Odulene Dormescar v. U.S. Attorney General (11th Cir 8 15-12)

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1. Case: 10-15822 Date Filed: 08/15/2012 Page: 1 of 31 http://www.ca11.uscourts.gov/opinions/ops/201015822.pdf [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE…
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  • 1. Case: 10-15822 Date Filed: 08/15/2012 Page: 1 of 31 http://www.ca11.uscourts.gov/opinions/ops/201015822.pdf [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________It will take some time towade through this one. No. 10-15822 ________________________ Agency No. A075-286-171 ODULENE DORMESCAR, llllllllllllllllllllllllllllllllllllllll Petitioner, versus U.S. ATTORNEY GENERAL, lllllllllllllllllllllllllllllllllllllll lRespondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (August 15, 2012) Before CARNES, PRYOR, and RIPPLE,* Circuit Judges. * Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit, sitting by designation.
  • 2. Case: 10-15822 Date Filed: 08/15/2012 Page: 2 of 31CARNES, Circuit Judge: This is an immigration case involving Odulene Dormescar, a native andcitizen of Haiti. An immigration judge ordered him removed because he had beenconvicted of an aggravated felony. The Board of Immigration Appeals dismissedhis appeal of that order. He has petitioned this Court for review. His petitionpotentially presents three issues. The first is whether this Court has subject matterjurisdiction. If we do, the second issue is whether res judicata bars the Departmentof Homeland Security’s proceedings against Dormescar based on the aggravatedfelony conviction. If it does not, the third issue is whether the Department had theauthority to amend the notice to appear to charge Dormescar as “admitted to theUnited States, but . . . removable” when he was originally charged as aninadmissible “arriving alien.” The procedural history of this case is long andwinding, but mapping it out in some detail is necessary to an understanding of thisleg of the journey and what will probably be the final destination. I. Dormescar was granted lawful permanent resident status in the UnitedStates in 1998.1 On November 29, 2006, when he was returning to the United 1 An alien who is a lawful permanent resident has “the status of having been lawfullyaccorded the privilege of residing permanently in the United States as an immigrant in 2
  • 3. Case: 10-15822 Date Filed: 08/15/2012 Page: 3 of 31States from Haiti, the Department of Homeland Security2 served him with a noticeto appear.3 The notice charged him with inadmissibility under 8 U.S.C. § 1182 asan arriving alien who had been convicted of a crime relating to a controlledsubstance (a 1992 Florida conviction for possession of cocaine) and crimesinvolving moral turpitude (1990 Florida convictions for misdemeanor battery andfelony aggravated assault). A. Those are the events that started this case on the journey leading to thisappeal. We usually would proceed step-by-step with a chronological account ofwhat happened thereafter, but we deviate from that usual practice to take aaccordance with the immigration laws.” 8 U.S.C. § 1101(a)(20); accord 8 C.F.R. § 1.2. 2 This area of the law is plagued with initialisms and acronyms. See, e.g., Haswanee v.U.S. Att’y Gen., 471 F.3d 1212, 1213 n.1 (11th Cir. 2006) (“The Homeland Security Act(‘HSA’), effective November 25, 2002, created the Department of Homeland Security (‘DHS’)and abolished the INS. The HSA transferred INS functions to the DHS.” (citation omitted)). Toavoid two of the initialisms, we will (except in direct quotations) refer to the Department ofHomeland Security as “the Department,” instead of using “DHS,” and to the Board ofImmigration Appeals, after the first time, as “the Board,” instead of using “BIA.” We will usethe initialism “IJ” for immigration judge to avoid clunky repetition. And we will use “IIRIRA”for the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, after first use,both because there are a number of acts in this area of the law and that acronym does have a nicering to it. 3 A notice to appear is the charging document that initiates the removal process andprovides the alien with information including the nature of the proceedings against him, the legalauthority under which the proceedings will be conducted, the acts or conduct alleged to be inviolation of law, the charges against him, and the statutory provisions alleged to have beenviolated. 8 U.S.C. § 1229(a)(1). 3
