Lozano v. Sessions
705 F. App'x 52
2d Cir.2017Background
- Petitioner Jaime Daniel Lozano, a Colombian national, was ordered removed by an IJ; the BIA affirmed on Jan. 11, 2017.
- Lozano has three convictions the agency treated as crimes involving moral turpitude (CIMTs): 1978 NYPL §160.05 (3rd‑degree robbery), 2008 attempted 3rd‑degree robbery (NYPL §§110, 160.05), and 2015 promoting sexual performance of a child (NYPL §263.15).
- The government charged removability under 8 U.S.C. § 1227(a)(2)(A)(ii) for having two or more CIMTs. Lozano did not dispute that the listed offenses are CIMTs.
- Lozano argued res judicata should bar using his robbery convictions because a prior 2011 removal proceeding charged those convictions as CIMTs and he then received cancellation of removal.
- The BIA rejected Lozano’s res judicata argument, relying on its precedent that a conviction previously relied on in deportability proceedings may be counted again when there is a subsequent conviction or one not disclosed previously.
- The Second Circuit reviewed the IJ and BIA decisions and denied the petition for review, finding Lozano removable based on two CIMTs; the court did not reach the alternative aggravated‑felony/child‑abuse argument.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether convictions previously used in an earlier proceeding that resulted in relief can be re‑relied upon to establish removability for two CIMTs | Lozano: res judicata prevents reuse of the robbery convictions after prior cancellation of removal | Gov’t: prior reliance does not preclude counting convictions again, especially where a subsequent conviction exists or one was not previously disclosed | The court held prior grant of relief does not prevent reusing convictions; Lozano is removable for two CIMTs |
Key Cases Cited
- Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524 (2d Cir. 2006) (court reviewed both IJ and BIA decisions for completeness)
- Chan v. Gantner, 464 F.3d 289 (2d Cir. 2006) (approved BIA’s reasoning that prior grant of relief does not remove conviction from later proceedings)
- Esquivel v. Mukasey, 543 F.3d 919 (7th Cir. 2008) (adopting rule that convictions relied on in prior proceedings may be used again)
- Molina‑Amezcua v. INS, 6 F.3d 646 (9th Cir. 1993) (same rule)
- Molenda v. INS, 998 F.2d 291 (5th Cir. 1993) (same rule)
- INS v. Bagamasbad, 429 U.S. 24 (1976) (court need not decide unnecessary alternative grounds)