PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-2349

_____________

MAURICE R. DUHANEY, 

 Petitioner

v.

THE ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

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

Argued June 10, 2010

Before: AMBRO, CHAGARES, and GREENAWAY, JR.,

Circuit Judges.

(Filed: September 14, 2010)

Daniel M. Gonen

Christos Ravanides (Argued)

Four Times Square

New York, NY 10036

Counsel for Petitioner

Tony West

Greg D. Mack

Manuel A. Palau (Argued)

Richard M. Evans

Paul Fiorino
2

U.S. Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

_____________

OPINION

_____________

CHAGARES, Circuit Judge.

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.

I.

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.
3

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
 During this time period, the Government issued an NTA, 1

dated November 16, 2006, charging Duhaney as removable based

on his 1985 drug trafficking, manslaughter, and firearms

convictions. A.R. 683-84. This NTA was later dismissed as

“improvidently issued.” A.R. 618.

4

(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. A.R. 695-706. On 1

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
 We refer to the Form I-261 itself as the “2007 Form,” and 2

we refer to this form together with the 2004 NTA that it

supplemented as the “Amended 2004 NTA.” The 2007 Form, on

its own, does not constitute a separate charging document. It

merely adds factual allegations and charges of removability to the

2004 NTA.

5

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”). A.R. 600-01. 2

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 §
6

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 from

adding charges that it could have charged before. A.R. 4-5. On
7

May 7, 2008, Duhaney filed this timely petition for review.

II.

We have jurisdiction over this petition under 8 U.S.C. §

1252(a)(1). Since Duhaney was found removable based on his

conviction for an aggravated felony, we review only the legal and

constitutional issues raised. 8 U.S.C. §§ 1252(a)(2)(C)-(D); see

Caroleo v. Gonzales, 476 F.3d 158, 162 (3d Cir. 2007) (“We have

jurisdiction to review constitutional claims or questions of law

raised upon a petition for review from a final order of the BIA . .

. .”). We exercise de novo review over these issues. See Caroleo,

476 F.3d at 162 (citing Kamara v. Att’y Gen., 420 F.3d 202, 211

(3d Cir. 2005)). 

III.

As a threshold matter, Duhaney argues that the BIA erred by

remanding his case to the IJ rather than simply reopening the

proceedings for the sole purpose of terminating the order of

removal. He argues that the BIA disregarded its own established

precedent by remanding the case, and that he was deprived of the

right to oppose remand because the Government failed to provide

proper notice.

A.

Duhaney first contends that the BIA erred by remanding

rather than terminating his case upon the vacatur of his conviction,

relying on Johnson v. Ashcroft, 378 F.3d 164, 171 (2d Cir. 2004)

(“Johnson (2d Cir.)”). In that case, the Court of Appeals for the

Second Circuit noted that the “BIA, as a matter of practice,

routinely reopens and terminates proceedings of this kind without

remanding for further inquiry before an IJ.” Id. (citing In re

Rodriguez-Ruiz, 22 I. & N. Dec. 1378, 1380 (BIA 2000); In re

Gutnick, 13 I. & N. Dec. 672, 674 (BIA 1971)). The court also

noted that, since the Government did not intend to introduce any

previously unavailable evidence on remand, “the Board’s own

precedents clearly mandated” that the Government’s motion to

remand be denied. Id. (citing Kuang-Te Wang v. Ashcroft, 260
8

F.3d 448, 451 & n.2 (5th Cir. 2001); In re Coelho, 20 I. & N. Dec.

464, 471-73 (BIA 1992)). The court concluded that, “[w]hile the

Board is free to modify its precedents in a reasoned fashion, it acts

arbitrarily and unlawfully when it simply ignores established

holdings.” Id. at 171 (citing Ke Zhen Zhao v. U.S. Dep’t of

Justice, 265 F.3d 83, 93 (2d Cir. 2001); Johnson v. Ashcroft, 286

F.3d 696, 700 & n.4 (3d Cir. 2002) (“Johnson (3d Cir.)”)).

We have recognized that an administrative agency “acts

arbitrarily if it departs from its established precedents without

announcing a principled reason for the departure.” Johnson (3d

Cir.), 286 F.3d at 700 (citations and quotation marks omitted). We

disagree, however, that the BIA disregarded established precedent

by remanding these proceedings to the IJ. We do not view any of

the cases cited in Johnson (2d Cir.) as establishing that the BIA’s

established precedent is to terminate removal proceedings without

remand to the IJ. While the BIA terminated removal proceedings

without first remanding to an IJ in both Rodriguez-Ruiz, 22 I. & N.

