On Petition for Review of a Decision and Order of the Board of Immigration Appeals (BIA No. A30-114-908) Immigration Judge: Andrew R. Arthur.
The opinion of the court was delivered by: Chagares, Circuit Judge.
Before: AMBRO, CHAGARES, and GREENAWAY, JR., Circuit Judges.
Maurice Duhaney petitions for review of the April 22, 2008, decision by the Board of Immigration Appeals ("BIA"), finding Duhaney removable as an alien convicted of an aggravated felony under Immigration and Nationality Act ("INA") section 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). This order of removal was based on a 1985 conviction for criminal possession of a weapon in the second degree, which Duhaney contends the Government could have raised as a ground for removal during prior immigration proceedings. Having failed to charge him as deportable based on this conviction during the prior proceedings, he argues that the Government should have been precluded from doing so in subsequent proceedings. Duhaney also argues that the BIA committed procedural error and deprived him of the right to present arguments on his own behalf. For the reasons set forth below, we will deny the petition.
Duhaney was born in Jamaica on November 12, 1965. In 1973, at the age of seven, he was admitted to the United States as a lawful permanent resident and has resided in the United States ever since. On September 11, 1985, a jury convicted Duhaney of manslaughter in the second degree and criminal possession of a weapon in the second degree, based on the fatal shooting of Vincent Santiago, Jr. (the "1985 shooting convictions"). The jury acquitted Duhaney of murder in the second degree and manslaughter in the first degree. Duhaney was sentenced to consecutive terms of five to fifteen years for each conviction.
While Duhaney was awaiting trial for these charges, he was arrested and charged with possession of a controlled substance with the intent to sell. On October 1, 1985, Duhaney pled guilty to criminal sale of a controlled substance (the "1985 controlled substance conviction"). He was sentenced to one to three years in prison. Based on these three convictions, Duhaney remained incarcerated until 1995.
On June 24, 1986, the Immigration and Naturalization Service (INS) issued an Order to Show Cause (the "1986 OTSC") charging Duhaney as deportable pursuant to former INA section 241(a)(11), 8 U.S.C. § 1231(a)(1) (1986), based on the 1985 controlled substance conviction. Administrative Record ("A.R.") 910. The 1986 OTSC did not mention the 1985 shooting convictions. Id. In response to the 1986 OTSC, Duhaney submitted a Form I-191 requesting a waiver of deportation pursuant to former INA section 212(c) in September 1992. A.R. 905-06. In his application for a § 212(c) waiver, Duhaney disclosed all three convictions. A.R. 906.
In August 1993, an Immigration Judge ("IJ") held a hearing on Duhaney's request for a § 212(c) waiver. The IJ asked the INS attorney about the firearms conviction, and the INS attorney stated his belief that the since the OTSC was issued before March 1, 1991, the firearms conviction could not be used as a basis for deportability. A.R. 369. The INS attorney further noted, "I don't think we'd ever charge him, Judge, but the possibility exists that it could be charged in the future. I would hope that the Service doesn't do that." A.R. 370. The IJ commented he would "leave that for another day," although he expressed "real reservations about whether the Service could do that," as the issue presented a "res judicata question." Id. The IJ accepted the INS attorney's representation that these other convictions did not render him statutorily ineligible for a § 212(c) waiver. Id. In the oral decision granting Duhaney's request for a waiver, the IJ first noted that Duhaney had admitted the allegations in the OTSC and conceded that he was deportable. A.R. 377. The IJ discussed both the 1985 substance abuse conviction cited in the OTSC and the 1985 shooting convictions, noting that the manslaughter conviction amounted to a crime involving moral turpitude. A.R. 383-84 (citing In re Wojtkow, 18 I. & N. Dec. 8411 (BIA 1981)). The Government elected not to appeal, and these first deportation proceedings were terminated on August 20, 1993. A.R. 425.
On March 24, 2000, Duhaney pled guilty to criminal possession of a controlled substance in the third degree (the "2000 conviction"). On March 25, 2004, the Government issued a Notice to Appear (NTA) charging that the 2000 conviction rendered him removable on two grounds: (1) as a conviction for a crime relating to a controlled substance under INA section 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i); and (2) as a conviction of an aggravated felony under INA section 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), which is defined to include a drug trafficking crime under INA section 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (the "2004 NTA"). A.R. 931. In October 2004, an IJ ordered Duhaney removed based on the 2000 conviction. A.R. 746-48. In January 2005, the BIA affirmed this removal order, making it the final agency determination (the "2005 removal order" or the "2005 removal proceedings"). A.R. 752.
