722 (BIA
2005), his 1993 conviction for criminal sexual assault cannot be
waived under section 212(c) of the INA. At oral argument,
                                                   (continued...)
No. 07-2133                                                    7

                               A.
  We first turn to Mr. Alvear-Velez’s contention that the
Board committed legal error in determining that the
doctrine of res judicata did not prevent the DHS from
charging him as being removable based on the same
criminal conviction for which he previously was found
not to be deportable.
  The applicability of res judicata hinges on three ele-
ments: “(1) an identity of the parties or their privies; (2)
identity of the cause of action; and (3) a final judgment on
the merits.” Prochotsky v. Baker & McKenzie, 

,
334 (7th Cir. 1992). The second element—identity of the
cause of action—is determined by using the “operative
facts” or “same transaction” test. In re Matter of Energy Co-
op., Inc., 

, 1230 (7th Cir. 1987). Under this
formulation, a cause of action consists of “a core of opera-
tive facts which give rise to a remedy.” 

judicata also prevents a party from “splitting a single
cause of action [or] . . . using . . . several theories of re-
covery as the basis for separate suits.” Shaver v. F.W.
Woolworth Co., 

, 1365 (7th Cir. 1988); see also

(noting that this “prevents
vexatious litigation”). The doctrine of res judicata mini-
mizes “the expense and vexation attending multiple



3
  (...continued)
however, Mr. Alvear-Velez conceded that this argument was
foreclosed by our decisions in Valere v. Gonzales, 

(7th Cir. 2007), and Zamora-Mallari v. Mukasey, 

(7th
Cir. 2008). Accordingly, we shall not discuss these arguments.
8                                                  No. 07-2133

lawsuits, conserves judicial resources, and fosters reli-
ance on judicial action by minimizing the possibility of
inconsistent decisions.” Montana v. United States, 

, 153-54 (1979).
  As a general matter, res judicata applies to administra-
tive hearings if “the administrative agency is acting in a
judicial capacity and resolves disputed issues of fact
properly before it where the parties have had an adequate
opportunity to litigate.” United States v. Utah Constr. &
Mining Co., 

, 422 (1966); see also Astoria Fed. Sav.
& Loan Ass’n v. Solimino, 

, 107-08 (1991). Also,
and more specifically, res judicata applies to the “adjudi-
cation of petitions for relief in immigration courts.”
Hamdan v. Gonzales, 

, 1059 (7th Cir. 2005); see
also Medina v. INS, 

, 503-04 (5th Cir. 1993);
Matter of Barragan-Garibay, 15 I. & N. Dec. 77, 78-79 (BIA
1974). Notably, however, we have applied res judicata
much more flexibly in the administrative context. Int’l
Harvester Co. v. OSHA, 

, 986 (7th Cir. 1980)
(“This court does not adhere to a rigid view of the doctrine
in the administrative context.”); see also Collins v. Pond Creek
Mining Co., 

, 229 n.3 (4th Cir. 2006) (“[R]es
judicata of administrative decisions is not encrusted with
rigid finality that characterizes the precept in judicial
proceedings.”); Bravo-Pedroza v. Gonzales, 

,
1359 (9th Cir. 2007); Sharp Kabushiki Kaisha v. Thinksharp,
Inc., 

, 1372 (Fed. Cir. 2006); Facchiano v.
U.S. Dep’t of Labor, 

, 1167 (3d Cir. 1988).
  In United States v. Fisher, 

(7th Cir. 1988), for
example, the Environmental Protection Agency (“EPA”)
No. 07-2133                                               9

had entered into a consent decree with respect to a
large tract of land in northern Indiana used for the recla-
mation of solvents. Several years later, and after Congress
had amended the relevant environmental statute to
create new avenues of action, the EPA brought a new
suit rather than seeking to modify the consent decree.
We explained that, under res judicata, consent decrees
normally prevent a new “lawsuit arising from the same
dispute that underlay the litigation in which the decree
was entered.” 

