FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEONEL POBLETE MENDOZA, 

Petitioner, No. 08-71007

v. Agency No.  A044-347-805 ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

March 12, 2010—San Francisco, California

Filed June 2, 2010

Before: Procter Hug, Jr. and Jay S. Bybee, Circuit Judges,

and James S. Gwin,* District Judge.

Opinion by Judge Hug

*The Honorable James S. Gwin, United States District Judge for the

Northern District of Ohio, sitting by designation. 

7845
COUNSEL

John Martin Pope, Pope & Associates, P.C., Phoenix, Arizona, for the petitioner.

Aric A. Anderson, Trial Attorney, U.S. Department of Justice,

Washington, D.C., for the respondent.

OPINION

HUG, Circuit Judge:

Leonel Poblete Mendoza, a native and citizen of Mexico,

petitions for review of the Board of Immigration Appeals’

(“BIA”) decision reversing an order of an Immigration Judge

(“IJ”) and dismissing Poblete Mendoza’s appeal of the IJ’s

subsequent order of removal. For the reasons set forth below,

we deny the petition for review.

I. FACTUAL AND PROCEDURAL BACKGROUND

Poblete Mendoza has been a lawful permanent resident of

the United States since 1993. In 2003, he was convicted of

shoplifting in violation of Arizona law and of possession of

a controlled substance with intent to distribute in violation of

Utah law. After realizing that it had made a clerical error by

convicting Poblete Mendoza of possession with intent to distribute, the Utah court corrected his conviction to simple possession. In the meantime, however, the DHS had initiated

removal procedures against Poblete Mendoza in 2004 based

on the theory that Poblete Mendoza’s conviction was a crime

relating to a controlled substance and that it was an aggravated felony. Importantly to the issue before us now, the DHS

did not use the shoplifting conviction as the basis for the 2004

immigration proceedings. After Poblete Mendoza submitted

the above-mentioned corrected conviction for simple posses7848 POBLETE MENDOZA v. HOLDER
sion, the IJ held that he had not been convicted of an aggravated felony and was thus eligible for cancellation. The DHS

did not appeal that decision.

This did not end Poblete Mendoza’s encounters with the

law. In 2006, he was convicted of solicitation to possess marijuana for sale in violation of Arizona law. Accordingly, the

DHS served Poblete Mendoza with a second Notice to

Appear, asserting that he was subject to removal from the

United States for having been convicted of two crimes of

moral turpitude pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii).1 The

two convictions applied were the 2003 shoplifting conviction

and the 2006 conviction for solicitation to possess marijuana

for sale. The IJ found that the doctrine of res judicata barred

the DHS from using Poblete Mendoza’s shoplifting conviction and thus terminated the removal proceedings. The DHS

appealed. The BIA sustained the DHS’ appeal, holding that

res judicata did not apply and that Poblete Mendoza was thus

removable. The BIA remanded to the IJ for further proceedings. Before the IJ, Poblete Mendoza requested that his case

be terminated because his shoplifting conviction had been

vacated in the meantime. The IJ found that the conviction was

vacated for rehabilitative purposes only and thus remained

applicable as one of two crimes of moral turpitude. Accordingly, the IJ ordered Poblete Mendoza removed to Mexico.

He appealed to the BIA, which dismissed the appeal. This

appeal followed.

II. JURISDICTION

We have jurisdiction over a final order of removal under 8

U.S.C. § 1252(a).

1

“Any alien who at any time after admission is convicted of two or

more crimes involving moral turpitude, not arising out of a single scheme

of criminal misconduct, regardless of whether confined therefor and

regardless of whether the convictions were in a single trial, is deportable.”

POBLETE MENDOZA v. HOLDER 7849
III. STANDARD OF REVIEW

When, as here, the BIA conducts an independent review of

the IJ’s findings, this court reviews the BIA’s decision and

not that of the IJ. Romero-Ruiz v. Mukasey, 538 F.3d 1057,

1061 (9th Cir. 2008). The BIA’s determination of purely legal

questions is reviewed de novo. De Martinez v. Ashcroft, 374

F.3d 759, 761 (9th Cir. 2004). The BIA’s interpretation and

application of immigration laws are entitled to deference

unless the interpretation is contrary to the plain and sensible

meaning of the law at issue. Almaghzar v. Gonzales, 457 F.3d

915, 920 (9th Cir. 2006).

IV. ANALYSIS

The main issue here is whether res judicata bars the government from using Poblete Mendoza’s 2003 shoplifting conviction because it did not bring it up in its first removal

proceedings. Poblete Mendoza also argues that the government did not meet its burden of showing that the vacatur of

his shoplifting conviction was for rehabilitative purposes. We

address each argument in turn.

A. Res judicata

According to Poblete Mendoza, the government effectively

waived any subsequent use of his 2003 shoplifting conviction

when it chose not to bring it up in connection with the 2004

removal proceedings. The government counters that when

new removal proceedings are based on a previously existing

conviction and a newly arising one, the combination of convictions constitutes one new claim for res judicata purposes

that could not possibly have been litigated at an earlier point

in time and that res judicata thus does not apply. We agree.