Dec. at 1380, and Gutnick, 13 I. & N. Dec. at 674, these two

examples do not prove that this procedure amounts to the BIA’s

established precedent.

If anything, the applicable regulations seem to contemplate

the procedure that the BIA followed in this case. Under 8 C.F.R.

§ 1003.1(d)(3)(iv), the BIA generally “will not engage in

factfinding in the course of deciding appeals.” If “factfinding is

needed in a particular case, the Board may remand the proceeding

to the immigration judge . . . .” Id. In Coelho, the BIA discussed

the requirements for a motion to remand, explaining that such

motions are “not expressly addressed” by the INA but have become

“an accepted part” of the agency’s procedure. 20 I. & N. Dec. at

471. When a motion to remand also requires reopening closed

proceedings, the motion must comply with the requirements for a

motion to reopen. Id. Accordingly, remand is generally only

appropriate for “consideration of new facts or changed

circumstances.” Wang, 260 F.3d at 451. Coelho and Wang merely

recognize that remand is generally inappropriate without new

factual circumstances.

In this case, the vacatur of Duhaney’s 2000 conviction
9

presented the BIA with new facts to consider, allowing it to grant

the parties’ motions to reopen and to remand to the IJ to evaluate

the impact of these new facts. Once the BIA had remanded the

case to the IJ, BIA precedent authorized the IJ to consider “any and

all matters” that the IJ “deem[ed] appropriate in the exercise of his

administrative discretion.” In re Patel, 16 I. & N. Dec. 600, 601

(BIA 1978). Under these circumstances, the BIA did not disregard

its established precedent by remanding the case in a way that

ultimately permitted the Government to lodge additional charges of

removability against Duhaney. Accordingly, the BIA did not err in

ordering a remand.

B.

Duhaney also argues that the Government failed to provide

notice of its motion to reopen, which it sent to a detention facility

in New York after he had been transferred to a correctional center

in Pennsylvania. In particular, he claims that he was deprived of

the opportunity to make arguments on his own behalf and that he

suffered prejudice as a result, in violation of his right to due

process. See Fadiga v. Att’y Gen., 488 F.3d 142, 155 (3d Cir.

2007) (“Where an alien claims a denial of due process because he

was prevented from making his case to the BIA or the IJ, he must

show (1) that he was prevented from reasonably presenting his case

and (2) that substantial prejudice resulted.” (quotation marks,

citation, and footnote omitted)). We disagree with Duhaney’s

claim.

Both parties filed motions to reopen the proceedings based

on the vacatur of Duhaney’s 2000 conviction. A.R. 689-90

(Government’s motion), 698-706 (Duhaney’s motion). Without

hearing any additional arguments from either party, the BIA

granted the relief sought by both parties. A.R. 617 (granting

motion to reopen because “[t]he respondent and the Department of

Homeland Security, in separate motions, ask that we reopen

proceedings on the grounds that the criminal conviction underlying

the respondent’s removal order has been vacated”). Again, both

parties sought and received identical relief. We reject Duhaney’s

argument that he suffered any type of prejudice under these

circumstances. Accordingly, the BIA did not deprive Duhaney of
We note, however, that under the analysis we apply to the 3

original proceedings, res judicata would not have barred the

Government from filing a new NTA based on the charges lodged

in the 2004 Form had the BIA merely terminated the proceedings.

10

his due process rights.

IV.

Having addressed Duhaney’s argument that the BIA

committed procedural error, we turn to his substantive challenges

to the removal order. His principal claim is that res judicata

precluded the Government from adding additional charges to the

2004 NTA based on convictions that it could have used to support

charges of removability during prior immigration proceedings.

Duhaney argues that two separate proceedings should have

preclusive effect: (1) the original proceedings, based on the 1986

OTSC, which terminated with the grant of a § 212(c) waiver; and

(2) the 2004 proceedings, which he argues should have been

terminated when his 2000 conviction was vacated. Since we have

determined that the BIA did not err by remanding the proceedings

in a way that permitted the Government to lodge additional charges

of removability, only the first proceeding achieved the finality

necessary to invoke res judicata. We hold that the Government 3

was not precluded from alleging new charges of removability

following the vacatur of Duhaney’s 2000 conviction.

