REVISED January 8, 2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60212

MIGUEL ANGEL CHAVEZ-MERCADO, 

 Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL, 

 Respondent

Petition for Review of an Order of the 

Board of Immigration Appeals

Before OWEN, Chief Judge, and DENNIS and SOUTHWICK, Circuit Judges.

JAMES L. DENNIS, Circuit Judge:

Miguel Angel Chavez-Mercado (Chavez), a native and citizen of Mexico, 

seeks review of a Board of Immigration Appeals (BIA) order dismissing an 

appeal from an Immigration Judge’s (IJ) denial of his motion to terminate 

removal proceedings and order of removal. We DENY the petition for review 

in part and DISMISS in part for lack of jurisdiction.

I

Chavez entered the United States illegally in 1999 and adjusted to 

permanent resident status in 2005. On December 8, 2014, he was convicted of 

the Texas offenses of evading arrest with a motor vehicle under Tex. Penal 

Code § 38.04(b)(2)(a), Case No. CR-14-0083, and burglary of a habitation under 

United States Court of Appeals

Fifth Circuit

FILED

January 6, 2020

Lyle W. Cayce

Clerk

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Tex. Penal Code § 30.02(c)(2), Case No. CR-14-0084, Chavez was sentenced to 

a four-year prison term in each case, to run concurrently. 

In June 2015, while in Texas state custody, the Department of Homeland 

Security (DHS) served Chavez with a Notice to Appear (NTA) charging him 

with removability under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted 

of an aggravated felony; namely, a crime of violence, as defined under 18 U.S.C. 

§ 16(b), for which the term of imprisonment is at least one year. See 8 U.S.C. § 

1101(a)(43)(F). The sole conviction listed in the NTA was Chavez’s 2014

conviction for evading arrest with a vehicle. The IJ held that Chavez’s evading 

arrest conviction qualified as a crime of violence, and thus an aggravated 

felony, and ordered Chavez removed. However, the BIA terminated the 

proceedings against Chavez in light of our then-existing panel opinion in 

United States v. Gonzalez-Longoria, 813 F.3d 225 (5th Cir. 2016), which held

that § 16(b)’s definition of a crime of violence was unconstitutionally vague.1 

The BIA also noted that the DHS had not filed any other charge of removability 

or otherwise filed a brief in opposition to Chavez’s appeal. 

The DHS did not seek reconsideration of the BIA’s decision and instead 

issued a new NTA against Chavez based on his December 2014 conviction for 

burglary of a habitation, which it alleged was also an aggravated felony. This 

time, the DHS charged Chavez with removability under § 1227(a)(2)(A)(iii) for 

having been convicted of a “theft offense . . . or burglary offense” for which the 

term of imprisonment is at least one year. See § 1101(a)(43)(G). 

The IJ purportedly declined to decide whether the burglary conviction 

constituted a theft or burglary offense under § 1101(a)(43)(G), but determined 

 

1 The BIA dismissed the proceedings against Chavez despite our decision to rehear 

the case en banc. See Gonzalez-Longoria, 831 F.3d 670, 675 (5th Cir. 2016) (en banc) (holding 

that § 16(b) was not unconstitutionally vague). The Supreme Court later abrogated the 

Gonzalez-Longoria en banc court’s opinion, holding that § 16(b) was unconstitutionally 

vague. See Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018).

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that his burglary conviction qualified as a crime of violence under 

§ 1101(a)(43)(F) and that Chavez was therefore removable as an aggravated 

felon.2 Chavez argued that res judicata barred the DHS from initiating new 

charges against him based on an alleged aggravated felony conviction that 

existed at the time of his first removal proceedings. However, the IJ held that 

res judicata did not apply and ordered Chavez removed. In his appeal to the 

BIA, Chavez challenged only the IJ’s rejection of his res judicata argument. 

The BIA affirmed the IJ’s decision, concluding that Chavez’s removability 

based upon his burglary conviction had never been litigated and res judicata 

therefore did not apply. Chavez timely appealed. 

II

We generally review only the decision of the BIA. Zhu v. Gonzales, 493 

F.3d 588, 593 (5th Cir. 2007). However, “[w]hen, as here, the BIA affirms the 

immigration judge and relies on the reasons set forth in the immigration

judge’s decision, this court reviews the decision of the immigration judge as 

well as the decision of the BIA.” Ahmed v. Gonzales, 447 F.3d 433, 437 (5th 

Cir. 2006) (internal citations omitted). “We review factual findings of the BIA 

and IJ for substantial evidence, and questions of law de novo.” Zhu, 493 F.3d

at 594 (internal quotation marks and citations omitted). The res judicata effect 

of a prior judgment is a legal question that we review de novo. Test Masters 

Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005). The doctrine of 

res judicata applies to administrative adjudications in the immigration 

 

2 The IJ relied extensively on United States v. Uribe, 838 F.3d 667, 669 (5th Cir. 2016), 

which held that a conviction for burglary of a dwelling under most subsections of Texas Penal 

Code § 30.02 constituted general burglary and was thus a crime of violence. Though we later 

overruled Uribe sitting en banc in United States v. Herrold, 883 F.3d 517, 520 (5th Cir. 2018),

the Supreme Court’s decision in Quarles v. United States, 139 S. Ct. 1872 (2019), makes clear 

that Chavez’s conviction for burglary of a dwelling under § 30.02(c)(2) constitutes a crime of 

violence under § 1101(43)(F).

