United States Court of Appeals

Fifth Circuit

FILED

August 1, 2006

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 04-30247

_______________________

ADALBERTO ANDRADE,

Petitioner-Appellant,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

JAMES W. ZIGLAR; CHRISTINE G. DAVIS; EDWARD J. MCELROY;

BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT;

UNITED STATES DEPARTMENT OF JUSTICE,

Respondents-Appellees.

Appeals from the United States District Court

for the Western District of Louisiana

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit

Judges.

EDITH H. JONES, Chief Judge:

This court affirmed the district court’s denial of

Andrade’s petition for a writ of habeas corpus. Andrade v.

Gonzales, 134 Fed. Appx. 729 (2005). The Supreme Court vacated and

remanded for further consideration in light of 8 U.S.C.

§ 1252(a)(2)(D). Having received supplemental briefing from the

parties as to the effect of § 1252(a)(2)(D) upon the instant case,

we convert Andrade’s habeas petition into a petition for review of

the Board of Immigration Appeals (“BIA”), and DENY relief.
2

I. Background

Andrade is a citizen and national of Cape Verde. He

entered the United States as a visitor in 1988, and was accorded

lawful permanent resident status on or before June 19, 1998.

Between 1995 and 2000, Andrade was convicted of numerous offenses.

Andrade’s criminal record includes multiple convictions for assault

and battery, a conviction for unlawful possession of a firearm, and

repeated violations of domestic abuse prevention orders. As a

result of such transgressions, the former Immigration and

Naturalization Service (“INS”) issued a Notice to Appear, and on

December 3, 1999, an Immigration Judge (“IJ”) ordered Andrade

removed. While free on bond pending his appeal to the BIA, Andrade

was again convicted of assault and battery and two counts of

violating an abuse prevention order.

On May 10, 2001, the BIA remanded Andrade’s case to the

IJ to determine whether Andrade was entitled to a discretionary

adjustment of status. On August 1, 2002, after determining that

Andrade’s twenty-one convictions outweighed the mitigating

interests of his American wife and children, the IJ declined to

adjust Andrade’s status and again ordered his removal. Andrade

again appealed to the BIA, which affirmed the IJ on May 7, 2003.

Andrade’s subsequent Motion to Reconsider was denied by the BIA on

June 30, 2003, and his case became administratively final.
3

On November 7, 2002, pursuant to 28 U.S.C. § 2241,

Andrade filed a petition for a writ of habeas corpus in the Eastern

District of New York, alleging that his mandatory detention under

8 U.S.C. § 1226(c) violated his Fifth Amendment due process rights.

The district court stayed Andrade’s removal pending the resolution

of his habeas petition, and then transferred the case to the

Western District of Louisiana, which lifted the stay. In

Louisiana, Andrade amended his petition to add challenges to his

classification as an aggravated felon, as well as to the institution of removal proceedings against him based on crimes that

predate his 1998 adjustment of status.

Andrade’s petition for review of the BIA decision was

dismissed by this court on October 3, 2003; his habeas petition was

dismissed by the Louisiana district court on March 2, 2004.

Andrade appealed the denial of habeas relief. While his appeal was

pending, the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231 (2005)

became law. This court dismissed Andrade’s appeal on June 17,

2005, though it did so without addressing the effects of the REAL

ID Act upon his case. The Supreme Court granted certiorari,

vacated this court’s decision, and remanded for further

consideration in light of 8 U.S.C. § 1252(a)(2)(D).

II. Discussion

The REAL ID Act divests the district courts of

jurisdiction over the habeas petitions of aliens; instead, REAL ID
4

Act § 106 states that “a petition for review shall be the sole and

exclusive means for judicial review of an order of removal entered

or issued under any provision of [the INA].” 8 U.S.C.