A.

Res judicata, also known as claim preclusion, bars a party

from initiating a second suit against the same adversary based on

the same “cause of action” as the first suit. See In re Mullarkey,

536 F.3d 215, 225 (3d Cir. 2008). A party seeking to invoke res

judicata must establish three elements: “(1) a final judgment on the

merits in a prior suit involving (2) the same parties or their privies

and (3) a subsequent suit based on the same cause of action.” Id.

(quotation marks omitted). “The doctrine of res judicata bars not

only claims that were brought in a previous action, but also claims

that could have been brought.” Id.
11

Although the doctrine of res judicata is most frequently

applied to final judgments issued by courts, we have also endorsed

its application to adjudicative determinations by administrative

agencies, including certain immigration decisions. The Supreme

Court has instructed that the “common-law doctrines of collateral

estoppel (as to issues) and res judicata (as to claims)” should be

applied “to those determinations of administrative bodies that have

attained finality.” Astoria Fed. Sav. & Loan Ass’n v. Solimino,

501 U.S. 104, 107 (1991). “‘When an administrative agency is

acting in a judicial capacity and resolves disputed issues of fact

properly before it which the parties have had an adequate

opportunity to litigate, the courts have not hesitated to apply res

judicata to enforce repose.’” Id. (quoting United States v. Utah

Constr. & Mining Co., 384 U.S. 394, 422 (1966)). Since the

common law principles of collateral estoppel and res judicata are

“well established,” courts may imply that “Congress has legislated

with an expectation that the principle will apply except when a

statutory purpose to the contrary is evident.” Id. at 108 (quotation

marks omitted).

Applying this framework, we have held that common law

preclusion doctrines apply to adjudicative agency determinations

under the INA, as long as application of these doctrines “does not

frustrate congressional intent or impede the effective functioning

of the agency.” Duvall v. Att’y Gen., 436 F.3d 382, 387-88 (3d

Cir. 2006). In Duvall, we explained that these preclusion doctrines

apply to “all proceedings that may be deemed ‘adjudicative,’ no

matter whether the governing entity is a ‘court’ or an ‘agency.’”

Id. at 390. We further explained that “[t]he adversarial system of

dispute resolution established in the INA is plainly adjudicatory in

character and susceptible to full application of common law

principles of preclusion.” Id. Since “[r]equiring the INS to meet

its burden of proof at a single hearing is consistent with the

statutory scheme, as interpreted by the administrative agency, and

will not frustrate the goals of Congress,” the “‘lenient presumption

in favor of administrative estoppel’ holds, and the INA will be held

to incorporate common law principles of collateral estoppel.” Id.

(citing In re Federenko, 19 I. & N. Dec. 57, 61 (BIA 1984) and

quoting Astoria, 501 U.S. at 108).
 Although this general principle appears well settled, at 4

least one court of appeals has expressed the possibility that res

judicata may not apply in the specific context of efforts to remove

aliens convicted of aggravated felonies. See Channer v. DHS, 527

F.3d 275, 280 n.4 (2d Cir. 2008). The court in Channer explained

that “a doctrine of repose should not be applied so as to frustrate

clearly expressed congressional intent,” and that Congress has

“repeatedly and unambiguously . . . sought to remove . . . aliens

convicted of aggravated felonies.” Id. The court therefore

suggested that the removal of aliens who have committed

aggravated felonies may be a special case: “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’ clear and emphatic position with respect

to such aliens.” Id.

12

The parties in this case do not dispute the general

proposition that res judicata may be applied to adjudicative

proceedings under the INA. The question is whether res judicata 4

precluded the Government from lodging new charges of

removability under these particular circumstances. As previously

noted, res judicata only applies to a second proceeding based on the

same “cause of action” as the first. The challenge in this case, as

in many res judicata cases, is defining the relevant “cause of

action.”

We have disavowed attempts to create a “simple test” for

“determining what constitutes a cause of action for res judicata

purposes.” Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d

Cir. 1991) (quotation marks omitted). “Rather, we look toward the

‘essential similarity of the underlying events giving rise to the

various legal claims.’” Id. (quoting Davis v. U.S. Steel Supply,

688 F.2d 166, 171 (3d Cir. 1982) (en banc)). Our approach reflects

the “‘present trend . . . of requiring that a plaintiff present in one

suit all the claims for relief that he may have arising out of the

same transaction or occurrence.’” Id. (quoting United States v.