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context. Andrade v. Gonzales, 459 F.3d 538, 545 (5th Cir. 2006). Under the

doctrine, a valid final judgment precludes a second suit between the same 

parties on the same claim when there was an opportunity to reach the merits 

in the first litigation. Id.; see Medina v. I.N.S., 993 F.2d 499, 503 (5th Cir. 

1993).

III

The IJ determined that the issues in both removal proceedings against 

Chavez were different and, because whether Chavez’s burglary conviction 

rendered him removable had not been addressed in the prior proceeding, res

judicata did not apply.3 The BIA affirmed the IJ’s decision “for the reasons 

articulated” by the IJ and based on our precedent. 

Res judicata applies to bar a subsequent action when four elements are 

present: (1) both cases had the same parties; (2) a court of competent 

jurisdiction issued a judgment in the first case; (3) the first case was ended by 

way of a final judgment on the merits; and (4) both cases dealt with the same 

claim or cause of action. Test Masters, 428 F.3d at 571. Here, the parties agree 

that this appeal concerns only the fourth element: whether the first removal 

proceeding against Chavez involved the same claims or causes of action as the 

second removal proceeding. See id. Regarding the fourth element, the doctrine 

of res judicata holds that “a final judgment on the merits of an action precludes 

the parties or their privies from relitigating issues that were or could have been 

raised in that action.” Rhoades v. Penfold, 694 F.2d 1043, 1048 (5th Cir. 1983)

(quoting Allen v. McCurry, 449 U.S. 90 (1980)). However, res judicata has been 

limited in application “to issues of fact or law necessary to the decision in the 

 

3 The IJ noted, however, that res judicata would preclude the DHS from initiating 

subsequent removal proceedings against him based on his February 2015 conviction for 

evading arrest, as the issue of whether this constituted an aggravated felony was resolved in 

the prior proceedings. 

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prior judgment” or, in other words, to situations in which “the allegedly barred 

claim [arises] out of the same nucleus of operative facts involved in the prior 

litigation.” Id. (citing Southern Jam, Inc. v. Robinson, 675 F.2d 94, 96 (5th Cir.

1982)). 

Chavez argues that the BIA’s decision was erroneous for two reasons. 

First, he contends that the DHS knew of his burglary conviction when it 

brought the first proceedings, and its decision not to bring removal proceedings 

on that basis at that time barred it from doing so in subsequent litigation. 

However, while the DHS may have been aware of the December 2014 burglary 

conviction when it initiated the first proceeding against Chavez, the burglary 

conviction did not involve “issues of fact or law necessary to the decision in the 

prior judgment” involving Chavez’s evading arrest conviction, for reasons

explained below. See Rhoades, 694 F.2d at 1048.

Second, Chavez argues that his removal proceedings were both based on 

the same statutory provision, § 1227(a)(2)(A)(iii), and therefore the BIA erred 

by basing its reasoning in part on Peters v. Ashcroft, 383 F.3d 302, 305 n.2 (5th 

Cir. 2004), which involved charges of removability under two different 

statutory provisions. Although we have found res judicata inapplicable where 

subsequent removal proceedings were brought under a different statutory 

provision, see Peters, 383 F.3d at 305 n.2; Maringo v. Holder, 364 F. App’x 903 

(5th Cir. 2010), this does not necessarily mean that res judicata applies 

because two removal proceedings were brought under the same statutory 

provision. Though we have not yet had occasion to decide whether res judicata 

applies under these precise circumstances, we do so now.

We use a transactional test to determine whether two cases involve the 

same claim or cause of action and res judicata applies. See United States v. 

Davenport, 484 F.3d 321, 326 (5th Cir. 2007) (citing RESTATEMENT (SECOND)

OF JUDGMENTS, § 24); Test Masters, 428 F.3d at 571. As noted, the critical 

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question is “whether the two cases . . . are based on ‘the same nucleus of 

operative facts,’” rather than the type of relief requested or the substantive 

theories advanced. Davenport, 484 F.3d at 326; see Rhoades, 694 F.2d at 1048. 

