Cospito v. Att'y Gen'l (3d Cir. 8/14/08)

PER CURIAM Fuentes Aldisert Garth

The 3d Cir found that the attempted "question of law" in failing to properly analyze evidence in waiver case was more factual than legal, and found no jurisdiction to consider it under 1252(a)(2)(D).

Petitioner also raised issue of collateral estoppel, because INS had adjudicated adjustment when it knew or should have known of past convictions. CtApp found the issue a question of law, but refused to apply because adjustment interview wasn't an adversarial hearing which could give rise to estoppel.  Accord, Andrade v. Gonzales, 459 F.3d 538, 545 (5th Cir. 2006). Also, waiver issue wasn't litigated before INS (since crimes weren't disclosed), and fraud prevented full litigation. Accord Pereira-Barbeira v. INS, 523 F.2d 503, 507 n. 3 (2d Cir. 1975) (“The fraud on the basis of which [a petitioner] was granted ... adjustment of status necessarily vitiated any res judicata effect of those proceedings in the current deportation proceedings.”).

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