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Ninth Circuit on How Collateral Estoppel Applies in Immigration Proceedings                          By Joseph P. Whalen (...
underlying “potential benefit” and the final relief really requires an exercise ofdiscretion. The final burden remains wit...
749, 750 (9th Cir. 1987) (per curiam) (doctrine applies even           when the agency reopens a removal proceeding for ne...
[4] The Government had a fair opportunity to litigate thecircumstances of the 2003 and 2004 attacks at the first hearing.T...
issue of the nature of the 2003 and 2004 attacks. The ramificationsof those past events were plainly resolved in Oyeniran’...
arrest warrant. See Boer-Sedano v. Gonzales, 418 F.3d 1082,      1091-92 (9th Cir. 2005) (an applicant’s return trip to hi...
(4) A former prisoner of war of the Nazis who was forced to serve, upon      penalty of death, as a concentration camp gua...
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Ninth circuit on how collateral estoppel applies in immigration proceedings

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Ninth circuit on how collateral estoppel applies in immigration proceedings

  1. 1. Ninth Circuit on How Collateral Estoppel Applies in Immigration Proceedings By Joseph P. Whalen (March 9, 2012)Like a great many folks, I am constantly searching for clarifications on the finerpoints and nuanced approaches involved in arriving at the answers to questions ofgreat importance in the realm of Immigration, Nationality, and Citizenship law. Ina Precedent issued on March 6, 2012, the Ninth Circuit Court of Appeals offeredsome keen insight on the issue of Collateral Estoppel in Immigration Proceedings.To be more specific, the case involved a reconsideration of a grant of Deferral [ofRemoval] under CAT (United Nations Convention against Torture and OtherCruel, Inhuman or Degrading Treatment or Punishment). CAT Deferral is abastion of last resort for individuals who would not qualify for any other form ofrelief usually because of serious criminal activity inside the United States. Out of asense of beneficence and common decency, the United States subscribed to theU.N. Convention and has pledged not to return, extradite or refoul any person to astate where there are substantial grounds for believing that he would, more likelythan not, be in danger of torture or of being killed.It must be kept in mind that there are different varieties of “ImmigrationProceedings”. This particular case arose from the Removal Proceedings context.Such a proceeding is primarily “adversarial” in nature with the Government (ICECounsel) seeking to have an individual ejected from the United States for a specificreason (charge of removability) and the alien respondent(s) seek(s) to defeat thecharge or obtain relief from removal. The parties present their arguments both in-person and in-writing to the Immigration Judge (IJ). The IJ makes various findingsbased on the evidence presented. Such evidence may be in-writing (certainapplications, briefs, affidavits, and various other documentation) as well as oraltestimony. In addition, since the IJ actually sees the person, (s)he may considerdemeanor in determining credibility and the proper weight to be given totestimony.In Removal Proceedings, the alien may choose to fight the charges or may admitthem and seek relief from removal. The initial burden of proof is on theGovernment. If an alien admits the charges then the Government has met itsburden of proof. At that point, the burden shifts to the alien to prove eligibility forrelief. Such relief is usually based on some form of benefit under the INA. If abenefit is actually an “entitlement” then the alien has a much stronger position andthings are likely to be resolved in the alien’s favor. Most benefits under theimmigration laws are not true entitlements but rather are a “basis for” a benefit, aninterim benefit, or a preliminary step towards a benefit. Under such circumstances,the true benefit, which would result in relief from removal, is merely based on that Page 1 of 7
  2. 2. underlying “potential benefit” and the final relief really requires an exercise ofdiscretion. The final burden remains with the applicant to demonstrate that they aredeserving of a favorable exercise of discretion.Other times relief is independent from an underlying benefit, and thus is anentitlement. An entitlement is a legally enforceable right. The best example of anentitlement that I can think of is a claim to citizenship. The United States cannotdeport a United States Citizen. Certain other provisions under the law areentitlements but for specific reasons that bar someone from receipt of thatotherwise entitlement. For instance, if you can establish that you meet the criteriafor asylum, you get it unless barred for a specific reason. As for withholding orcancellation of removal/deportation, if found eligible, you will get it unlessspecifically barred or excluded from consideration or receipt.Conversely, when an alien is strictly seeking a benefit via an application orpetition, the form of such proceedings is markedly different. In the benefitscontext, the “inquisitorial” approach is most appropriately used. In this approach,all parties (at least in theory) should be seeking the truth of the matter based uponthe merits of the request or claim based on a close examination of the evidenceoffered as proof. The issues and/or concepts of collateral estoppel, equitableestoppel, res judicata, nunc pro tunc, etcetera, do not apply equally across thevarious contexts involved. Even the Ninth Circuit in the excerpt that followsacknowledges that such concepts apply only to “certain