The Second and Eighth Circuits have applied the transactional test in 

immigration cases and determined that res judicata did not apply under 

circumstances similar to those here. See Cabrera Cardona v. Holder, 754 F.3d 

528 (8th Cir. 2014); Channer v. Dep’t of Homeland Sec., 527 F.3d 275 (2d Cir. 

2008). 

In Cabrera Cardona, the petitioner was convicted of manslaughter and 

tampering with evidence arising from his actions on the same day, and the two 

crimes were charged in the same charging document. See 754 F.3d at 529. The 

DHS initiated removal proceedings based solely on the petitioner’s

manslaughter conviction, which it claimed was an aggravated felony; an IJ 

ordered the petitioner removed, but the BIA terminated the proceedings. Id. 

The DHS later filed a new charge of removability based on petitioner’s 

tampering-with-evidence offense. Id. Both the IJ and BIA held res judicata 

inapplicable, concluding that petitioner’s convictions for manslaughter and 

tampering-with-evidence were “different causes of action that [arose] out of 

different facts, require[d] different proof, and redress[ed] different wrongs.” Id. 

at 529–30. The Eighth Circuit, examining the elements of each crime and 

concluding that the Government would be required to present different 

evidence to prove each offense, held that the factual predicate of each crime 

was different and therefore res judicata did not apply. Id. at 530.

Similarly, in Channer, the petitioner was convicted of state and federal 

crimes arising out of two separate incidents: a federal charge of carrying a 

firearm during a drug trafficking crime and state charges of robbery in the first 

degree and conspiracy to commit robbery. See 527 F.3d at 277. The 

Immigration and Naturalization Services (INS) initially charged the petitioner

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as removable based solely on the federal conviction and, when the petitioner’s 

federal conviction was later vacated and his removal was terminated, the INS 

initiated new removal proceedings based on his state convictions. Id. at 277–

78. The Second Circuit held that res judicata did not apply to bar the second 

proceeding, concluding that the two proceedings involved different causes of 

action and “did not originate from the same nucleus of operative fact.” Id. at 

278–79, 281–82. The court reasoned, inter alia, that although the Government 

sought the same remedy in each proceeding—deportation for the commission 

of an aggravated felony—each conviction underlying the proceedings contained 

different elements and required different proof. Id. at 281.

Consistent with these opinions, we conclude that the convictions for 

evading arrest with a motor vehicle and burglary of a habitation underlying 

Chavez’s removal proceedings were not “based on the same nucleus of 

operative facts.” See Cabrera Cardona, 754 F.3d at 529; Channer, 527 F.3d at 

280; Davenport, 484 F.3d at 326. Chavez was convicted of both offenses on

December 8, 2014. However, his first offense of evading arrest with a motor 

vehicle occurred in November 2013. His second offense of burglary of a 

habitation occurred in March 2014. Moreover, each of Chavez’s offenses had 

distinct elements and required different proof for conviction. See Cabrera 

Cardona, 754 F.3d at 530; Channer, 527 F.3d at 281. His conviction for evading 

arrest with a motor vehicle was based on proof that he intentionally fled, using

a vehicle, from an officer attempting to lawfully arrest or detain him. By 

contrast, his conviction for burglary of a habitation required proof that he 

“intentionally or knowingly enter[ed] a habitation, without the effective 

consent of . . . the owner thereof, with intent to commit theft, and attempted to 

commit or committed a theft.” Although the DHS sought the same remedy in 

each proceeding—Chavez’s deportation for an aggravated felony—the 

operative facts underlying each conviction that formed the basis of removal

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were different. See Channer, 527 F.3d at 281; cf. Davenport, 484 F.3d at 326

(finding the operative facts in two cases identical because they were based on 

the same transactions and events). Because the two proceedings against 

Chavez did not “deal[] with the same claim[s] or cause[s] of action,” res judicata

did not preclude the DHS from seeking to remove Chavez on the basis of his 

burglary conviction. See Test Masters, 428 F.3d at 571.

IV

Chavez also argues, for the first time on appeal, that the DHS was 

precluded from filing a second NTA by 8 C.F.R. § 1240.10(e). He claims that 

this provision allows the DHS to pursue certain charges over others or 

substitute or amend pleadings, but not to initiate a second removal proceeding 

after failing to advance a charge of removability in the first. Because Chavez 

did not raise this argument before the BIA, we lack jurisdiction to consider it. 

See Wang v. Ashcroft, 260 F.3d 448, 452–53 (5th Cir. 2001) (a petitioner’s 

failure to raise an issue before the BIA is a jurisdictional bar to our 

consideration of the issue). 

***

For these reasons, we DENY Chavez’s petition for review in part and 

DISMISS in part for lack of jurisdiction.

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