United States 5th Circuit Court of Appeals Reports
ANDRADE v. GONZALES, 459 F.3d 538 (5th Cir. 2006) Adalberto ANDRADE, Petitioner-Appellant, v. 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. No. 04-30247. United States Court of Appeals, Fifth Circuit. August 1, 2006. Page 539
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Rebecca L. Hudsmith, Fed. Pub. Def. (argued), Lafayette, LA, for Andrade.
Katherine Wharton Vincent, Asst. U.S. Atty. (argued), Sara K. Blackwell, Lafayette, LA, for 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.
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.
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. Page
542
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 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 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 Page 543 Zadvydas v.
Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653
(2001).
The Government is correct that Andrade’s detention is now
governed by § 1231. Section 1231 defines the
circumstances under 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).
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 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 Page
544 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.[fn1]
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 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 Page 545 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.[fn2]
The doctrine of res judicata can apply to adjudicatory
removal proceedings. Medina v. INS, 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 straightforward 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
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 alien[fn3] 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.
[fn1] 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).
[fn2] 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,
110 L.Ed.2d 387 (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.
[fn3] It is worth noting that the petitioner in Medina had
been granted citizenship, making the Government’s actions
inapplicable under the INA. Page 546