§ 1252(a)(5). This court, in Rosales v. Bureau of Immigration &

Customs Enforcement, 426 F.3d 733 (5th Cir. 2005), held that

“habeas petitions on appeal as of May 11, 2005 [the effective date

of the REAL ID Act] . . . are properly converted into petitions for

review.” Id. at 736. As Andrade’s habeas appeal was pending on

May 11, 2005, this court erred in not converting his case into a

petition for review. In a petition for review, the BIA’s determinations as to purely legal questions are reviewed de novo. Omagah

v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002). This court

continues to lack jurisdiction to review issues of fact pertaining

to the discretionary decisions of the BIA. See 8 U.S.C.

§§ 1252(a)(2)(B),(C).

Before passage of the REAL ID Act, the criminal alien bar

of 8 U.S.C. § 1252(a)(2)(C) prevented the courts from entertaining

petitions for review of removal orders predicated upon an

aggravated felony or a firearms offense. Under the REAL ID Act,

however, this court may now reach the merits of a criminal alien’s

petition for review if the petition raises constitutional claims or

pure questions of law. See 8 U.S.C. § 1252(a)(2)(D).

Andrade raised three issues on appeal, all of which fall

within the purview of § 1252(a)(2)(D). First, he argues that his

mandatory detention, pursuant to 8 U.S.C. § 1226(c), is
5

unconstitutional. Second, he argues that he was improperly

classified as an aggravated felon for the purposes of his

immigration proceedings. Finally, Andrade argues that the

Department of Homeland Security (“DHS”) should be estopped or

barred by res judicata from bringing removal proceedings against

him on the basis of his pre-1998 convictions, given that the INS

was aware of his criminal history and nevertheless granted

adjustment of status in 1998. All three claims are without merit,

and will be addressed in turn.

A. Detention

Andrade challenges his detention on the basis of 8 U.S.C.

§ 1226(c), a section of the INA that concerns the detention of

aliens pending a final order of removal, arguing that his extended

detention while his appeal is pending violates his Fifth Amendment

due process rights. The Government counters that such a challenge

is moot, as Andrade’s case became administratively final in 2003

and is now governed by 8 U.S.C. § 1231. In response, Andrade

argues that as a pro se litigant, his petition should be construed

liberally, and notes that he argued in his objections to the

original magistrate’s report and recommendations that if § 1231

applied, his continued detention was unconstitutional per Zadvydas

v. Davis, 533 U.S. 678, 121 S. Ct. 2491 (2001).

The Government is correct that Andrade’s detention is now

governed by § 1231. Section 1231 defines the circumstances under
6

which an alien enters the “removal period,” after which the

Government is required in most situations to remove the alien

within ninety days. Under 8 U.S.C. § 1231(a)(1)(B), the removal

period begins on the latest of the following:

(i) The date the order of removal becomes

administratively final.

(ii) If the removal order is judicially reviewed and if

a court orders a stay of the removal of the alien, the

date of the final order.

(iii) If the alien is detained or confined (except under

an immigration process), the date the alien is released

from detention or confinement.

It is clear both that Andrade’s case became administratively final

on June 30, 2003, and that 8 U.S.C. § 1231(a)(1)(B)(iii) does not

apply here, as Andrade was detained under an immigration process.

Although Andrade’s removal order is now being judicially reviewed,

8 U.S.C. § 1231(a)(1)(B)(ii) only applies to those cases in which

a court also issued a stay of removal. The district court in the

Eastern District of New York initially ordered a stay, but it

lacked the jurisdiction to do so, and the district court in the

Western District of Louisiana properly lifted the stay. This court

affirmed the lifting of the stay. See Andrade v. Ashcroft, No.

03-30899 (5th Cir. Mar. 30, 2004). Thus, the date at which

Andrade’s case became administratively final is the only one of the

three triggering events under 8 U.S.C. § 1231(a)(1)(B) that is

applicable here, and Andrade can no longer state a claim for relief

under 8 U.S.C. § 1226(c).
7

The Government errs, however, in suggesting that Andrade

raised a Zadvydas challenge for the first time on appeal. We must

construe the pleadings of pro se litigants liberally, see Perez v.

