Initially docketed as an Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 04-cv-03483) District Judge: Honorable Michael M. Baylson. Converted to a Petition for Review from the Board of Immigration Appeals Pursuant to the Real ID Act of 2005 (Board No. A 71 041 214) Immigration Judge Walt Durling.
The opinion of the court was delivered by: Fisher, Circuit Judge.
Before: RENDELL, FISHER and GREENBERG, Circuit Judges.
We must decide in this case whether a litigation error by the Immigration and Naturalization Service, resulting in an adverse determination on the issue of alienage during deportation proceedings, precludes the government from thereafter seeking to remove the alien based on subsequent criminal acts. We conclude that it does not.
Andrea Patricia Duvall is a native and citizen of Jamaica. She entered this country on a valid tourist visa in 1987, as a "visitor for pleasure." She later married a United States citizen and applied for adjustment of status to lawful permanent resident. Her request was granted, and she became a permanent resident in 1993.
Her days in this country were not all tourism and romance, however. Between 1987 and 1993, Duvall committed a series of retail thefts and petty larcenies in New Jersey, New York, and Pennsylvania. These transgressions resulted in numerous arrests and eleven convictions by state authorities.
Soon thereafter, the INS initiated deportation proceedings against Duvall. She was charged as an alien subject to deportation based on convictions of crimes involving moral turpitude, 8 U.S.C. § 1227(a)(2)(A)(ii). A hearing was held before an immigration judge on November 16, 1993.
The sole witness called by the INS was Duvall. Counsel for the government asked her to confirm her place of birth and citizenship. She refused. She asserted a privilege against selfincrimination under the Fifth Amendment and would neither confirm nor deny any of the allegations in the order to show cause.*fn2
The INS was caught off guard by this maneuver. Counsel sought to introduce into evidence Duvall's application for adjustment of status, in which she admitted to being a native and citizen of Jamaica; however, the document was ruled inadmissible for noncompliance with local rules requiring submission of evidence at least ten days before the hearing. The INS had no other means by which to prove Duvall's alienage, and rested its case. Predictably, the immigration judge found that there was not "clear, unequivocal, and convincing evidence" to establish alienage. He accordingly terminated the proceedings.
The INS sought review of the decision by the Board of Immigration Appeals, but subsequently withdrew the appeal, for reasons that are not explained in the record. The decision of the immigration judge, terminating the proceedings, remains the dispositive order in the case.
The brush with deportation did not deter Duvall. She continued her criminal exploits and was convicted twice, in 1995 and 2001, of felony retail theft under Pennsylvania law. While incarcerated, Duvall was interviewed by an INS official. She admitted in a sworn statement that she was a citizen of Jamaica and an alien in this country.
Within days of this admission, the INS again initiated deportation proceedings against Duvall. She was charged, based on her encounters with law enforcement in 1995 and 2001, as an alien subject to removal for convictions of an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii), and crimes involving moral turpitude, 8 U.S.C. § 1227(a)(2)(A)(ii).
Removal proceedings were terminated in June 2001. The presiding immigration judge, on motion of Duvall's counsel, held that the INS was collaterally estopped from relitigating the issue of alienage because it had enjoyed a full and fair opportunity to litigate the matter in the 1993 proceedings. The INS, the judge held, was bound by the ...