Petitioner, Daniel Valencia-Alvarez, a native and citizen of Mexico, seeks relief from the Board of Immigration Appeals’ determinations that he was removable for having been convicted of a controlled substance offense and that he was ineligible for cancellation of removal because his continuous presence in the United States “stopped” at the time he committed the offense. On appeal, Valencia-Alvarez basically advances two arguments. First, he contends that respondent was barred by res judicata from asserting additional charges after the Board of Immigration Appeals (“BIA”) held that his underlying conviction was not an aggravated felony. Second, Valencia-Alvarez argues that the provision of 8 U.S.C. § 1229b(d)(l), enacted as part of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, which “stops” an alien’s accrual of continuous presence in the United States at the time that he commits a crime (sometimes referred to as the “committed an offense” provision), may not be applied retroactively to his 1996 offense. We reject the first argument because the BIA’s 2002 decision was not a final judgment rendered on the merits in a separate action. We reject the second argument because the retroactive application of the “committed an offense” provision to Valencia-Alvarez does not impair any right he possessed when he committed the offense, or when IIRIRA was enacted. Accordingly, the petition for review is denied.
I
Valencia-Alvarez was admitted to the United States on July 4, 1991, and is a lawful permanent resident. On May 9, 1997, he was convicted of a drug offense involving heroin, in violation of § 11352 of California’s Health and Safety Code. Valencia-Alvarez’s criminal activity took place on December 9, 1996. He received a three-year sentence.
On July 29, 1998, the Immigration and Naturalization Service 1 (the Service) charged Valencia-Alvarez with being re *1322 movable for having been convicted of an aggravated felony as defined by 8 U.S.C. § 1101(a)(43). On December 18, 1998, the Immigration Judge (IJ) issued a decision finding that Valencia-Alvarez had been convicted of an aggravated felony. Valencia-Alvarez appealed to the BIA. On August 6, 2002, the BIA found the record insufficient to support the IJ’s conclusion that Valencia-Alvarez’s conviction was for an aggravated felony and remanded to the IJ for further proceedings.
Three days later, the IJ issued an order noting that regardless of whether Valencia-Alvarez’s conviction was for an aggravated felony, he might be removable because his conviction was for a controlled substance offense. The Service was advised that if it intended to file additional charges, it should do so promptly. On August 13, 2002, the Service filed additional charges alleging, inter alia, that Valencia-Alvarez was removable for having been convicted of an offense relating to a controlled substance in violation of 8 U.S.C. § 1227(a)(2)(B)(i). On September 5, 2002, the IJ issued a decision holding that under Ninth Circuit law, Valencia-Alvarez’s conviction was neither an aggravated felony nor “a drug-related removable offense.”
This time the Service appealed to the BIA. In its March 25, 2004 decision, the BIA rejected Valencia-Alvarez’s argument that the Service was barred from lodging additional charges, 2 and agreed with the IJ that the conviction was not for an aggravated felony. The BIA, however, held that Valencia-Alvarez was removable under § 1227(a)(2)(B)(i) because his conviction was related to a controlled substance. The BIA remanded the case to the IJ “to determine [Valencia-Alvarez’s] eligibility for any form of relief from removal.”
On remand, the IJ noted that this was the third time Valencia-Alvarez had been before him. The IJ observed that he was not in a position to review the BIA’s determination that Valencia-Alvarez’s conviction was a crime involving a controlled substance. Rather, he addressed whether Valencia-Alvarez had a “stop time” problem with meeting the seven-year continuous residency requirement for cancellation of removal eligibility.
The crucial criterion for Valencia-Alvarez’s eligibility for cancellation of removal under 8 U.S.C. § 1229b(a) was whether he had seven years of continuous residency in the United States. 3 The IJ determined that he did not have the requisite continuous residency in the United States because, pursuant to 8 U.S.C. § 1229b(d)(l)(B), his residency had “stopped” when he committed the offense. 4 *1323 The IJ also rejected Valencia-Alvarez’s argument that “because he was not placed in removal proceedings until 1998, the stop-time principle should not be applied to him.” Finally, the IJ noted that even if Valencia-Alvarez could somehow qualify for pre-IIRIRA suspension of deportation, he would then face the barrier of old INA section 241(a)(2) [8 U.S.C. § 1254 (repealed by IIRIRA § 308(b)(7)) ], which required “continuous presence of not less than 10 years immediately following the commission of the act.” The IJ ordered Valencia-Alvarez’s removal to Mexico.