issues of law or fact”.Additionally, I say “various contexts” because some additional types ofproceedings have an influence on the outcome of the two contexts discussedherein. Criminal cases and matters as well as matters within the realms of nationalsecurity and international relations or diplomacy do have a bearing on someimmigration-related cases. From here, I will let the Ninth Circuit speak for itself.Oyeniran v. Holder, No. 09-73683(9th Cir. March 6, 2012)1, explains: “IV. Discussion A. Collateral Estoppel Applies in Immigration Proceedings [1] It is beyond dispute that the doctrine of collateral estoppel (or issue preclusion) applies to an administrative agency’s determination of certain issues of law or fact involving the same alien in removal proceedings. Allen v. McCurry, 449 U.S. 90, 94 (1980); Ramon-Sepulveda v. INS, 824 F.2d1 See: http://www.ca9.uscourts.gov/datastore/opinions/2012/03/06/09-73683.pdf Page 2 of 7
  3. 3. 749, 750 (9th Cir. 1987) (per curiam) (doctrine applies even when the agency reopens a removal proceeding for new evidence); Matter of Fedorenko, 19 I. & N. Dec. 57, 57 (BIA 1984)2 (doctrine conclusively establishes the ultimate facts of a subsequent deportation proceeding and precludes reconsideration of issues of law resolved by the prior judgment — absent a change in the controlling law). Collateral estoppel applies to a question, issue, or fact when four conditions are met: (1) the issue at stake was identical in both proceedings; (2) the issue was actually litigated and decided in the prior proceedings; (3) there was a full and fair opportunity to litigate the issue; and (4) the issue was necessary to decide the merits. Montana v. United States, 440 U.S. 147, 153-54 (1979); Clark v. Bear Stearns & Co., Inc., 966 F.2d 1318, 1320 (9th Cir. 1992). [2] We conclude that the BIA erred by rehashing the historical facts and its findings of law as applied to the 2003 and 2004 incidents of violence that formed the basis of its 2005 decision to grant deferral. We hold that the Government is conclusively barred from re-litigating the following findings: the attacks in 2003 and 2004 constituted torture as that term is defined by the CAT based upon the injuries suffered by the Archbishop and other family members; the acts of violence were intended to punish or intimidate the religious and political beliefs of the Archbishop due to his prominent role in criticizing the Nigerian government, opposing Sharia law, and converting Muslims to Christianity; the attackers were Islamic extremists; the past attacks threatened Oyeniran’s safety by virtue of his father’s activities, the family relationship, and the culture of Nigeria; and the government of Nigeria was either involved or acquiesced in the prior attacks. [3] These issues were “actually litigated” in 2005 and the findings were “necessarily determined in the prior proceeding” to grant Oyeniran CAT relief in 2005. United States v. Lasky, 600 F.2d 765, 769 (9th Cir. 1979).2 See: http://www.justice.gov/eoir/vll/intdec/vol19/2963.pdf Page 3 of 7
  4. 4. [4] The Government had a fair opportunity to litigate thecircumstances of the 2003 and 2004 attacks at the first hearing.The Government specifically attacked the evidence inthat very proceeding, for example, by cross examining thewitnesses and challenging the weight of the evidence. All ofthe weaknesses mentioned by the BIA in 2009 were evidentwhen Oyeniran first offered the evidence in 2005.The Government argues that the 2009 decision is justifiedby the Archbishop’s testimony, as he did not appear in the2005 proceedings. We disagree. The introduction of new evidenceon a matter previously resolved is not an exception tocollateral estoppel. Ramon-Sepulveda, 824 F.2d at 750-51; seeBravo-Pedroza v. Gonzales, 475 F.3d 1358, 1359 (9th Cir.2007) (“Res judicata bars the government from bringing asecond case based on evidence . . . that it could have presentedin the first case.”); 18 Moore’s Fed. Practice§ 132.02[2][c], [d] (3d ed. 2010) (distinguishing evidence of“changed circumstances” from evidence that is “historical innature”).[5] Moreover, the BIA’s flip-flop on past issues is unsupportedand arbitrary because the additional evidence introducedduring the 2009 hearing was stronger than the evidencepresented in 2005. In 2005, Oyeniran’s testimony about theviolence was hearsay, but in 2009 the Archbishop testified asa percipient witness to the attacks. The Archbishop corrobo-rated that the attacks had been committed by Islamic extremistswho would harm his children. He testified that theattackers in 2003 wore distinctive Sharia police uniforms. Heintroduced another police report confirming that the attackersin 2004 had come “to eliminate his children.” Additionally,the violence prompted the Archbishop’s church to hire securityprotection “against Islamic Terrorists.” In all, the Archbishop’stestimony reinforced and was fundamentallyconsistent with the evidence supporting his son’s earlier applicationfor CAT protection.We are not persuaded by the Government’s argument thatthe 2009 hearing involved a different claim that was not identicalto the 2005 claim. Instead, we find a clear identity on the Page 4 of 7