[1] Res judicata bars further litigation on a claim where

there is (1) an identity of claims, (2) a final judgment on the

merits, and (3) privity between parties. Tahoe Sierra Pres.

7850 POBLETE MENDOZA v. HOLDER
Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064,

1077 (9th Cir. 2003). The defense of res judicata may be

invoked in immigration proceedings. See Ramon-Sepulveda v.

INS, 824 F.2d 749, 750 (9th Cir. 1987). Poblete Mendoza

relies on Bravo-Pedroza v. Gonzales where we held that

“[r]es judicata bars the government from bringing a second

[removal] case based on evidence . . . that it could have presented in the first case.” 475 F.3d 1358, 1359 (9th Cir. 2007)

(emphasis added). However, the government did not base its

second deportation proceedings against Bravo-Pedroza on a

new conviction as here. See id. Rather, it merely relabeled

Bravo-Pedroza’s existing convictions “crimes of moral turpitude” after a change of law regarding one of the underlying

crimes while Bravo-Pedroza’s petition for review was pending and initiated a new deportation case against him. Id. at

1359-60. We concluded that elementary fairness required us

to apply res judicata in those circumstances. Id. at 1360.

In contrast, in Molina-Amezcua v. INS, we considered

whether the former INS could, in part, base a new deportability determination on a crime that it had used in support of

a previous deportability finding as to which actual deportability was waived. 6 F.3d 646, 647 (9th Cir. 1993). We concluded that the petitioner was deportable based on the “new

conviction and on a previous one.” Id. (emphasis added). Similarly, in Al Mutarreb v. Holder, we stated that “[s]hould the

Service decide to initiate new proceedings against Al Mutarreb based on facts that have arisen or come to light after his

original . . . proceeding took place,” it will again bear the burden of proving his removability under 8 U.S.C. § 1229a(c)(3).

561 F.3d 1023, 1031 (9th Cir. 2009) (emphasis added).

[2] Here, the convictions used in connection with the second removal proceedings against Poblete Mendoza were different from those used in the first removal proceedings

against him. The government could not possibly have brought

up Poblete Mendoza’s deportability based on the two crimes

of moral turpitude here involved, namely the 2003 shoplifting

POBLETE MENDOZA v. HOLDER 7851
charge and the 2006 drug solicitation conviction, before the

latter came into existence. Res judicata does not prevent the

government from using a previous conviction in connection

with second removal proceedings based on its combination

with a newly arising conviction when the combination of

these convictions constitutes a claim that could not possibly

have been litigated during the first removal proceedings.

B. Vacatur for Rehabilitative Purposes

[3] A conviction vacated for reasons “unrelated to the merits of the underlying criminal proceedings” may be used as a

conviction in removal proceedings whereas a conviction

vacated because of a procedural or substantive defect in the

criminal proceedings may not. Nath v. Gonzales, 467 F.3d

1185, 1189 (9th Cir. 2006). Poblete Mendoza argues that

because the state court order vacating his conviction for shoplifting is silent on its face as to the reason for the vacatur and

because the Arizona statute under which his conviction was

vacated does not use the word “rehabilitated,” the government

has not met its burden of proving that his conviction was

vacated for rehabilitative purposes. The government claims

that the record underlying the vacatur order clearly shows that

Poblete Mendoza’s conviction was vacated for rehabilitative

purposes.

[4] Poblete Mendoza filed a motion with the Arizona state

court “to set aside [his] conviction for shoplifting” and for a

restoration of “any and all rights that may be affected by the

conviction.” See Ariz. Rev. Stat. § 13-907. As grounds for his

motion, Poblete Mendoza stated that “[d]efendant successfully completed his probation and was discharged therefrom

. . . . No other court sanction or requirement remains to be

completed.” This motion was granted by use of a form order

citing to Poblete Mendoza’s motion to “Vacate/Set Aside

Conviction/Withdraw Guilty Plea.” In Murillo-Espinoza v.

INS, we held that an alien’s prior vacated conviction, which

had been vacated under the precise vacatur statute under

7852 POBLETE MENDOZA v. HOLDER
which Poblete Mendoza’s shoplifting conviction was vacated,

could be used by the government in a subsequent removal

proceeding. See 261 F.3d 771, 773-74 (9th Cir. 2001); see

also Ariz. Rev. Stat. § 13-907 (“[T]he conviction may be used

as a conviction if such conviction would be admissible had it

not been set aside and may be pleaded and provided in any

subsequent prosecution . . . .”). Read alongside Nath, MurilloEspinoza stands for the proposition that any vacatur under this

particular statute is a vacatur for rehabilitative purposes and

that therefore, the vacated conviction may be used in subsequent removal proceedings. We thus hold that the vacatur of

Poblete Mendoza’s conviction for shoplifting in Arizona was

for rehabilitative purposes and therefore, the government

could use this conviction in his subsequent removal proceeding.

PETITION DENIED.

POBLETE MENDOZA v. HOLDER 7853