Valencia-Alvarez appealed to the BIA, which affirmed the IJ’s decision without an opinion. He then filed a timely petition for review with this court.
II
Pursuant to 8 U.S.C. § 1252(a)(2)(C), we have jurisdiction to review constitutional claims and claims of law raised in a timely petition for review. We agree with the parties that we have jurisdiction to consider the statutory and legal issues raised by petitioner in this case.
5
Because the BIA affirmed the IJ’s decision without an opinion, we review the IJ’s opinion as the final agency decision.
Circu v. Gonzales,
As an initial matter, we reject Valencia-Alvarez’s objections to the BIA’s “streamlining” of his appeal. In
Falcon Carriche v. Ashcroft,
Ill
Valencia-Alvarez, relying heavily on a district court decision,
Murray v. Ashcroft,
The criteria for the application of res judicata, which are not fully set forth in
Murray,
are that there be
& final
judg
*1324
ment, rendered
on the merits in a separate action. See
18 James Wm. Moore et al.,
Moore’s Federal Practice,
§§ 131.30[2]~[3], 131.31[1] (3d ed.2006);
see also Federated Dep’t Stores, Inc. v. Moitie,
None of these criteria is met here. First, the BIA’s August 6, 2002 opinion sustaining Valencia-Alvarez’s appeal was not a final judgment. It concluded with the statement “the record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion and for the entry of a new decision.” Second, the opinion was not a dis-positive decision on the merits as it states:
Given the change of law in the Ninth Circuit, and the ambiguity of the conviction documents, a remand is warranted for further evidence — regarding the respondent’s conviction and whether he is removable as charged.
The lack of a final disposition is reflected in the fact that the parties continued to litigate the matter. On remand, the IJ held that Valencia-Alvarez’s conviction was neither an aggravated felony nor a drug-related offense. On appeal, the BIA affirmed that the conviction was not an aggravated felony, but held that the conviction was related to a controlled substance. Third, Valencia-Alvarez’s first appeal to the BIA was not a separate action. Rather, the BIA’s August 6, 2002 opinion was the first of three BIA decisions in this single case, which is now before us. Thus, the BIA’s 2002 opinion did not bar the Service from bringing additional charges against Valencia-Alvarez because that opinion was not a final decision on the merits in a separate action. 7
IV
Prior to IIRIRA’s effective date, April 1, 1997, an alien in deportation proceedings continued to accrue time toward satisfying the seven-year residency requirement for suspension of deportation during the pen-dency of his or her immigration proceedings.
Jimenez-Angeles v. Ashcroft,
The Supreme Court has noted that “[d]espite the dangers inherent in retroactive legislation, it is beyond dispute that, within constitutional limits, Congress has the power to enact laws with retrospective effect.”
INS v. St. Cyr,
This Court has worked out a sequence of analysis when an objection is made to applying a particular statute said to affect a vested right or to impose some burden on the basis of an act or event preceding the statute’s enactment. We first look to “whether Congress has expressly prescribed the statute’s proper reach,” Landgraf, supra, at 280, ... and in the absence of language as helpful as that we try to draw a comparably firm conclusion about the temporal reach specifically intended by applying “our normal rules of construction,” Lindh v. Murphy,521 U.S. 320 , 326,117 S.Ct. 2059 ,138 L.Ed.2d 481 ... (1997). If that effort fails, we ask whether applying the statute to the person objecting would have a retroactive consequence in the disfavored sense of “affecting substantive rights, liabilities, or duties [on the basis of] conduct arising before [its] enactment,” Landgraf, supra, at 278, ... see also Lindh, supra, at 326[.]
Id. at 2428 (alterations in original).
In
Garcia-Ramirez v. Gonzales,
[T]he Court articulated a two-step approach for evaluating when the normal presumption against retroactivity should not apply. Our “first task” under Land-graf is to “determine whether Congress has expressly prescribed the statute’s proper reach.” Landgraf,511 U.S. at 280 ,.... If Congress has clearly expressed that a law should be applied to conduct occurring before its enactment, our inquiry ends and we must defer to Congress’ command. Otherwise, we proceed to Landgraf s second step and ask “whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Id. If the new law would have such a retroactive effect, the “traditional presumption teaches that [the new statute] does not govern[.]” Id.