  • 4. Case: 10-15822 Date Filed: 08/15/2012 Page: 4 of 31terminology detour. The concepts of inadmissibility, deportability, andremovability are crucial to the resolution of this appeal, and they can be confusingand are sometimes confused, so we will try to clarify them before we travel anyfarther. Before the enactment of the Illegal Immigration Reform and ImmigrantResponsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, therewas a “fundamental distinction between excludable aliens and deportable aliens.”Garcia-Mir v. Smith, 766 F.2d 1478, 1483 (11th Cir. 1985). Excludable alienssought admission but had not yet achieved it. Id. at 1483–84. They were legallyconsidered detained at the border, even if they were physically present in theUnited States. Id. Deportable aliens, by contrast, were those who had “succeededin either legally or illegally entering this country.” Id.; see also Clark v. Martinez,543 U.S. 371, 375 n.2, 125 S.Ct. 716, 721 n.2 (2005) (explaining that before theenactment of IIRIRA, “aliens ineligible to enter the country were denominated‘excludable’ and ordered ‘deported,’” and “[p]ost–IIRIRA, such aliens are said tobe ‘inadmissible’ and held to be ‘removable’”); Sicar v. Chertoff, 541 F.3d 1055,1064 n.3 (11th Cir. 2008) (“The IIRIRA replaced the term ‘excludable’ with‘inadmissible.’”). After IIRIRA was enacted, exclusion and deportationproceedings that had been separate and distinct were merged into unified 4
  • 5. Case: 10-15822 Date Filed: 08/15/2012 Page: 5 of 31“removal” proceedings, which determine whether an alien is inadmissible (not yetadmitted) or deportable (admitted but removable). See 8 U.S.C. § 1229a(a)(1)(“An immigration judge shall conduct proceedings for deciding the inadmissibilityor deportability of an alien.”); Jama v. Immigration and Customs Enforcement,543 U.S. 335, 349, 125 S.Ct. 694, 704 (2005) (“Removal is a new procedurecreated in 1996 through the fusion of two previously distinct expulsionproceedings, ‘deportation’ and ‘exclusion.’”). A removal proceeding is generally“the sole and exclusive procedure for determining whether an alien may beadmitted to the United States or, if the alien has been so admitted, removed fromthe United States.” 8 U.S.C. § 1229a(a)(3). The enactment of IIRIRA broadened the scope of inadmissibility by alteringthe status of lawful permanent residents returning from brief trips outside of theUnited States. See Vartelas v. Holder, ___ U.S. ___, 132 S.Ct. 1479, 1485 (2012).Before IIRIRA, “lawful permanent residents who had committed a crime of moralturpitude could . . . return from brief trips abroad without applying for admissionto the United States.” Id. After IIRIRA, lawful permanent residents returningfrom abroad became “subject to admission procedures, and, potentially, to removalfrom the United States on grounds of inadmissibility.” Id. A lawful permanentresident is now inadmissible if he has been convicted of a crime involving moral 5
  • 6. Case: 10-15822 Date Filed: 08/15/2012 Page: 6 of 31turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I). And regardless of whether an alien haslawful permanent resident status, any “alien who is convicted of an aggravatedfelony at any time after admission is deportable.” Id. § 1227(a)(2)(A)(iii). As theSupreme Court explained, some crimes that might make an alien inadmissible willnot necessarily make him deportable: Although IIRIRA created a uniform removal procedure for both excludable and deportable aliens, the list of criminal offenses that subject aliens to exclusion remains separate from the list of offenses that render an alien deportable. These lists are “sometimes overlapping and sometimes divergent.” Judulang v. Holder, 565 U.S. ––––, ––––, 132 S.Ct. 476, 479, 181 L.Ed.2d 449 (2011). Pertinent here, although a single crime involving moral turpitude may render an alien inadmissible, it would not render her deportable. See 8 U.S.C. § 1182(a)(2) (listing excludable crimes); § 1227(a)(2) (listing deportable crimes).Vartelas, 132 S.Ct. at 1485 n.3. To summarize, a conviction for a crime involving moral turpitude makes analien inadmissible. See id.; 8 U.S.C. § 1182(a)(2)(A)(i)(I). A conviction for anaggravated felony after admission makes an alien deportable, see id. §1227(a)(2)(A)(iii), and as a result he can be classified as admitted but removable.See id. § 1229a(e)(2)(B). The term “removable” encompasses the termsinadmissible and deportable aliens, and it is defined as: “(A) in the case of an aliennot admitted to the United States, that the alien is inadmissible under section 1182 6
  • 7. Case: 10-15822 Date Filed: 08/15/2012 Page: 7 of 31of this title, or (B) in the case of an alien admitted to the United States, that thealien is deportable under section 1227 of this title.” Id. § 1229a(e)(2)(A)–(B). Analien in removal proceedings “may be charged with any applicable ground ofinadmissibility under section 1182(a) of this title or any applicable ground ofdeportability under section 1227(a).” Id. § 1229a(a)(2). Dormescar, as we have mentioned, was first charged with inadmissibilityunder 8 U.S.C. § 1182 as an arriving alien who had been convicted of a crimerelating to a controlled substance and crimes involving moral turpitude. That wasin November of 2006. Now we will return to what happened next. B. After the Department served Dormescar with the notice to appear inNovember 2006, the Secret Service took him into custody based on a warrantcharging him with possession of counterfeited securities. About two months later,on February 5, 2007, Dormescar pleaded guilty in federal court to one count ofuttering and possessing a counterfeited security in violation of 18 U.S.C. § 513(a).On April 25, 2007, the district court entered judgment on Dormescar’s guilty plea,and he was convicted of the crime. The district court sentenced him to twelvemonths in prison. 7