On August 9, 2006, the New York Supreme Court vacated the 2000 conviction and dismissed the indictment with prejudice. A.R. 440. Thereafter, Duhaney filed a pro se motion with the BIA to reopen and terminate the 2005 removal proceedings; the BIA received the motion on December 4, 2006.*fn1 A.R. 695-706. On December 5, 2006, the Government also moved to reopen the 2005 removal proceedings. A.R. 688-90. The Government's motion acknowledged that Duhaney was no longer removable based on the now-vacated 2000 conviction, but the motion stated the Government's belief that Duhaney "may be removable . . . on the basis of other, separate and distinct criminal convictions." A.R. 690. The Government requested that the BIA "remand this matter to the Immigration Court so that it may reopen and terminate the aforementioned Removal Proceedings . . . and rescind the aforementioned Order of Removal." Id. The Government's motion also included the following caveat: "all of the foregoing without prejudice against the initiation of any new removal proceedings, so that DHS-ICE may prepare and file a new NTA against the Respondent." Id.
Duhaney claims that he did not receive the Government's motion. Throughout this time period, Duhaney was in the Government's custody. On November 17, 2006, the Government transferred Duhaney from a detention facility in New York to a correctional center in Pennsylvania. Duhaney's motion included a cover letter listing his address as the Pennsylvania facility, A.R. 695, but the BIA's filing receipt lists his address as the New York facility, A.R. 693. The Government served its motion by sending it via first class mail to the New York facility. A.R. 690.
On January 17, 2007, the BIA granted the parties' motions to reopen and remanded the matter to the Immigration Court for further proceedings. A.R. 617. On March 6, 2007, the Government filed a Form I-261, lodging additional charges of removability against Duhaney (the "2007 Form").*fn2 A.R. 600-01. Specifically, the 2007 Form charged Duhaney with removability pursuant to: INA section 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C), based on his conviction for a firearms offense; INA section 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), based on his convictions for two crimes of moral turpitude; and INA section 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), based on his conviction for an aggravated felony. A.R. 600. The 2007 Form detailed his 1985 manslaughter, firearms possession, and sale of a controlled substance convictions; reported that his 2000 conviction had been vacated; and acknowledged that he had been granted a § 212(c) waiver based on an application that listed all three 1985 convictions. A.R. 600-01.
In response, Duhaney filed a motion to terminate the removal proceedings. A.R. 503-09. Duhaney argued, inter alia, that DHS failed to provide him notice of its motion to reopen, that the BIA erred by remanding the case to the IJ rather than simply terminating the removal proceedings, and that the Government was barred by collateral estoppel and res judicata from charging grounds of removability that it could have charged during the prior proceedings that were closed in 1993 and 2005. A.R. 504-08.
On November 5, 2007, the IJ denied Duhaney's motion to terminate. A.R. 444-52. The IJ noted that collateral estoppel and res judicata apply generally to immigration proceedings, but that neither doctrine precluded DHS from alleging new grounds for removability in this case. A.R. 449. The IJ concluded that "[u]nder the INA as it was applied when [Duhaney] was granted a waiver under section 212(c) . . . , the former INS could not have charged [him] with removal as an alien convicted of an aggravated felony," because the aggravated felony provisions of the Immigration Act of 1990 did not apply retroactively until the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 was enacted. A.R. 450. Based on this "material intervening change in the governing law," the IJ found that "neither res judicata nor collateral estoppel would bar DHS's prosecution of removal proceedings based on his 1985 weapon conviction." A.R. 451. The IJ also determined that Duhaney's § 212(c) waiver applied only to the basis for removability alleged at that time, and not to a basis for removability -- Duhaney's conviction of an aggravated felony -- that did not even exist at the time. A.R. 451.
On December 20, 2007, the IJ ordered Duhaney removed to Jamaica based on the three grounds added by the 2007 Form. A.R. 58-63. Duhaney appealed the IJ's decision, A.R. 9-29, and on April 22, 2008, the BIA affirmed the removal order, A.R. 2-6. The BIA rejected Duhaney's arguments that it erred by remanding the case to the IJ, that Duhaney's due process rights were violated by his failure to receive notice of the Government's motion, and that collateral estoppel and res judicata barred the Government ...