Athlone Indus., Inc., 46 F.2d 977, 984 (3d Cir. 1984)). Under this

transactional approach, the focus of the inquiry is “‘whether the
13

acts complained of were the same, whether the material facts

alleged in each suit were the same, and whether the witnesses and

documentation required to prove such allegations were the same.’”

Id. (quoting Athlone, 746 F.2d at 984). “A mere difference in

theory is not dispositive.” Id. 

Duhaney proposes that the relevant “‘transaction’ for res

judicata purposes in removal proceedings is the alien’s

removability.” Duhaney Br. 21. He contends that “[w]hether the

alien is removable on the basis of criminal offenses is essentially

a single transaction: certainly, the issue of an alien’s removability

on the basis of multiple convictions form a convenient trial unit

and conforms to the parties’ expectations.” Id. The Government

proposes that in the removal context, the relevant transaction

should be defined as the “factual occurrence or conviction upon

which a charge of removability is based.” Att’y Gen. Br. 34.

We conclude that the Government’s approach to defining

the relevant cause of action is more faithful to our res judicata

precedent and the equitable principles underlying the doctrine, to

say nothing of congressional intent. In this case, the Government

secured a removal order against Duhaney based on criminal

convictions for which it had not previously charged Duhaney as

removable. Although there are common elements of fact between

the two removal proceedings, the critical acts and the necessary

documentation were different for the two proceedings.

Accordingly, we hold that the doctrine of res judicata did not bar

the Government from lodging additional charges of removability

after Duhaney’s 2000 conviction was vacated.

The Court of Appeals for the Second Circuit has applied a

similar transactional approach to defining the relevant cause of

action. Channer v. DHS, 527 F.3d 275, 281-82 (2d Cir. 2008). 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. The

INS initially charged him as removable based solely on the federal

conviction, which it contended amounted to both an aggravated

felony and a removable firearms offense under the INA. After an
14

IJ had entered an order of removal, however, the petitioner’s

federal conviction was vacated, and, based on the INS’s motion,

his removal was terminated. The INS then initiated new removal

proceedings against him, charging him as removable based on his

state convictions, which amounted to aggravated felonies under the

INA. The petitioner argued that this second proceeding was barred

by res judicata, but the BIA and the Court of Appeals for the

Second Circuit held that the second proceeding involved a different

“cause of action” from the first. Id. at 278, 281-82. The court in

Channer reasoned that the two proceedings “did not originate from

the same nucleus of operative fact. The factual predicates

produced two distinct convictions based on different charges.” Id.

at 281. The court continued that “[w]hile the remedy for each claim

is identical -- deportation for committing an aggravated felony --

the contrasting evidence required to prove each claim and the

different elements of each crime demonstrate that they do not form

a convenient trial unit.” Id. The court rejected Channer’s claim

that res judicata should apply because “the facts essential to the

second suit existed and were known to the complaining party at the

time of the first,” reasoning that “each deportation proceeding

stemmed from a separate transaction” and “each required different

proof.” Id. The court concluded that res judicata did not bar the

Government from lodging new charges of removability based on

a different predicate conviction.

In Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th Cir.

2007), by contrast, the Court of Appeals for the Ninth Circuit

determined that “elementary fairness” required the opposite result.

Id. at 1360. In that case, the Government first sought to deport

Bravo-Pedroza based on a 1985 conviction for robbery and a 1986

conviction for burglary. The IJ found him deportable but granted

him relief under former INA § 212(c), 8 U.S.C. § 1182(c) (1990).

Bravo-Pedrazo, 475 F.3d at 1359. The Government sought to

deport him for a second time in 2001, based on a 1996 conviction

for petty theft that, due to his prior offenses, amounted to an

aggravated felony. Id. The IJ found Bravo-Pedroza removable, but

while his petition for review was pending, the Court of Appeals for

the Ninth Circuit held that petty theft did not amount to an

aggravated felony; it therefore remanded Bravo’s petition to the

BIA. Id. A few days later, the Government filed new charges of
15

removability against him, alleging that his three prior convictions

were crimes of moral turpitude. Id. The IJ upheld the charges, but

the Court of Appeals granted Bravo-Pedroza’s petition for review,

concluding that res judicata barred the Government from

relitigating Bravo-Pedroza’s removability based on these three

prior convictions. Id. at 1359-60. The court held that the

Government was barred by res judicata from “initiating a second

deportation case on the basis of a charge that [it] could have

brought in the first case, when, due to a change of law that

occurred during the course of the first case, [it] lost the first case.”