Under the circumstances of the
case, however, and given the statutory change in the
interim, we held that the EPA was justified in com-
mencing a new action:
      The Superfund amendments under which the present
      suit was filed were enacted four years after the con-
      sent decree was signed. The amendments direct the
      EPA in no uncertain terms to take peremptory steps
      to protect the public health. The EPA has no authority
      to refuse to enforce the statute just because its
      staff made commitments before Congress spoke.

suggests, in determining whether the doc-
trine of res judicata should be applied with less rigidity
than usual, courts have placed great weight on the
identity of the institution of government responsible for
the change in law. Notably, although changes in case
law almost never provide a justification for instituting a
new action arising from the same dispute that already
has been litigated to a final judgment, statutory
changes that occur after the previous litigation has con-
10                                              No. 07-2133

cluded may justify a new action. Federated Dep’t Stores, Inc.
v. Moitie, 

, 398-99 (1981); 

; 18 James Wm. Moore et al., Moore’s Federal Practice,
¶ 131.22[3] (3d ed. 1999) (noting that “[p]assage of a new
statute will not per se create grounds for a new claim,” but,
“when a new statute provides an independent basis
for relief which did not exist at the time of the prior
action, a second action based on the new statute may be
justified.”). Compare 

(holding
that considerations of fairness and equity do not vitiate
the res judicata effect of a previous, unappealed judg-
ment, even if that judgment “rest[s] on a legal principle
subsequently overruled in another case”), with Astoria
Fed. Sav. & Loan 

(noting that
Congress may abrogate res judicata implicitly in the
administrative context if the doctrine’s application
would contravene a statutory purpose).
  Additionally, the rule against claim splitting, which is
one component of res judicata, is inapplicable when a
statutory change creates a course of action unavailable
in the previous action. Cf. Car Carriers, Inc. v. Ford Motor
Co., 

, 593-94 (7th Cir. 1986) (“[P]rior litiga-
tion acts as a bar not only to those issues which were
raised and decided in the earlier litigation but also to
those issues which could have been raised in that litiga-
tion.” (emphasis in original)); see also Wedow v. City of
Kansas City, Mo., 

, 669 (8th Cir. 2006) (noting
that the rule against claim splitting “does not apply to
claims that did not exist when the first suit was filed”).
Indeed, courts consistently have refused to apply res
judicata to preclude a second suit that is based on a claim
No. 07-2133                                                           11

that could not have been asserted in the first suit. See
Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 

, 38 (1st Cir. 1998) (“Of course, res judicata will
not attach if the claim asserted in the second suit could
not have been asserted in the first.”).4


4
   See also Computer Assoc. Int’l, Inc. v. Altai, Inc., 

, 370
(2d Cir. 1997) (“Even where a second action arises from some
of the same factual circumstances that gave rise to a prior action,
res judicata is inapplicable if formal jurisdictional or statutory
barriers precluded the plaintiff from asserting its claims in the
first action.”); Clark v. Bear Stearns & Co., 

, 1321 (9th
Cir. 1992) (“If a claim could not have been asserted in prior
litigation, no interests are served by precluding that claim in
later litigation.”); Kale v. Combined Ins. Co., 

, 1167
(1st Cir. 1991) (“In general, the rule requiring all claims arising
from a single cause of action to be asserted in a single law-
suit will not apply if the plaintiff was unable to assert a particu-
lar claim or theory in the original case ‘because of the limitations
on the subject matter jurisdiction of the courts.’ ” (quoting
Restatement (Second) of Judgments § 26(1)(c) (1982))); Browning
v. Navarro, 

, 558 (5th Cir. 1989) (“It is black-letter
law that a claim is not barred by res judicata if it could not have
been brought. If the court rendering judgment lacked sub-
ject-matter jurisdiction over a claim or if the procedural rules
of the court made it impossible to raise a claim, then it is not
precluded.”); 18 Wright, Miller & Cooper, Federal Practice
and Procedure § 4412, at 276 (2d ed. 2002) (“Limitations on
the jurisdiction or the nature of the proceedings brought in a
first court may justify relaxation of the general requirement
that all parts of a single claim or cause of action be advanced.”).
  It is worth noting, however, that the “argument that it was not
possible to bring all related theories of recovery or demands
                                                   (continued...)
12                                                  No. 07-2133

   In the present case, when the immigration authorities
first sought to deport Mr. Alvear-Velez based on his 1993
Illinois conviction for sexual assault, they had to rely
on the ground that he had been convicted of a crime
involving moral turpitude within five years of entry, A.R.
at 247 (noting that Mr. Alvear-Velez was charged as
deportable under 8 U.S.C. § 1251(a)(2)(A)(i)); at the time
that this earlier deportation proceeding was instituted,
Mr. Alvear-Velez’s conviction for sexual assault did not
qualify as an aggravated felony, see 8 U.S.C. § 1101(a)(43)
(1995). In 1996, however, Congress amended the statutory
definition of aggravated felony, another ground for
removal, to include sexual abuse of a minor, and it specifi-
cally applied that new definition retroactively “regardless”
of how long ago the “conviction was entered.” IIRIRA,
§§ 321(a)(1) & (b), 110 Stat. at 3009-628 (codified at 8
U.S.C. § 1101(a)(43)(A)); Flores-Leon v. INS, 