United States, 312 F.3d 191, 194-95 (5th Cir. 2002), and Andrade,

who had been detained for more than three years at the time his

habeas appeal first reached this court, plainly articulated a

constitutional challenge to the length of his detention. Moreover,

Andrade did raise Zadvydas and § 1231 in his objections to the

recommendations of the magistrate judge, so the fact that § 1226(c)

does not govern Andrade’s detention does not make his claim moot.

Nevertheless, Andrade’s ultimate constitutional claim

must fail, as his case is distinguishable from Zadvydas. Zadvydas

concerned civil confinement that was “not limited, but potentially

permanent.” Zadvydas, 533 U.S. at 691, 121 S. Ct. at 2499. There,

the Government had thrice failed to secure the transfer of an alien

subject to a final order of removal, and could offer no promise of

future success, as all the nations to which the alien had ties had

refused his admission on the ground that he was not a citizen. Id.

Zadvydas thus created a “6-month presumption” of the validity of

detention under § 1231, after which an alien could attack the

reasonableness of his continued detention. The Court’s decision

creates no specific limits on detention, however, as “an alien may

be held in confinement until it has been determined that there is

no significant likelihood of removal in the reasonably foreseeable

future.” Id. at 701, 121 S. Ct. at 2505. The alien bears the
1 An alien previously removed on aggravated felony grounds cannot at

any time be admitted into the United States without the consent of the Attorney

General. 8 U.S.C. § 1182 (a)(9)(A)(i).

8

initial burden of proof in showing that no such likelihood of

removal exists. Id. In the instant case, Andrade has offered

nothing beyond his conclusory statements suggesting that he will

not be immediately removed to Cape Verde following the resolution

of his appeals. His constitutional claim is meritless.

B. Aggravated Felony

8 U.S.C. § 1252(a)(2)(C) strips this court of

jurisdiction to review the final removal order of an alien

convicted of an aggravated felony. However, per the REAL ID Act

and 8 U.S.C. § 1252(a)(2)(D), this court retains jurisdiction over

pure questions of law, such as the issue whether Andrade’s assault

and battery conviction was properly construed as an aggravated

felony. Andrade was ordered removed on the basis of a firearms

offense and a Massachusetts conviction for assault and battery

under MASS. GEN. LAWS Ch. 265, § 13A. The former provides an

independent ground for removal even in the event that Andrade

prevails on his claim that the latter does not constitute an

aggravated felony. Nevertheless, because there are potential

collateral consequences to Andrade’s being removed for an

aggravated felony conviction, we shall examine the merits of his

appeal.1
9

An alien who is convicted of an “aggravated felony” is

deportable at any time. 8 U.S.C. § 1227(a)(2)(A)(iii). For the

purposes of the INA, an aggravated felony is, inter alia, any

“crime of violence . . . for which the term of imprisonment is at

least one year.” 8 U.S.C. § 1101(a)(43)(F); see also 18 U.S.C.

§ 16 (defining “crime of violence”). The law in question, MASS.

GEN. LAWS Ch. 265, § 13A, states in relevant part as follows:

(a) Whoever commits an assault or an assault and battery

upon another shall be punished by imprisonment for not

more than 2 1/2 years in a house of correction or by a

fine of not more than $1,000.

(b) Whoever commits an assault or an assault and

battery:

(i) upon another and by such assault and battery

causes serious bodily injury;

(ii) upon another who is pregnant at the time of

such assault and battery, knowing or having reason

to know that the person is pregnant; or

(iii)upon another who he knows has an outstanding

temporary or permanent vacate, restraining or no

contact order or judgment issued . . .in effect

against him at the time of such assault or assault

and battery; shall be punished by imprisonment in

the state prison for not more than 5 years or in

the house of correction for not more than 2 1/2

years, or by a fine of not more than $5,000, or by

both such fine and imprisonment.

