In the words of the immortal Yogi Berra, it’s déjà vu all over again. Believe it or not, we are dealing with a case involving res judicata (aka claim preclusion) in immigration court. As an immigration practitioner, one of the hardest concepts for me to wrap my head around is res judicata. I assume it’s because I don’t have to deal with it on a daily basis. Res judicata literally translates to “a matter judged.” Res judicata or claim preclusion is the principle that a cause of action may not be relitigated once it has been judged on ita merits. (Thank you, Cornell Law School, Legal Information Institute, for that explanation). The question, in this case, is whether res judicata applies in immigration proceedings? Spoiler alert, the Board of Immigration Appeals (BIA) held that it does.
Facts of the Case
Bernardita Voss is a native and citizen of Costa Rica. In 1988 Ms. Voss adjusted status. On November 6, 2013, she was convicted of several controlled substances offenses. DHS placed her in removal proceedings and charged her with being inadmissible under INA § 212(a)(2)(A)(i)(II) (a conviction for a controlled substance offense). (I assume she must have left the United States, been placed in removal proceedings on her return, and charged as an arriving alien). In December 2014, an Immigration Judge granted Ms. Voss cancellation of removal under INA § 240A(a) – so far so good.
In 2019, Ms. Voss was convicted of bank fraud and “exploitation of the infirm.” DHS placed her in removal proceedings for a second time, and this time around charged her with the grounds of deportability rather than the grounds of inadmissibility. More specifically, they charged her with crimes involving moral turpitude (presumably for the fraud and exploitation of the infirm); an aggravated felony drug trafficking offense; and a regular old controlled substance offense (these last two charges likely related to the 2013 convictions but, the record is not clear). In 2019, the Immigration Judge (IJ) found that Ms. Voss was removable on the sole charge of INA § 237(a)(2)(B)(i) (conviction for a controlled substance offense) for the 2013 controlled substance conviction and the IJ dismissed all of the other charges. Now, remember that way back in… (checks notes, ah yes!)… 2014, the Immigration Judge had granted Ms. Voss cancellation of removal under INA § 240A(a) for this very conviction. DHS argued that this time she wasn’t being charged with the grounds of inadmissibility, but rather the grounds of deportability – so it was a different case.
Legal Analysis
The BIA framed the issue as “what effect, if any, [does] a grant of cancellation of removal under section 240A(a) of the Act ha[ve] on the future immigration consequences of the [noncitizen’s] conviction.” Matter of Voss, 28 I&N Dec. 107, 108 (BIA 2020). To answer this question, the BIA first gives us a lesson in the history of 212(c) relief. Section 212(c) provided that a noncitizen who had been living in the United States in permanent resident status for seven years could apply for a waiver of removability. In 2011, the Supreme Court clarified that 212(c) relief applies equally to the grounds of inadmissibility and the grounds of deportability. Judulang v. Holder, 563 U.S. 935 (2011). I find it remarkable that more than twenty years after the enactment of IIRIRA the BIA is still analogizing to 212(c) relief instead of to older cancellation of removal cases, but I digress.
The BIA noted that at the dawn of immigration law history, this Board “rejected an Immigration Judge’s determination that an otherwise deserving [noncitizen] could not be granted a waiver of inadmissibility for a drug conviction because he would remain amenable to deportation on a comparable ground of deportability. Matter of G-A-, 7 I&N Dec. 274, 275 (BIA 1956) relying on Matter of L-, 1 I&N Dec. 1, 6 (AG 1940). (I wasn’t kidding when I said, the dawn of immigration law history. I think it’s the first time that I’ve seen a cite to volume 1 page 1 of the Immigration and Nationality Decisions. I mean I knew that case had to exist, so I am very happy to have found out what it is. And weirdly, the legal reasoning in Matter of L- is quite similar to the reasoning in Judulang. So not only are we experiencing déjà vu all over again, but everything old is new again).
The BIA had held that 212(c) relief remains valid indefinitely unless new circumstances or previously undisclosed facts come to light which give rise to a new basis of removal. Matter of Balderas, 20 I&N Dec. 389, 393 (BIA 1991). The BIA applied this reasoning to this cancellation case. “Given these considerations, we hold that if a criminal conviction was charged as a ground of removability or was known to the Immigration Judge at the time cancellation of removal was granted under section 240A(a) of the Immigration and Nationality Act. . . that conviction cannot serve as the sole factual predicate for a charge of removability in subsequent removal proceedings.” Matter of Voss, 28 I&N Dec. at 111 (emphasis added). To hold otherwise would render cancellation of removal nugatory. Id. And those previous sentences are the key to this case.
But, before everyone starts dancing in the streets, please be aware that the BIA cautioned that even if the Immigration Court granted cancellation of removal for a controlled substance offense, that conviction remains on the record for purposes of inadmissibility under INA § 212(a)(2)(A)(i)(II) if there is a future application for adjustment of status. Matter of Voss, 28 I&N Dec. at 110-111. I’m not sure how that would work…. Perhaps if a noncitizen is granted cancellation of removal under INA § 240A(a) (remember a noncitizen can only get 240A(a) once) and then is later convicted of another crime and seeks to adjust through a relative and get a 212(h) waiver for the crime, then perhaps they are precluded from adjusting because of the controlled substance offense. This scenario is the only one I could think of though there might be others. With that caveat, we have what amounts to a huge victory for immigrants from the 2020 BIA!