,
439 (7th Cir. 2001) (holding that “Congress has clearly
manifested an intent to apply the amended definition
of ‘aggravated felony’ retroactively”). After the passage
of IIRIRA, therefore, Mr. Alvear-Velez’s 1993 Illinois
conviction for sexual assault did qualify as an aggravated
felony. Consequently, Congress provided the immigra-



4
   (...continued)
for relief in a first action may not overcome a claim-preclusion
defense if the plaintiff could have made it possible.” 18 Wright,
Miller & Cooper, supra, § 4409, at 246 (emphasis added); see also
Supporters to Oppose Pollution, Inc. v. Heritage Group, 

, 1326-27 (7th Cir. 1992) (noting that the exception to this
rule does not extend to situations where the “claim-splitting
flows from the plaintiff’s choice”).
No. 07-2133                                                 13

tion authorities with a new ground upon which to
institute removal proceedings—a ground that had not
been available when the immigration authorities had
first sought to deport Mr. Alvear-Velez.
   Under these circumstances, the two immigration pro-
ceedings cannot be said to share an “identity of the cause
of action,” a required element of res judicata. See

. We have defined “identity of
the cause of action” as “a core of operative facts which give
rise to a remedy.” In re Matter of Energy Co-op., 

. Although the immigration proceeding at
issue here is based upon Mr. Alvear-Velez’s 1993 con-
viction, the same conviction on which his 1994 deporta-
tion proceeding was based, the ground that the immigra-
tion authorities now invoke was unavailable to them in
the first proceeding and therefore could not have been
asserted. See Ripplin Shoals Land Co., LLC v. U.S. Army Corps
of Eng’rs, 

, 1042 (8th Cir. 2006) (“[R]es judicata
does not apply to claims that did not exist when the first
suit was filed.” (citing Lundquist v. Rice Mem’l Hosp., 

, 977 (8th Cir. 2001))); see also Comm’r v. Sunnen, 

, 597-98 (1948) (“But where the second action
between the same parties is upon a different cause or
demand, the principle of res judicata is applied much
more narrowly.”). As we have noted, courts consistently
have refused to apply res judicata to preclude a second
suit that is based on a claim that could not have been
asserted in the first suit. See cases cited supra note 4 and
accompanying text.
  Moreover, two circumstances require a less rigid ap-
plication of res judicata in this case. The relevant change
14                                               No. 07-2133

in the law here is statutory in nature, as opposed to a
change in case law, and that change is being applied in
the administrative context. See 

;
18 Moore, supra, ¶ 131.22[3] (acknowledging that a new
statute may justify institution of a subsequent action); see
also 

n.3 (“[R]es judicata of adminis-
trative decisions is not encrusted with rigid finality that
characterizes the precept in judicial proceedings.”);
Int’l 

(“This court does not adhere
to a rigid view of the doctrine in the administrative con-
text.”).
  Finally, we note that the application of res judicata
under these circumstances would be inconsistent with
IIRIRA’s statutory scheme and therefore would frustrate
Congress’ policy decision that aliens convicted of sexual
abuse of a minor merit removal regardless of when their
convictions occurred. See 8 U.S.C. § 1101(a)(43). Several of
our sister circuits have suggested a similar approach. In
Tran v. Gonzales, the Sixth Circuit concluded that the
immigration authorities could institute new removal
proceedings based on “convictions that were previously
the subject of closed deportation proceedings.” 

, 939 (6th Cir. 2006). Under IIRIRA’s amended defini-
tion of aggravated felony, the alien became “subject to
removal proceedings on an entirely different charge,” and
therefore it did not matter that the same conviction
had been the subject of the previous deportation pro-
ceeding. 