A critical feature of this standard is that we must proceed to the second step of the
Landgraf
approach unless Congress’s intent that the statute be given retroactive application is clear. In other words, ambiguity as to a statute’s retroactive application does not bar its retroactive application unless doing so “would impair rights a party possessed when he acted[.]”
Landgraf,
The BIA has held that § 1229b(d) ends an alien’s continuous physical presence for cancellation of removal eligibility as of the date of his or her commission of an offense, even if the offense was committed prior to the enactment of IIRIRA.
In re Perez,
22 I. & N. Dec. 689, 700 (BIA 1999). Respondent argues that the BIA’s position is entitled to deference pursuant to
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
Moreover, Valencia-Alvarez disagrees with respondent’s interpretation of the statute. He argues that the clock-stopping provision contained no language addressing its retroactive applicability and that the IIRIRA Transitional Rules addressing the retroactive application of notice to appear provision, § 1229b(d)(l)(A), are silent as to the “committed an offense” provision, § 1229b(d)(1)(B). He further argues that the Nicaraguan Adjustment and Central American Relief Act (“NACARA”), Pub.L. 105-100 (1997), amending IIRIRA’s Transitional Rules, is also silent as to the retro-activity of the “committed an offense” provision. 9
Our determination as to Congress’s intent under the first prong of the
Landgraf
test is controlled by our opinion in
Jimenez-Angeles,
which concerned the retroactive application of the notice to appear provision of § 1229b(d)(l)(A). After reviewing the Supreme Court’s approach to IIRIRA in
St. Cyr,
Nonetheless, Valencia-Alvarez’s request for relief fails because he cannot meet the second prong of the Landgraf standard: he cannot show that retroactive application of the “committed an offense” provision to him would impair any of his rights. Two features of Valencia-Alvarez’s position preclude relief. First, unlike the plea at issue in St. Cyr, where the alien arguably bargained for something on the basis of existing immigration law, Valencia-Alvarez cannot assert that he relied on existing immigration law when he decided to commit a crime. Second, following his commission of a crime, Valencia-Alvarez has never been eligible for discretionary relief. We find these features to be determinative and hold that the “stop-clock” provision bars Valencia-Alvarez from being eligible for discretionary relief.
The importance of the first feature is established by our opinion in
Jimenez-Angeles.
There, the alien presented herself to the Service shortly before IIRIRA became effective, hoping that the Service would bring proceedings against her before IIRIRA’s more stringent provisions for discretionary relief took effect.
On review by this court, Jimenez-Ange-les argued that the application of the new provisions to her was impermissibly retroactive. Id. at 598. We held that retroactive application of IIRIRA’s provisions was permissible under the second step of the Landgraf test, explaining:
When St. Cyr entered into his plea bargain, he gave up valuable legal rights, including his right to trial by jury. By contrast, when Jimenez-Angeles revealed herself to the INS, she gave up only her ability to continue living illegally and undetected in the United States.
Id. at 602. This case presents a similar situation because Valencia-Alvarez cannot argue that he gave up any legal right when he decided to commit a crime.
The critical nature of the fact that Valencia-Alvarez has never been eligible for discretionary relief is also indicated in Jimenez-Angeles. After noting that Jimenez-Angeles had not given up any valuable legal right in revealing herself to the INS, we reasoned:
[Ajlthough Jimenez-Angeles may have had an expectation (or at least a hope) that suspension of deportation would be available to her when she turned herself in voluntarily less than one month before IIRIRA’s effective date, that expectation (or hope) was not equivalent to *1328 the settled expectation St. Cyr gained by entering into his plea bargain before that date.
Id. Here, Valencia-Alvarez had only the hope that, had IIRIRA not been enacted, he might remain in the United States long enough to possibly qualify for discretionary relief from deportation.
The importance of the vesting of an alien’s right is also reflected in the Third Circuit’s recent opinion in
Hernandez v. Gonzales,
Hernandez cannot credibly claim a retroactive effect from his guilty plea because immediately after he entered his plea he was ineligible for any kind.of relief-and, in fact, would remain ineligible for any kind of relief for a decade.
Id. at 353. The Third Circuit concluded:
Because Hernandez’s application for adjustment of status amounts to a decision to give up something to which he had no right in the first place — his ability to continue living illegally in the United States — we conclude that Hernandez’s 1999 concession of his alienage does not cause Congress’ repeal of suspension of deportation as applied to him to be im-permissibly retroactive.