  • 8. Case: 10-15822 Date Filed: 08/15/2012 Page: 8 of 31 On December 10, 2007, the Department filed in the immigration court thenotice to appear that it had served on Dormescar in November of 2006 when hewas returning to the United States from Haiti. Even though the notice was servedon Dormescar five months before his April 2007 counterfeiting conviction, it wasnot filed with the immigration court until eight months after that conviction. TheDepartment could have, but did not, amend that notice to appear to include thecounterfeiting conviction. Instead, the notice charged him with inadmissibilitybased on a crime relating to a controlled substance (the 1992 cocaine conviction)and crimes involving moral turpitude (the 1990 misdemeanor battery and felonyaggravated assault convictions). A few months after the Department filed the notice to appear with theimmigration court in December 2007, Dormescar filed a motion to terminate theproceedings, making three assertions, all of which he ultimately established: his1990 cocaine conviction had been vacated; the 1992 misdemeanor batteryconviction was not a crime involving moral turpitude; and he had not beenconvicted of felony aggravated assault. A hearing on the motion was scheduledfor March 2008. Sometime before or during that hearing, the Department filed acopy of the record of Dormescar’s 2007 counterfeiting conviction, a copy of which 8
  • 9. Case: 10-15822 Date Filed: 08/15/2012 Page: 9 of 31was given to Dormescar’s counsel at the hearing.4 The immigration judge gaveDormescar a continuance to assess the impact of that conviction on his case. About a week later Dormescar filed a supplement to his motion to terminatethe proceedings, arguing that because the Department had not charged him withinadmissibility based on his 2007 counterfeiting conviction, the IJ could notconsider it in determining removability. The IJ denied Dormescar’s motion. Inhis written order the IJ acknowledged that the Department had failed to establishthat Dormescar was inadmissible because of the 1990 and 1992 convictionsalleged in the notice. The IJ ruled, however, that Dormescar was an inadmissiblealien because his 2007 counterfeiting conviction was a crime involving moralturpitude and that he was removable for that reason. The IJ also ruled thatDormescar was not eligible for cancellation of removal because the counterfeitingconviction was an “aggravated felony” under the Immigration and NaturalizationAct. 4 It is unclear from the record exactly when the Department filed with the immigrationcourt the record of Dormescar’s counterfeiting conviction. The copy of the conviction record inthe record on appeal does not have a filing date stamped or written on it. In a written decisionissued on November 18, 2008, the immigration judge stated that counsel for the Department filedthe conviction record with the immigration court at the March 2008 hearing, but the hearingtranscript itself does not indicate that any motion was made to file the document in open courteither before or after the IJ asked Dormescar’s counsel about the counterfeiting conviction.Instead, the transcript shows that during that hearing Dormescar’s counsel told the IJ that he hadnot been served with a copy of the conviction record; the IJ had a copy made and gave it to him. 9
  • 10. Case: 10-15822 Date Filed: 08/15/2012 Page: 10 of 31 Dormescar appealed the IJ’s order to the Board of Immigration Appeals.While that appeal was pending, the Department filed a motion asking the Board toremand the case to the IJ so that the Department could amend the notice to add“factual allegations regarding [Dormescar’s] criminal history—including hisconviction for a crime related to counterfeiting—and any necessary additionalcharges of removability.” In an order issued on September 9, 2008, the Board “sustained”Dormescar’s appeal, denied the Department’s motion to remand, and terminatedthe removal proceedings. “Because [Dormescar’s] 2007 conviction was notalleged in the Notice to Appear or a subsequent filing of additional charges,” theBoard reasoned, “it cannot be a basis for removability.” The Board explained:“The Immigration Judge properly concluded that the two convictions alleged inthe Notice to Appear did not support the charges of removability. Accordingly,[Dormescar] is not removable as charged, and these proceedings should have beenterminated.” The Department’s motion to remand was denied because it was“general in nature and [did] not specify what additional allegations or charges the[Department] would file if the record is remanded, or why such allegations orcharges were not previously lodged.” Because the Department had “not provided 10