Id. at 1358. The court rejected the Government’s argument that res

judicata should be applied “flexibly” in this context, explaining that

the agency’s own regulations provided an opportunity to add

charges “during the pendency of immigration proceedings,” but not

after a proceeding had concluded. Id. at 1359-60 (emphasis in

original). The Government had “abundant opportunity” to add

these charges to the prior proceedings, the court determined, and

having neglected this opportunity, it could not “avoid the

application of the general principles of res judicata.” Id. at 1360.

The court concluded that “elementary fairness” supported

the petitioner’s res judicata defense, but it did not address whether

the second proceedings involved the same cause of action as the

first. We are not persuaded that principles of fairness necessarily

support application of res judicata in the circumstances present

herein. In any event, we see no reason to depart from our standard

res judicata analysis, including the transactional approach to

defining the relevant cause of action.

Duhaney argues that we should not consider the predicate

conviction to be the relevant factual transaction because the facts

underlying a conviction may not generally be litigated in removal

proceedings. See Duhaney Br. 21 n.5 (arguing that under the

“formal categorical approach,” the “underlying facts of the criminal

convictions generally may not be litigated” (citing Evanson v. Att’y

Gen., 550 F.3d 284, 290 (3d Cir. 2008)). Although an IJ’s ability

to look beyond the elements of the crime charged may be limited,

the emphasis of the IJ’s analysis remains whether a particular

conviction amounts to a removable offense. We conclude that the

most reasonable definition of the relevant transaction is the factual
16

occurrence giving rise to a charge of removability. See Channer,

527 F.3d at 281 (“While the remedy for each claim is identical --

deportation for committing an aggravated felony -- the contrasting

evidence required to prove each claim and the different elements

of each crime demonstrate that they do not form a convenient trial

unit”). In this case, the relevant factual occurrence is the

conviction or convictions giving rise to a charge of removability.

Since the instant removal order was based on an aggravated felony

conviction arising from criminal conduct that the Government had

not previously charged as a ground for removal, these new charges

represent a new “cause of action.”

Our precedent in other, related areas supports this

conclusion. In a case where we rejected an alien’s attempt to

invoke judicial estoppel to block the Government from lodging

additional charges of removability, we explained that “‘there is no

requirement that the [DHS] advance every conceivable basis for

[removability] in the [Notice to Appear] . . . . [S]uch a rule would

needlessly complicate proceedings in the vast majority of cases.’”

Yong Wong Park v. Att’y Gen., 472 F.3d 66, 73 (3d Cir. 2006)

(quoting De Faria v. INS, 13 F.3d 422, 424 (1st Cir. 1993)

(modifications in Park)).

We adopted a similarly pragmatic view of the Government’s

immigration charging discretion in Duvall. Despite our general

conclusion that the doctrine of collateral estoppel applied to

immigration proceedings, we ultimately concluded that the

Government was not precluded from relitigating the issue of the

petitioner’s alienage, even though that issue technically had been

adjudicated on the merits in the first proceeding. In the initial

deportation proceedings, the Government -- through an oversight

the court characterized as a mere “litigation error” -- failed to

produce proof of the petitioner’s foreign citizenship. Duvall, 436

F.3d at 384. After these initial deportation proceedings were

terminated in the petitioner’s favor, she went on to commit several

additional crimes. When the Government sought to remove her

based on these subsequent convictions, she attempted to invoke

collateral estoppel to bar the Government from relitigating the issue

of her alienage. We held that collateral estoppel did not bar the

Government from relitigating this issue under these circumstances,
17

reasoning that “collateral estoppel was borne of equity and is

therefore ‘flexible,’ bending to satisfy its underlying purpose in

light of the nature of the proceedings.” Id. at 390-91 (quoting Nat’l

R.R. Passenger Corp. v. Pa. Pub. Util. Comm’n, 288 F.3d 519, 528

(3d Cir. 2002)). 