Unsurprisingly, this court has not previously addressed

whether a conviction for assault in Massachusetts qualifies as an

aggravated felony under the INA. As noted by Andrade, § 13A is a

divisible statute, one which “covers two separate crimes — one

involving actual (or potential) physical harm and the other

involving a non-consensual but unharmful touching.” United States
2 To the extent Andrade also argues that the Government is estopped

from bringing removal proceedings against him, such a claim must be rejected.

It is unclear whether equitable estoppel can ever apply to the Government, but

in any event, equitable estoppel “will not lie against the Government as against

private litigants.” Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 419, 110

S. Ct. 2465, 2469 (1990). Valid assertions of estoppel are “rare indeed;” at the

very least, Andrade would have to demonstrate affirmative misconduct — the

affirmative misrepresentation or concealment of material fact — on the part of

the INS. Moosa v. INS, 171 F.3d 994, 1003 (5th Cir. 1999). As Andrade does not

allege affirmative misconduct by the Government, his claim for equitable estoppel

must fail.

10

v. Harris, 964 F.2d 1234, 1236 (1st Cir. 1992). Thus, a conviction

under § 13A is not an aggravated felony per se. Id.; see also

United States v. Jones, 235 F.3d 342 (7th Cir. 2000)(concluding a

§ 13A conviction was not a “crime of violence” where there was

insufficient evidence in charging instrument to prove action beyond

unwanted touching). In the instant case, however, such

distinctions are irrelevant; the 1996 conviction for which Andrade

was ordered removed also concerned a violation of a domestic abuse

protective order. Such an act clearly had as “an element the use,

attempted use, or threatened use of physical force against the

person or property of another,” making it a crime of violence under

18 U.S.C. § 16(a). Thus, the BIA did not err in characterizing

Andrade’s 1996 assault and battery conviction as an aggravated

felony.

C. Res Judicata

Finally, Andrade argues that the INS’s 1998 decision to

grant him adjustment of status bars the DHS from seeking removal

based upon pre-1998 convictions that were known to the INS at the

time his status was adjusted.2
11

The doctrine of res judicata can apply to adjudicatory

removal proceedings. Medina v. United States, 993 F.2d 499, 503

(5th Cir. 1993). However, the issue whether applications for

adjustment of status are to be given res judicata effect in later

deportation cases is novel in this circuit. Medina is instructive

on this issue, as the court held that res judicata barred the INS

from disputing an alien’s citizenship at deportation proceedings

when the issue had been resolved in the alien’s favor in an earlier

exclusion adjudication. Medina presented a straighforward

application of res judicata, given that a “valid and final judgment

precludes a second suit between the same parties on the same claim

or any part thereof . . . [when] in the first litigation there was

an opportunity to get to the merit.” Medina, 993 F.2d at 503.

Central to the Medina decision was the fact that the exclusionary

proceedings were “adjudicatory in nature,” and that the

administrative “agency [was] acting in a judicial capacity” when it

reached its decision. Id.

Medina is thus distinguishable from to the instant case,

as Andrade’s application for an adjustment of status cannot be

understood to be a valid and final judgment within a “judicial”

proceeding. Whereas the original proceeding in Medina was held

before an IJ, and both sides were represented by counsel and given

the opportunity to brief relevant issues, see id. at 501,

applications for adjustment of status are not normally adversarial

in nature, and do not involve an IJ. Adjustment of status is a
3 It is worth noting that the petitioner in Medina had been granted

citizenship, making the Government’s actions inapplicable under the INA.

12

discretionary act by the executive branch, see 8 U.S.C. § 1255(a),

and is not appealable; further, the Attorney General maintains the

authority to initiate removal proceedings against any alien3 for

the reasons listed in 8 U.S.C. § 1227. We therefore conclude that

Andrade’s adjustment of status was not adjudicatory in nature, and

thus is not entitled to res judicata effect.

III. Conclusion

For the foregoing reasons, Andrade’s petition for review

is DENIED.