Cruz Rodriguez v. Garland, 993 F.3d 340

Cruz Rodriguez, a Honduran national, entered as an asylee (2010) and became a lawful permanent resident in 2011 after adjustment of status.
In 2012 he pleaded guilty to two counts of robbery and received deferred adjudication probation; DHS charged removability under 8 U.S.C. § 1227(a)(2)(A)(i) (crime involving moral turpitude).
In 2014 an IJ readjusted his status to LPR and granted a § 212(h) waiver, so he remained in the U.S.; the Government did not appeal.
After a 2015 probation violation, the state court formally adjudicated guilt and imposed a two-year sentence; in 2016 DHS charged removability under 8 U.S.C. § 1227(a)(2)(A)(iii) (aggravated felony) based on the same underlying robbery.
The IJ initially terminated proceedings on res judicata grounds; the BIA vacated and remanded, and ultimately sustained the aggravated-felony charge. Cruz appealed to the Fifth Circuit.
Cruz raised three issues on review: (1) res judicata barred the second removability charge, (2) he was not removable under § 1227(a)(2)(A)(iii) because the conviction predated readjustment, and (3) the BIA denied due process by failing to address his arguments; two issues remained pending before the BIA.

Issue	Cruz Rodriguez's Argument	Government's Argument	Held
Whether res judicata bars the second removal charge	The prior IJ/BIA adjudication on removability prevents relitigation based on the same underlying conviction	The second proceeding relied on a different statutory subsection (aggravated-felony provision) that was not available at the first proceeding	Res judicata does not bar the second charge because it invokes a different statutory provision and a newly available aggravated-felony ground
Whether Cruz is removable under § 1227(a)(2)(A)(iii) because conviction predated status readjustment	He was convicted before readjustment, so the aggravated-felony removability ground does not apply	The Government maintains removability under the aggravated-felony subsection based on the formal adjudication and subsequent events	Not decided on the merits — dismissed for lack of jurisdiction because the BIA has not yet ruled on the pending motion to reconsider
Whether the BIA violated due process by not fully addressing his res judicata/due-process arguments	BIA’s failure to consider these claims on direct appeal denied him procedural due process	BIA can address and cure any alleged errors on reconsideration; issues are unexhausted	Not decided on the merits — dismissed for lack of jurisdiction because the constitutional claim was not raised to and addressed by the BIA first

Peters v. Ashcroft, 383 F.3d 302 (5th Cir. 2004) (holds a later removal proceeding under a different subsection is not barred by res judicata even if based on the same conviction)
Chavez-Mercado v. Barr, 946 F.3d 272 (5th Cir. 2020) (reaffirms that res judicata is inapplicable where subsequent proceedings invoke a different statutory provision)
Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559 (5th Cir. 2005) (standard of review for legal questions like res judicata is de novo)
Omari v. Holder, 562 F.3d 314 (5th Cir. 2009) (explains administrative exhaustion requirements before the BIA and that issues must be raised to the agency first)
Roy v. Ashcroft, 389 F.3d 132 (5th Cir. 2004) (jurisdictional rule tying review to exhaustion of administrative remedies)
Singh v. U.S. Att’y Gen., 561 F.3d 1275 (11th Cir. 2009) (aggravated-felony ground unavailable at time of first proceeding can preclude res judicata)
Alvear-Velez v. Mukasey, 540 F.3d 672 (7th Cir. 2008) (same principle: ground invoked later was unavailable in first proceeding)