The case for applying equitable preclusion doctrines flexibly

is particularly strong in the circumstances presented by Duhaney’s

petition. As we explained in Duvall, Congress has repeatedly

amended the immigration laws to facilitate the removal of aliens

who have been convicted of aggravated felonies. 436 F.3d at 391

(noting that a “primary goal of several recent overhauls of the INA

has been to ensure and expedite the removal of aliens convicted of

serious crimes” (citations omitted)); see also Channer, 527 F.3d at

280 n.4 (observing that Congress has “repeatedly and

unambiguously” sought to remove aliens convicted of aggravated

felonies). “[A] doctrine of repose should not be applied so as to

frustrate clearly expressed congressional intent.” Channer, 527

F.3d at 280 n.4. The fact that Congress has specifically chosen to

amend the immigration laws to facilitate the removal of aliens who

have committed aggravated felonies counsels against an overly

rigid application of the res judicata doctrine.

In this case, the order of removal against Duhaney is based

on a ground of removability that did not even become available

until after Duhaney was granted a § 212(c) waiver. The BIA found

him removable under INA section 237(a)(2)(A)(iii), 8 U.S.C. §

1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony as

defined in INA section 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).

INA section 101(a)(43)(F) defines aggravated felony as a crime of

violence for which the term of imprisonment is at least one year.

This definition of aggravated felony was not created until after

1985, however, and Congress did not provide for the retroactive

application of the definition until it passed the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),

Pub. L. No. 104-208, 110 Stat. 3009. IIRIRA section 321(b)

amended INA section 101(a)(43) to apply the definition of

aggravated felony “regardless of whether the conviction was

entered before, on, or after the date of enactment of this

paragraph.” 110 Stat. at 3009-628 (codified at 8 U.S.C. §
 Duhaney also argues that the Government’s attempts to 5

initiate new removal proceedings against him based on charges that

it could have brought in earlier proceedings violate due process.

Without some procedural bar to limit the Government from

bringing successive actions, Duhaney argues, it “could simply

institute repeated administrative proceedings, imposing more and

more expense on its target, until it achieved its desired result.”

Duhaney Br. 47. The doctrines of res judicata and procedural

18

1101(a)(43)).

When the original immigration proceedings terminated with

the grant of a § 212(c) waiver in 1993, three years before IIRIRA

was passed, the Government could not have charged Duhaney with

removability based on this ground. Other courts of appeals have

held that res judicata does not bar the Government from lodging

new charges of removability, post-IIRIRA, that could not have

been raised pre-IIRIRA. See, e.g., Ljutica v. Holder, 588 F.3d 119,

127 (2d Cir. 2009) (“Under the principles of res judicata, while a

previous judgment may preclude litigation of claims that arose

prior to its entry, it cannot be given the effect of extinguishing

claims which did not even then exist and which could not possibly

have been sued upon in the previous case.” (quotation marks

omitted)); Alvear-Velez v. Mukasey, 540 F.3d 672, 678 (7th Cir.

2008) (“[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.”). 

Since we have determined that the instant order of removal

is based on a different “cause of action” than the earlier

proceedings against Duhaney, we need not resolve whether the

enactment of new statutory grounds of removal would render res

judicata inapplicable. Neither must we address Duhaney’s

contention that the Government could have used his 1985 firearm

and manslaughter convictions to support other potential grounds of

removal. Under the circumstances presented by this case, res

judicata does not bar the Government from lodging new charges of

removability based on convictions that it had not previously raised.5
estoppel, as well as the BIA’s own procedures, however, impose

significant limits on the Government’s ability to bring successive

removal actions. These doctrines and procedures impose

principled limits on the Government’s ability to revisit claims and

issues that have already been fully litigated, even if these doctrines

do not bar the Government from lodging new charges of

removability in this particular case. Duhaney’s due process

challenge therefore lacks merit.

19

B.

Duhaney contends that the regulations governing § 212(c)

waivers support his position that the Government was precluded

from lodging new charges of removal based on convictions

disclosed in his application for § 212(c) relief. The Government

contends that this argument was waived because it was not

specifically raised before the IJ and the BIA. Duhaney contends

that this specific issue falls within his broader claim that the

Government was precluded from relitigating claims that it could

have brought during earlier proceedings. Assuming, arguendo, that

Duhaney has properly exhausted this issue, we conclude that his §

212(c) waiver does not apply to the instant order of removal, which

is based on a different ground of removability.