  5. 5. issue of the nature of the 2003 and 2004 attacks. The ramificationsof those past events were plainly resolved in Oyeniran’sfavor in the prior CAT proceeding. Nor do the new factsexplain the BIA’s complete reversal of its view of past events.In sum, this case is a textbook example that “repose is justifiedon the sound and obvious principle of judicial policy thata losing litigant deserves no rematch after a defeat fairly suffered,in adversarial proceedings, on an issue identical in substanceto the one he subsequently seeks to raise.” Astoria Fed.Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107 (1991).B. New Evidence that Arose after the First Decision Impacts Deferral[6] The BIA erred when it reasoned that collateral estoppeldid not apply because the regulations state that termination ofdeferral is subject to “a de novo determination.” 8 C.F.R.§ 1208.17(d)(3). The BIA failed to recognize that collateralestoppel applies to findings made in the initial determinationand that new evidence and changed circumstances now permitit to reconsider the substantive question of whether the alienwith deferral status is more likely than not to be tortured inthe future if returned home.It is obvious that the initial decision to grant deferral underthe CAT does not forever bind the agency to the ultimate conclusion.The very nature of deferral permits reevaluation ofwhether it is more likely than not that an alien will be torturedin the future based on new facts. Al Mutarreb v. Holder, 561F.3d 1023, 1031 (9th Cir. 2009) (in a new proceeding, theGovernment can present “facts that have arisen or come tolight after” the original proceeding took place); Belayneh v.INS, 213 F.3d 488, 491-92 (9th Cir. 2000) (conditions in acountry can change over time).On remand, the BIA may consider events that occurredafter the 2005 hearing. The BIA must evaluate any new evidencein light of the prior findings on past events to decideOyeniran’s current application for deferral from removal. Thenew evidence includes, but is not limited to, evidence such asthe circumstances surrounding Oyeniran’s clandestine trip toNigeria in 2007 and, as discussed below, the 2008 Sharia Page 5 of 7
  6. 6. arrest warrant. See Boer-Sedano v. Gonzales, 418 F.3d 1082, 1091-92 (9th Cir. 2005) (an applicant’s return trip to his country is relevant to his fear of future persecution, but standing alone it is not fatal to an asylum claim). At the same time, the BIA’s prior decision conclusively resolved certain past events and those historical events cannot be re-litigated. The BIA must respect the principle of repose. [7] Nonetheless, we decline Oyeniran’s invitation to reach the merits of whether substantial evidence supports the decision to deny his application for deferral. The BIA should have an opportunity to conduct a proper analysis of the entire record of relevant evidence.”Here is the primary BIA case which is cited by the ninth Circuit:Matter of Fedorenko, 19 I&N Dec. 57 (BIA 1984) held: (1) Under the judicially-developed doctrine of collateral estoppel, a prior denaturalization judgment conclusively establishes the "ultimate facts" of a subsequent deportation proceeding, i.e., those facts upon which an aliens deportability and eligibility for relief from deportation are to be determined, and precludes reconsideration of issues of law resolved by the prior judgment, so long as the issues in the prior suit and the deportation proceeding arise from virtually identical facts and there has been no change in the controlling law. (2) The doctrine of collateral estoppel applies in deportation proceedings when there has been a prior judgment between the parties that is sufficiently firm to be accorded conclusive effect, the parties had a full and fair opportunity to litigate the issues resolved by and necessary to the outcome of the prior judgment, and the use of collateral estoppel is not unfair. Title v. INS, 322 F.2d 21 (9th Cir. 1963), distinguished. (3) The language in section 242(b) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1252(b)(1982), which provides that a deportation proceeding shall be "the sole and exclusive procedure for determining the deportability of an alien," does not preclude the use of collateral estoppel in a deportation proceeding; rather this language was intended to exempt deportation proceedings from the provisions of any other law, most particularly the Administrative Procedure Act of June 11, 1946, 60 Stat. 237, repealed by Pub. L. No. 89-554, 80 Stat. 378 (1966). Page 6 of 7
  7. 7. (4) A former prisoner of war of the Nazis who was forced to serve, upon penalty of death, as a concentration camp guard is deportable pursuant to section 241(a)(19) of the Act, 8 U.S.C. Sec. 1251(a)(19)(1982), for assisting the Nazis in persecuting others, even if his actions were involuntary and he personally harbored no racial or religious prejudice against Jews; the objective effect of an aliens actions, not his motivation and intent, controls in determining whether he "assisted" in persecution within the meaning of section 241(a)(19). (5) The 1981 amendment to section 244(a) of the Act, 8 U.S.C. Sec. 1254(a)(1982), which withdrew suspension of deportation as an available form of relief in the case of aliens found deportable pursuant to section 241(a)(19) for assisting the Nazis in persecution, is properly applicable to an application for suspension of deportation filed prior to the 1981 amendment.I have not checked to see if any of the above holdings have been revisited,modified, distinguished or overruled. In light of the current cases involving theTerrorist Related Inadmissibility Grounds (TRIG) and/or the persecutor bar it is adistinct possibility that something may have changed already or soon will.Attorneys who represent asylum-seekers would not be wasting their time checkinginto these cases and those cited therein. Best of luck!See also:Fedorenko v. United States, 449 US 490 - 1981 - Supreme CourtUnited States v. Fedorenko, 597 F. 2d 946 - 1979 - Court of Appeals, 5thCircuitUnited States v. Fedorenko, 455 F. Supp. 893 - 1978 - Dist. Court, SD Florida Page 7 of 7

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