Jackson Ndungu v. Attorney General United States, 126 F.4th 150

Jackson Ndungu, a Kenyan national, lawfully entered the U.S. in 2008 via the Diversity Visa program, settling in Pennsylvania.
While residing in the U.S., Ndungu was convicted twice (2014 and 2019) of felony vehicular fleeing or attempting to elude a police officer, in violation of Pennsylvania law, and also had other minor convictions in between.
The Department of Homeland Security (DHS) charged Ndungu with removability under 8 U.S.C. § 1227(a)(2)(A)(ii), which allows deportation of noncitizens convicted of two or more crimes involving moral turpitude (CIMTs) not arising out of a single scheme.
Immigration courts, and later the Board of Immigration Appeals (BIA), found these offenses to be CIMTs and ordered removal.
Ndungu petitioned the Third Circuit, challenging both the legal basis for removability and the non-application of res judicata (claim preclusion) to his prior proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does res judicata preclude DHS from reusing a prior conviction as a basis for removal?	2017 proceedings addressed the 2014 conviction; it shouldn't be basis for new removal.	The new charge is based on a different combination of convictions (2014 and 2019), not the old set from 2017.	No preclusion: 2019 removal action was not the same cause of action due to the new 2019 conviction.
Are felony fleeing/attempting to elude convictions CIMTs under the categorical approach?	The statute is overbroad; not every violation reflects moral turpitude.	All convictions under the statute involve reprehensible conduct qualifying as CIMT.	Not CIMTs: Grading factor (iii) sweeps in non-reprehensible conduct, so convictions can't be CIMTs categorically.
Did the BIA misapply the "realistic probability" exception under the categorical approach?	BIA incorrectly used realistic probability to uphold CIMT status.	BIA's application was correct; focus is on minimum conduct likely prosecuted.	BIA erred: Realistic probability can’t be used to create a categorical match in this context.
Should the case be remanded for agency reconsideration or can the court resolve the legal question?	Court should resolve; no fact issues requiring remand.	Case should possibly be remanded unless clearly resolved.	No remand needed: only a legal issue remains, allowing the court to grant the petition outright.

Jordan v. De George, 341 U.S. 223 (1951) (defining crimes involving moral turpitude for immigration purposes)
Mathis v. United States, 579 U.S. 500 (2016) (categorical and modified categorical approach for comparing statutes)
Taylor v. United States, 495 U.S. 575 (1990) (categorical approach to matching state and federal offenses)
Shepard v. United States, 544 U.S. 13 (2005) (permissible documents for categorical/matching analysis)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing statutory max are elements not means)
Descamps v. United States, 570 U.S. 254 (2013) (role of divisible statutes in the categorical approach)
Moncrieffe v. Holder, 569 U.S. 184 (2013) (realistic probability in categorical matching)