Aioub v. Mukasey (7th Cir. 8/29/08)

KANNE Easterbrook Wood

The 7th Cir found no abuse of discretion where asylum denied on discretion due to past marriage fraud - even if there was "more" than just money. (Basis of asylum was conversion to Christianity, threatened with removal to Bangladesh. But he could relocate to big city and not tell anyone that he converted.)

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Alvear-Velez v. Mukasey (7th Cir. 9/2/08)

RIPPLE Cudahy Rovner

The respondent was charged in 1993 with a CIMT for sexual abuse of a minor, but IJ terminated because no 1-year jail sentence. ICE filed new NTA in 1998, charging him with removability as AggFel. BIA held that charges not barred by res judicata. 7th Cir affirmed. Res judicata does apply in imm context, citing Hamdan v. Gonzales, 425 F.3d 1051, 1059 (7th Cir. 2005); see also Medina v. INS, 993 F.2d 499, 503-04 (5th Cir. 1993); Matter of Barragan-Garibay, 15 I. & N. Dec. 77, 78-79 (BIA 1974). But sometimes more flexibly applied.

1. While new case law doesn't overcome res judicata, new statute does:

[A]lthough 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 concluded may justify a new action. Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398-99 (1981); Fisher, 864 F.2d at 439; 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 Moitie, 452 U.S. at 398-99 (holding that considerations of fairness and equity do not vitiate the res judicata effect of a previous, unappealed judgment, even if that judgment “rest[s] on a legal principle subsequently overruled in another case”), with Astoria Fed. Sav. & Loan Ass’n, 501 U.S. at 107-08 (noting that Congress may abrogate res judicata implicitly in the administrative context if the doctrine’s application would contravene a statutory purpose).

2.  Rule against claim-splitting (which usually requires that Govt charge all possible grounds in initial action) doesn't apply where statute changes.

Although the immigration proceeding at issue here is based upon Mr. Alvear-Velez’s 1993 conviction, the same conviction on which his 1994 deportation proceeding was based, the ground that the immigration 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, 440 F.3d 1038, 1042 (8th Cir. 2006) (“[R]es judicata does not apply to claims that did not exist when the first suit was filed.”

3.  Res judicata would frustrate Congressional intent in IIRIRA, b.c Congress wanted it to be retroactive. Tran v. Gonzales, 447 F.3d 937, 939 (6th Cir. 2006); Channer v. Dep’t of Homeland Sec., 527 F.3d 275, 280 n.4 (2d Cir. 2008) (“It may be that when DHS attempts to remove aliens convicted of aggravated felonies—as opposed to aliens falling into some other category making them removable—the determination of whether res judicata applies changes, given Congress’s clear and emphatic position with respect to such aliens.”); Dalombo Fontes v. Gonzales, 498 F.3d 1, 2 (1st Cir. 2007).

4.  Rejected argument that IIRIRA 309's effective date provisions precluded retroactive application, noting that they applied only to subtitle A of IIRIRA, whereas the amendments to the AggFel definition were in subtitle B.

5.  In fn, rejected substantive due process args against repeated litigation to remove Petitioner:

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 conscience.” See County of Sacramento v. Lewis, 523 U.S. 833, 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 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-shocking,” the DHS’ action here was consistent with both the language and intent of IIRIRA.

[CR - This arg may not have been well-developed as an argument, but it seems a closer call than the CtApp makes it out. It would seem like ex post facto is already somewhat problematic constitutionally, even from an administrative standpoint. Though it would be somewhat hard to distinguish this from every other case where the immigration law is applied retroactively...]

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Vaca-Tellez v. Mukasey (7th Cir. 9/2/08)

ROVNER Posner Kanne

The 7th Cir held that burglary of an automobile with intent to commit theft therein is an attempted theft offense, and an aggravated felony - as previously held in United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. 2001).

No matter that Martinez-Garcia was in the criminal context:

We see no reason to treat the meaning of “attempted theft offense” differently in the immigration context than in the sentencing context, and we are therefore bound by the holding of Martinez-Garcia. See United States v. Matamoros-Modesta, 523 F.3d 260, 264-65 (4th Cir. 2008) (finding that the term “aggravated felony” holds the same meaning in the criminal sentencing context as it does in the immigration setting); United States v. Figueroa- Ocampo, 494 F.3d 1211, 1216 (9th Cir. 2007) (same).

(Also rejected arguments that the record of conviction was unclear.)

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Ndonyi v. Mukasey (7th Cir. 9/2/08)

KANNE Posner Sykes

The IJ and BIA initially denied this Cameroonian asylum for lack of credibility, with an alternate denial based on nexus - but after the Govt moved for remand from the CtApp, the BIA denied only on the basis of nexus. The Board held that she hadn't shown that being arrested at a political rally (and then raped) was on account of her politics; nor that being arrested with her family due to a religious conflict with local authorities was for religious reasons. The CtApp made short shrift of this: "the BIA completely ignored the doctrine of mixed motives—the opinion does not analyze whether Ndonyi’s oppressors were partially motivated by politics or religion, and makes no mention of any of our precedent on the issue." The CtApp called the agency reasoning "radically deficient," and said that it didn't see how a student protest against discrimination against Anglophones could be apolitical. Also, BIA didn't shift burden to Govt to show that internal relocation was possible. Reversed.

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