  • 11. Case: 10-15822 Date Filed: 08/15/2012 Page: 11 of 31a sufficient basis for a remand,” the Board denied the motion and terminated theremoval proceedings. So ended the proceedings that we will call Dormescar I. II. On September 12, 2008, just three days after the Board issued its DormescarI decision, the Department served Dormescar with a new notice to appear, which itfiled with the immigration court several days later. This second notice to appeardesignated Dormescar as an arriving alien and alleged that he was inadmissiblebased on his 2007 counterfeiting conviction, which is a crime involving moralturpitude. And so began the proceedings that we will call Dormescar II. The IJ held a hearing on October 1, 2008. He explained that he wasconsidering certifying the case to the Board because it had not addressed inDomescar I the issue of whether Dormescar had been admitted to the UnitedStates. Whether he had been admitted is important. An arriving alien who hasbeen convicted of a crime of moral turpitude is inadmissible, see 8 U.S.C. §1182(a)(2)(A)(i)(I), but an admitted alien who has been convicted of anaggravated felony “at any time after admission is deportable,” id. §1227(a)(2)(A)(iii). As the Second Circuit explained: Whether an alien has been admitted or is seeking admission is still a relevant distinction for purposes of determining potential grounds for removal. If the alien is seeking admission, he is charged in removal 11
  • 12. Case: 10-15822 Date Filed: 08/15/2012 Page: 12 of 31 proceedings as an inadmissible alien under 8 U.S.C. § 1182. If the alien has been admitted, however, he is charged in removal proceedings as a deportable alien under 8 U.S.C. § 1227.Cruz-Miguel v. Holder, 650 F.3d 189, 197 n.13 (2d Cir. 2011). At the hearing before the IJ in October 2008, Dormescar argued thatbecause the Board’s September 9, 2008 order had terminated the proceedingsagainst him in Domescar I, he was deemed admitted on that date. The IJ directedthe parties to submit briefs on that issue. While the IJ was considering whether toterminate the proceedings or certify the case to the Board, Dormescar filed anothermotion to terminate the proceedings. This motion contended that: (1) he wasadmitted to the United States by operation of law when the Board terminated theproceedings in Dormescar I; (2) at the end of Dormescar I his immigration statuswas “lawful permanent resident,” not “arriving alien”; (3) because of that status,he should have been charged as admitted but removable under 8 U.S.C. § 1227instead of being charged with inadmissibility under 8 U.S.C. § 1182; and (4) resjudicata barred any further proceedings after Domescar I. On the res judicataissue, he argued that the Board’s September 9, 2008 order in Dormescar I was afinal judgment on the merits, that the Department knew about and could havecharged the 2007 conviction as grounds for removal during the Dormescar I 12
  • 13. Case: 10-15822 Date Filed: 08/15/2012 Page: 13 of 31proceedings, and because it had failed to make the charge at that time, res judicatabarred it from being made in Dormescar II, the current proceedings. The Department responded that res judicata was not a bar because theDormescar I removal proceedings had been based on the charge that Dormescarwas inadmissible because of his 1990 misdemeanor battery conviction and his1992 cocaine conviction, while Dormescar II was based on a different charge.That different charge is that he was inadmissible because of his 2007counterfeiting conviction, which is a crime of moral turpitude. Because twodifferent causes of action were involved in the two proceedings, the Departmentargued, the outcome in Domescar I did not bar the charge in Dormescar II. TheDepartment also argued that Dormescar was properly charged as an inadmissiblearriving alien instead of as an admitted but removable alien because applicationsfor admission are considered to be of a continuing nature, and his admissibilitywas still undetermined when he was convicted in 2007. The IJ issued an order in November of 2008. In his order the IJ pointed outthat the Board’s September 9, 2008 order in Dormescar I had not expresslygranted Dormescar admission into the United States. The IJ also observed that“the question of whether [Dormescar] is removable based upon his conviction of acounterfeiting offense has not yet been subject to final consideration.” For those 13
  • 14. Case: 10-15822 Date Filed: 08/15/2012 Page: 14 of 31reasons, and relying on Board precedent which established that the application foradmission was “continuing” in nature, the IJ determined that Dormescar was anarriving alien who had been correctly charged with inadmissibility. See Matter ofKazemi, 19 I. & N. Dec. 49, 51 (BIA 1984) (“[A]n application for admission to theUnited States is a continuing application and admissibility is determined on thebasis of the law and the facts existing at the time the application is finallyconsidered.”); 8 U.S.C. § 1182(a)(2)(A)(i)(I) (providing that any alien wh
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