see also Channer v. Dep’t of Homeland
Sec., 

, 280 n.4 (2d Cir. 2008) (“It may be that
when DHS attempts to remove aliens convicted of aggra-
vated felonies—as opposed to aliens falling into some
other category making them removable—the determina-
No. 07-2133                                                  15

tion of whether res judicata applies changes, given Con-
gress’s clear and emphatic position with respect to such
aliens.”).
  Similarly, in Lopez-Bazante v. Gonzales, 237 Fed. App’x
131, 134 (9th Cir. 2007) (unpublished),5 the INS brought
deportation proceedings against Lopez-Bazante, an
individual who had been convicted of sexual abuse of a
minor, alleging that he was deportable because he stood
convicted of a crime of moral turpitude; the deportation
proceedings were terminated, and the INS failed to
appeal the IJ’s decision. In 2002, after IIRIRA expanded
the definition of aggravated felony to include sexual
abuse of a minor, the INS again brought removal proceed-
ings against Lopez-Bazante alleging that he had been
convicted of an aggravated felony. He appealed the
BIA’s decision that res judicata was inapplicable, but the
Ninth Circuit rejected that submission. The court ex-
plained that res judicata was inapplicable because
    the government could not have taken advantage of
    [IIRIRA’s] expanded definition of aggravated felonies,
    which included sexual abuse of a minor, to deport
    Petitioner. The government’s inaction in challenging
    the IJ’s 1995 termination of deportation proceedings
    based on Petitioner’s alleged crimes involving moral
    turpitude may have resulted in a final judgment with
    respect to the 1994 second degree rape and sodomy


5
  Ninth Cir. R. 36-3(b) (“Unpublished dispositions and orders
of this Court issued on or after January 1, 2007 may be cited to
the courts of this circuit in accordance with Fed. R. App. P.
32.1.”). Lopez-Bazante was decided on April 20, 2007.
16                                               No. 07-2133

      convictions as crimes involving moral turpitude.
      Under IIRIRA, however, the situation was altered
      where the expanded class of crimes that qualify as
      aggravated felonies swept Petitioner’s 1994 convic-
      tions in the new grounds for removal. Therefore, the
      import of the 1994 convictions, as a factual basis for
      removability, can be relitigated.

marks and citations omitted)
(footnote omitted).
   The First Circuit also has suggested a similar result
under these circumstances. In Dalombo Fontes v. Gonzales,
the BIA similarly refused to apply res judicata “because the
statutory definition of aggravated felony extant at the
time of Fontes’s prior removal proceedings was different
and far narrower.” 

, 2 (1st Cir. 2007). Although
it concluded that it did not have jurisdiction to consider
the res judicata argument, it nevertheless expressed
agreement with the BIA’s decision. The First Circuit
explained:
      We think that the BIA correctly refused to terminate
      Fontes’s removal proceedings in light of the clear
      congressional intent that its broadened definition of
      aggravated felony be applied retroactively. The gov-
      ernment still had to prove that Fontes’s conviction
      met the new definition of aggravated felony. It was
      neither an error of law nor an abuse of discretion for
      the BIA, to whom some deference on interpretation
      of immigration statutes is owed, not to accept Fontes’s
      claim that res judicata barred any further proceedings
      by the government.

                                             17

  Thus, we must conclude that res judicata does not bar
the present removal effort by the DHS. We emphasize
that our holding is limited to the peculiar circumstances
before us—the res judicata effect of an administrative
final judgment rendered prior to a congressional decision
to expand the avenues of relief available and to make
those additional avenues of relief retroactive.


                            B.
  Mr. Alvear-Velez next contends that the immigration
authorities violated IIRIRA’s transitional rules by charging
him as being removable based on the same criminal
conviction for which he previously was found to be not
deportable. Under IIRIRA § 309(c)(1), contends Mr. Alvear-
Velez, an alien who was in exclusion or deportation
proceedings as of IIRIRA’s effective date was not subject
to IIRIRA’s amendments, and the proceedings were to be
conducted without regard to those amendments. He
notes that, at the time of IIRIRA’s effective date, his
deportation proceedings had been terminated for more
than two years. According to Mr. Alvear-Velez, Congress’
stated intention not to subject IIRIRA’s amendments to
individuals pending in deportation proceedings during
the transitional phase must be read as a concomitant in-
tention not to apply IIRIRA’s amendments to individuals
whose deportation proceedings already were final.
  We cannot accept Mr. Alvear-Velez’s contention. We
begin by setting forth the IIRIRA provisions on which
Mr. Alvear-Velez’s argument relies:
18                                                  No. 07-2133

