754 F.3d 528
8th Cir.2014Background
- Cabrera Cardona, a native and citizen of El Salvador, seeks review of a BIA decision dismissing his removal appeal.
- He was granted lawful permanent residence in 1989 and was convicted in 2002 of manslaughter and tampering with evidence in Nebraska.
- DHS previously removed based on manslaughter as a crime of violence, but the BIA later terminated the initial removal proceeding, deeming manslaughter not a crime of violence.
- In 2011, DHS started removal proceedings again, this time based on tampering with evidence as obstruction of justice, which Cabrera Cardona admitted.
- Cabrera Cardona argued res judicata barred the second removal proceeding because the offenses arose from the same nucleus of operative fact.
- The IJ and BIA held that res judicata did not apply and ordered removal; the BIA noted administrative preclusion principles are more flexible but still found no bar.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does res judicata bar the second removal proceeding? | Cabrera Cardona contends same nucleus of fact; barred | DHS argues different convictions; different causes of action | Not barred; two offenses are different causes of action |
| Were the res judicata elements met under immigration context? | Prior judgment compels barring removal | Elements not satisfied; different factual predicates | Elements not met |
| Does this court have jurisdiction to review the res judicata issue in removal proceedings? | Jurisdiction exists to review legal questions | Narrow jurisdiction; limits apply | Court has jurisdiction to review as a question of law |
| If res judicata applied, would it apply given the facts here? | Res judicata should prevent re-litigation | Administrative context permits flexibility; not applicable here | Court declines to decide broader applicability; here no bar |
Key Cases Cited
- Lane v. Peterson, 899 F.2d 737 (8th Cir. 1990) (elements of res judicata require final merits judgment and same parties)
- Murphy v. Jones, 877 F.2d 682 (8th Cir. 1989) (same transaction/pragmatic approach to 'same' claim)
- Poe v. John Deere Co., 695 F.2d 1103 (8th Cir. 1982) (same nucleus of operative fact test for relitigating claims)
- Duhaney v. Att’y Gen., 621 F.3d 340 (3d Cir. 2010) (differences in elements may indicate separate claims)
- United States v. Brekke, 97 F.3d 1043 (8th Cir. 1996) (res judicata application is a question of law)
- Dormescar v. U.S. Att’y Gen., 690 F.3d 1258 (11th Cir. 2012) (jurisdiction to review res judicata in removal actions)
- Johnson v. Whitehead, 647 F.3d 120 (4th Cir. 2011) (reviewing issue preclusion in criminal-alien-removal action)
- Ali v. Mukasey, 529 F.3d 478 (2d Cir. 2008) (reviewing issue preclusion)
- Duvall v. Att’y Gen., 436 F.3d 382 (3d Cir. 2006) (reviewing issue preclusion)