A § 212(c) waiver extends only to the “specific grounds of

excludability or deportability that were described in the

application.” 8 C.F.R. § 212.3(d). The sole charge in the 1986

OTSC was based on his 1985 controlled substance conviction,

making him deportable under former INA section 242(a)(11), 8

U.S.C. § 1231(a)(1) (1986). A.R. 910. It did not raise any other

grounds for deportability. Duhaney’s application for the § 212(c)

waiver disclosed his other convictions, A.R. 906, and the IJ

discussed these convictions in the hearing on Duhaney’s request for

the waiver, see A.R. 369-70, but the disclosure and discussion of

these convictions does not somehow bring every possible ground

for deportation that could have been based on the convictions

within the scope of the waiver. 

The BIA has explained that a § 212(c) waiver “should
20

remain valid indefinitely,” but only as to specific “grounds stated

at the time of the grant of relief.” In re Balderas, 20 I. & N. Dec.

389, 393 (BIA 1991). In Balderas, the BIA further explained that

“since a grant of section 212(c) relief ‘waives’ the finding of

excludability itself, the crimes alleged to be grounds for

excludability or deportability do not disappear from the alien’s

record for immigration purposes.” Id. at 391. “[W]hen section

212(c) relief is granted, the Attorney General does not issue a

pardon or expungement of the conviction itself. Instead, the

Attorney General grants the alien relief upon a determination that

a favorable exercise of discretion is warranted on the particular

facts presented, notwithstanding the alien’s excludability or

deportability.” Id. (footnote omitted).

The facts of Balderas help illuminate this distinction. The

INS first sought to deport Balderas based on two convictions,

under the former INA section 241(a)(4)(A), which applied to an

alien convicted of two crimes involving moral turpitude. Balderas

received a § 212(c) waiver, but he was later convicted of another

crime involving moral turpitude. The INS then sought to deport

Balderas a second time, based on one of the pre-waiver convictions

and the post-waiver conviction, under the same “two crimes

involving turpitude” provision. The BIA concluded that Balderas’

§ 212(c) waiver did not apply to this new basis for deportability,

holding that:

a conviction which has once been relied upon in a

charge of deportability may be alleged as one of the

‘two crimes involving moral turpitude’ in a second

proceeding, even though the first proceeding was

terminated by a grant of relief under section 212(c)

of the Act, where the second crime alleged is a

subsequent conviction that was not disclosed in the

prior proceeding.

Id. at 393.

Although Balderas involved an alien who committed

another crime after obtaining a § 212(c) waiver, the second

proceeding relied both on the post-waiver conviction and one of the
21

pre-waiver convictions. This fact illustrates that the scope of a §

212(c) waiver is defined by the basis for deportability, not the

underlying crime itself. See Esquivel v. Mukasey, 543 F.3d 919,

922 (7th Cir. 2008) (“The BIA has established that a § 212(c)

waiver does not waive the basis for excludability itself; it merely

waives the finding of excludability.” (emphasis in original)).

Indeed, we have determined, relying on Balderas, that the fact that

a petitioner’s deportation based on a particular conviction has been

waived does not prevent subsequent consideration of the same

underlying conviction for other purposes. Rodriguez-Munoz v.

Gonzales, 419 F.3d 245, 248 (3d Cir. 2005) (“[E]ven if

Rodriguez-Munoz’s deportation based on his 1992 conviction were

waived under § 212(c), that conviction would nonetheless remain

an aggravated felony for purposes of precluding his application for

cancellation of removal under § 240A.”); see also De Hoyos v.

Mukasey, 551 F.3d 339, 342-43 (5th Cir. 2008) (agreeing with the

BIA’s approach in Balderas); Esquivel, 543 F.3d at 922-23 (same).

Duhaney obtained discretionary relief that allowed him to

remain in the country even though he was found to be deportable

based on his 1985 conviction for sale of a controlled substance.

This § 212(c) waiver remains valid indefinitely, but it applies only

to the basis for deportation charged in the 1986 OTSC. Under the

applicable regulations, the Government was permitted to lodge new

charges of removability, even based on convictions that were

disclosed in his application. Duhaney’s § 212(c) waiver does not

extend to the ground for removability that underlies the instant

order of removal.

V.

For the foregoing reasons, we will deny the petition for

review.