     (a) IN GENERAL.—Except as provided in this section
     and sections 303(b)(2), 306(c), 308(d)(2)(D), or 308(d)(5)
     of this division, this subtitle and the amendments
     made by this subtitle shall take effect on the first day
     of the first month beginning more than 180 days after
     the date of the enactment of this Act (in this title
     referred to as the “title III-A effective date”).
     (b) PROMULGATION OF REGULATIONS.—The
     Attorney General shall first promulgate regulations to
     carry out this subtitle by not later than 30 days before
     the title III-A effective date.
     (c) TRANSITION FOR ALIENS IN PROCEEDINGS.—
         (1) GENERAL RULE THAT NEW RULES DO NOT
         APPLY.—Subject to the succeeding provisions of
         this subsection, in the case of an alien who is in
         exclusion or deportation proceedings as of the title
         III-A effective date—
           (A) the amendments made by this subtitle shall
           not apply, and
           (B) the proceedings (including judicial review
           thereof) shall continue to be conducted without
           regard to such amendments.
IIRIRA §§ 309(a)-(c). As evident from the statutory lan-
guage, the transitional rules on which Mr. Alvear-Velez
relies, by their own terms, apply only to “the amendments
made by this subtitle.” 

see also 

That subtitle is subtitle A, which revised the procedures
for the removal of aliens. See 

(“Title
III-A of the IIRIRA streamlined the removal process for
criminal aliens by mandating detention pending
No. 07-2133                                                  19

removal proceedings, eliminating the principal forms
of relief from deportation, eliminating direct judicial
review, and mandating that the Attorney General shall
remove aliens within 90 days.”).
  The amended and retroactive definition of aggravated
felony, see IIRIRA §§ 321(a)-(b), by contrast, is set forth in
subtitle B, entitled “Criminal Alien Provisions,” and
contains its own effective date, see IIRIRA § 321(c). Section
321(c) states: “The amendments made by this section
shall apply to actions taken on or after the date of enact-
ment of this Act [September 30, 1996], regardless of when
the conviction occurred . . . .” See also 

.
Accordingly, the transitional rules, by their own terms,
apply only to the procedures for removing aliens, rather
than to the substantive changes to the definition of aggra-
vated felony. Consequently, the DHS did not violate
IIRIRA’s transitional rules when it commenced removal
proceedings against Mr. Alvear-Velez based on his 1993
conviction.
  There is no dispute in this case that the removal charges
against Mr. Alvear-Velez constitute, under IIRIRA § 321(c),
an “action taken” on or after the date of enactment of
IIRIRA, September 30, 1996. These proceedings were
instituted in 1999, and, therefore, the amended and retro-
active definition of aggravated felony was applied properly
to his 1993 Illinois conviction. See, e.g., 

, 940-41.6


6
  As we noted earlier, Mr. Alvear-Velez makes two other
arguments. Neither requires extended discussion. Mr. Alvear-
                                               (continued...)
20                                                  No. 07-2133



6
   (...continued)
Velez contends that the immigration authorities, rather than
filing new removal proceedings in 1999, could have filed on or
before September 30, 1996, a motion to reopen his original
deportation proceedings, under 8 C.F.R. § 1003.23(b)(1). Because
the immigration authorities did not do so, he submits, the
new proceedings should have been terminated. Although Mr.
Alvear-Velez is correct that this option was available to the
immigration authorities, nothing in regulation section
1003.23(b)(1) suggests that this was the immigration authorities’
only manner of proceeding. Cf. 

&
n.6 (rejecting a similar argument made under 8 C.F.R. § 1003.30
because the “regulation permits but does not affirmatively
require DHS to supplement already existing charges”).
  Mr. Alvear-Velez’s final contention is that the present re-
moval proceedings violate his substantive due process rights
under the Fifth Amendment. He contends that “[s]ubstantive
due process offers protection against repeated litigation of the
same issue by an administrative agency.” Petitioner’s Br. at 22.
  Mr. Alvear-Velez has not presented a valid substantive due
process challenge to the DHS’ decision to institute removal
proceedings based on the same criminal conviction for which
he previously was found not to be deportable. In challenging
the decision of the DHS to institute these proceedings, Mr.
Alvear-Velez is challenging executive action. Therefore, to
succeed in his substantive due process claim, he must show that
the executive action is so egregious that it “shocks the con-
science.” See County of Sacramento v. Lewis, 

, 847
(1998) (explaining that “the substantive component of the Due
Process Clause is violated by executive action only when it
can properly be characterized as arbitrary, or conscience
shocking, in a constitutional sense.” (internal quotation marks
                                                   (continued...)
No. 07-2133                                                 21

                         Conclusion
  For the foregoing reasons, the petition for review is
denied.
                               P ETITION FOR R EVIEW D ENIED




6
  (...continued)
and citation omitted)). Here, the DHS merely instituted removal
proceedings based on a change in law that Congress itself made
retroactive. Far from being “egregious” or “conscience-shock-
ing,” the DHS’ action here was consistent with both the lan-
guage and intent of IIRIRA.



                             9-2-08