Id.
In our case, Valencia-Alvarez was not eligible for discretionary relief from deportation at the time he committed the underlying offense, at the time he was convicted, or when IIRIRA became effective. Because he was admitted to the United States in July 1991, he did not have ten or even seven years of continuous residency in the United States until well after IIRI-RA’s April 1, 1997, effective date. Thus, Valencia-Alvarez had only the hope that if he managed to accrue a sufficient period of continuous residency he would then become eligible for discretionary relief from deportation or removal. The loss of an opportunity to become eligible for discretionary relief does not rise to the level of impairing a right possessed by a party.
11
*1329
Landgraf,
Moreover, our approach is in accord with the Supreme Court’s opinion in
Fernandez-Vargas.
Fernandez-Vargas, a citizen of Mexico, first came to the United States in the 1970s, was deported for immigration violations, reentered in 1982, and remained in the United States thereafter.
St. Cyr’s agreement for a quid pro quo and his plea were entirely past, and there was no question of undoing them, but the “transactio[n] or consideration]” on which § 241(a)(5) turns is different. While the law looks back to a past act in its application to “an alien [who] has reentered ... illegally,” 8 U.S.C. § 1231(a)(5), the provision does not penalize an alien for the reentry (criminal and civil penalties do that); it establishes a process to remove him “under the prior order at any time after the reentry.” Ibid. Thus, it is the conduct of remaining in the country after entry that is the predicate action; the statute applies to stop an indefinitely continuing violation that the alien himself could end at any time by voluntarily leaving the country.
Id. at 2432 (footnote omitted). Similarly, in the case at bar, Valencia-Alvarez has been subject to removal or deportation ever since his conviction.
The fact that Valencia-Alvarez was never eligible for discretionary relief from deportation or removal distinguishes his situation from that presented in
Lopez-Castellanos,
where we held that a provision of IIRIRA which expanded the definition of aggravated felony could not be retroactively applied to a conviction that was not an aggravated felony when entered.
The cases cited by Valencia-Alvarez do not undermine the need for an existing right before the retroactive application of § 1229b(d)(1) is implicated. For example, in
Henry v. Ashcroft,
[u]nder the immigration laws in effect prior to IIRIRA, petitioner did not become statutorily ineligible for INA § 212(c) relief when she entered a guilty plea to petit larceny on October 5, 1987. After petitioner accrued seven continuous years of lawful residence, she had a reasonable expectation that INA § 212(c) relief was available to her. It is an impermissible retroactive application of the clock stopping provision to strip petitioner of that reasonable expectation.
Id. at 696. The district court further noted that “[rjegardless of whether she relied on her eligibility, it is the retroactive denial of an already accrued eligibility for discretionary relief that gives the clock stopping provision its impermissible retroactive effect.” Id. at 696 n. 4.
The same distinction is noted in the case most heavily relied upon by Valencia-Alvarez,
Generi v. Ashcroft,
The issue here is not whether Petitioner considered the possible immigration consequences of his actions prior to committing breaking and entering in 1974. Instead, the Court must consider Petitioner’s settled expectations as they existed immediately prior to the enactment to the IIRIRA and determine whether the passage of the IIRIRA im-permissibly upset those expectations.
*1331 V
Valencia-Alvarez’s arguments in this petition for review, although well presented by counsel, are not persuasive. The Service’s assertion of additional charges following the BIA’s 2002 opinion was not barred by res judicata because that decision was not a final judgment rendered on the merits in a separate action. Valencia-Alvarez’s contention that his continuous residence for purposes of becoming eligible for discretionary relief should not stop with his 1996 criminal offense (as provided by 8 U.S.C. § 1229b(d)(1)(B)) fails because he has not asserted any cognizable right that is compromised by the retroactive application of the statute. Accordingly, the petition for review is DENIED.
Notes
. Pursuant to the Department of Homeland Security Reorganization Plan, as of March 1, 2003, the Service was abolished and its functions were transferred to the Department of Homeland Security. See 6 U.S.C. § 542.
. The BIA noted:
We find no merit to [Valencia-Alvarez's] contention that the [Department of Homeland Security] may not lodge additional charges. Federal regulations provide that additional or substituted charges of remov-ability may be lodged by the [Department of Homeland Security] in writing at any time during the removal proceedings. 8 C.F.R. § 1003.30.
. Section 1229b(a) provides that the Attorney General may cancel removal of an alien who has been lawfully admitted for permanent residence for not less than five years, has resided in the United States continuously for seven years, and has not been convicted of any aggravated felony. Valencia-Alvarez had been lawfully admitted for more than five years and the BIA had determined that his conviction was not for an aggravated felony.
.Section 1229b(d)(l) reads:
For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to (end (A) except in the case of an alien who applies for cancellation of removal under subsection (b)(2) of this section, when the alien is served a notice to appear under section 1229(a) of this title, or (B) when the alien has committed an offense referred to in section 1182(a)(2) of this title *1323 that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title, whichever is earliest.
(Emphasis added).
. On appeal, Valencia-Alvarez does not challenge the factual determination that his underlying conviction involved a controlled substance.
. Res judicata or claim preclusion bars a subsequent action "not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.”
Cromwell v. County of Sac.,
. In light of this conclusion, we need not determine whether the BIA’s 2002 opinion, if final, would have barred the Service from asserting additional issues. We note, however, that we have indicated that in the administrative law context, "the principles of collateral estoppel and res judicata are applied flexibly.”
Artukovic v. INS,
. Pursuant to 8 U.S.C. § 1229b(d)(l) an alien’s accrual of continuous presence ceases when the alien commits an offense "referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title[.]’’ 8 U.S.C. § 1182(a)(2)(A)(i)(II) specifies that an alien is inadmissible if he or she commits a violation "relating to a controlled substance[.]” Valencia-Alvarez does not deny *1325 that his offense is one that is covered by §§ 1182(a)(2) and 1229b(d)(l).
. The provision of the IIRIRA Transitional Rules at issue states: “Paragraphs (1) and (2) of section 240A(d) of the Immigration and Nationality Act [8 U.S.C. § 1229b(d)(l) and (2) ] (relating to continuous residence or physical presence) shall apply to notices to appear issued before, on, or after the date of the enactment of this Act.” Pub L. 104-208 (1996), 1996 H.R. 3610.
Similarly, the relevant provision of NA-CARA states: "Paragraphs (1) and (2) of section 240(d) of the Immigration and Nationality Act shall apply to orders to show cause ... issued before, on, or after the date of enactment of this Act.” NACARA § 203, Pub L. 105-100, 111 Stat. 2160 (1997).
Valencia-Alvarez argues that the provisions’ failure to address the "committed an offense” provision, 8 U.S.C. § 1229b(d)(l)(B), meant that Congress intended that the clause not be retroactive.
. The Supreme Court reached a similar position in
Fernandez-Vargas
concerning a different provision of IIRIRA, when it noted that “IIRIRA sometimes expressly made changes prospective as from the effective date and sometimes expressly provided they were applicable to earlier acts.... With such a variety of treatment, it is just too hard to infer any clear intention at any level of generality from the fact of retiring the old before-or-after language from what is now § 241(a)(5).”
. This conclusion is buttressed by the following commentary by the Supreme Court in Fernandez-Vargas:
We understand Femandez-Vargas's claim as falling within the second of Justice Story’s categories of retroactivity (new consequences of past acts), not the first category of canceling vested rights. The forms of relief identified by Fernandez-Vargas as rendered unavailable to him by § 241(a)(5) *1329 include cancellation of removal, see 8 U.S.C. § 1229b(b), adjustment of status, see § 1255, and voluntary departure, see § 1229c. These putative claims to relief are not "vested rights,” a term that describes something more substantial than inchoate expectations and unrealized opportunities. In contrast to “an immediate fixed right of present or future enjoyment,” Pearsall v. Great Northern R. Co.,161 U.S. 646 , 673, ... (1896) (internal quotation marks omitted), Fernandez-Vargas's claim to such relief was contingent, and it was up to him to take some action that would elevate it above the level of hope. It is not that these forms of relief are discretionary, cf. St. Cyr,533 U.S. at 325 , ...; it is rather that before IIRIRA's effective date Fernandez-Vargas never availed himself of them or took action that enhanced their significance to him in particular, as St. Cyr did in making his quid pro quo agreement^]
. Our determination is not inconsistent with our recent opinion in
Sinotes-Cruz v. Gonzales,
. This conclusion also defeats Valencia-Alvarez’s argument that applying § 1229b(d)(l)(B) to his situation denied him due process under the Fifth Amendment. Although aliens are entitled to due process of law,
Mathews v. Diaz,