United States v. 2010-06-02 | 08-71007 | LEONEL POBLETE MENDOZA V. ERIC H. HOLDER JR. | precedential…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 LEONEL POBLETE MENDOZA,
Petitioner, No. 08-71007
v. Agency No.
 A044-347-805ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 12, 2010—San Francisco, California
Filed June 2, 2010
Before: Procter Hug, Jr. and Jay S. Bybee, Circuit Judges,
and James S. Gwin,* District Judge.
Opinion by Judge Hug
*The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
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COUNSEL
John Martin Pope, Pope & Associates, P.C., Phoenix, Ari-
zona, for the petitioner.
Aric A. Anderson, Trial Attorney, U.S. Department of Justice,
Washington, D.C., for the respondent.
OPINION
HUG, Circuit Judge:
Leonel Poblete Mendoza, a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals’
(“BIA”) decision reversing an order of an Immigration Judge
(“IJ”) and dismissing Poblete Mendoza’s appeal of the IJ’s
subsequent order of removal. For the reasons set forth below,
we deny the petition for review.
I. FACTUAL AND PROCEDURAL BACKGROUND
Poblete Mendoza has been a lawful permanent resident of
the United States since 1993. In 2003, he was convicted of
shoplifting in violation of Arizona law and of possession of
a controlled substance with intent to distribute in violation of
Utah law. After realizing that it had made a clerical error by
convicting Poblete Mendoza of possession with intent to dis-
tribute, the Utah court corrected his conviction to simple pos-
session. In the meantime, however, the DHS had initiated
removal procedures against Poblete Mendoza in 2004 based
on the theory that Poblete Mendoza’s conviction was a crime
relating to a controlled substance and that it was an aggra-
vated felony. Importantly to the issue before us now, the DHS
did not use the shoplifting conviction as the basis for the 2004
immigration proceedings. After Poblete Mendoza submitted
the above-mentioned corrected conviction for simple posses-
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sion, the IJ held that he had not been convicted of an aggra-
vated felony and was thus eligible for cancellation. The DHS
did not appeal that decision.
This did not end Poblete Mendoza’s encounters with the
law. In 2006, he was convicted of solicitation to possess mari-
juana for sale in violation of Arizona law. Accordingly, the
DHS served Poblete Mendoza with a second Notice to
Appear, asserting that he was subject to removal from the
United States for having been convicted of two crimes of
moral turpitude pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii).1 The
two convictions applied were the 2003 shoplifting conviction
and the 2006 conviction for solicitation to possess marijuana
for sale. The IJ found that the doctrine of res judicata barred
the DHS from using Poblete Mendoza’s shoplifting convic-
tion and thus terminated the removal proceedings. The DHS
appealed. The BIA sustained the DHS’ appeal, holding that
res judicata did not apply and that Poblete Mendoza was thus
removable. The BIA remanded to the IJ for further proceed-
ings. Before the IJ, Poblete Mendoza requested that his case
be terminated because his shoplifting conviction had been
vacated in the meantime. The IJ found that the conviction was
vacated for rehabilitative purposes only and thus remained
applicable as one of two crimes of moral turpitude. Accord-
ingly, the IJ ordered Poblete Mendoza removed to Mexico.
He appealed to the BIA, which dismissed the appeal. This
appeal followed.
II. JURISDICTION
We have jurisdiction over a final order of removal under 8
U.S.C. § 1252(a).
1“Any alien who at any time after admission is convicted of two or
more crimes involving moral turpitude, not arising out of a single scheme
of criminal misconduct, regardless of whether confined therefor and
regardless of whether the convictions were in a single trial, is deportable.”
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III. STANDARD OF REVIEW
When, as here, the BIA conducts an independent review of
the IJ’s findings, this court reviews the BIA’s decision and
not that of the IJ. Romero-Ruiz v. Mukasey, 538 F.3d 1057,
1061 (9th Cir. 2008). The BIA’s determination of purely legal
questions is reviewed de novo. De Martinez v. Ashcroft, 374
F.3d 759, 761 (9th Cir. 2004). The BIA’s interpretation and
application of immigration laws are entitled to deference
unless the interpretation is contrary to the plain and sensible
meaning of the law at issue. Almaghzar v. Gonzales, 457 F.3d
915, 920 (9th Cir. 2006).
IV. ANALYSIS
The main issue here is whether res judicata bars the govern-
ment from using Poblete Mendoza’s 2003 shoplifting convic-
tion because it did not bring it up in its first removal
proceedings. Poblete Mendoza also argues that the govern-
ment did not meet its burden of showing that the vacatur of
his shoplifting conviction was for rehabilitative purposes. We
address each argument in turn.
A. Res judicata
According to Poblete Mendoza, the government effectively
waived any subsequent use of his 2003 shoplifting conviction
when it chose not to bring it up in connection with the 2004
removal proceedings. The government counters that when
new removal proceedings are based on a previously existing
conviction and a newly arising one, the combination of con-
victions constitutes one new claim for res judicata purposes
that could not possibly have been litigated at an earlier point
in time and that res judicata thus does not apply. We agree.
[1] Res judicata bars further litigation on a claim where
there is (1) an identity of claims, (2) a final judgment on the
merits, and (3) privity between parties. Tahoe Sierra Pres.
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Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064,
1077 (9th Cir. 2003). The defense of res judicata may be
invoked in immigration proceedings. See Ramon-Sepulveda v.
INS, 824 F.2d 749, 750 (9th Cir. 1987). Poblete Mendoza
relies on Bravo-Pedroza v. Gonzales where we held that
“[r]es judicata bars the government from bringing a second
[removal] case based on evidence . . . that it could have pres-
ented in the first case.” 475 F.3d 1358, 1359 (9th Cir. 2007)
(emphasis added). However, the government did not base its
second deportation proceedings against Bravo-Pedroza on a
new conviction as here. See id. Rather, it merely relabeled
Bravo-Pedroza’s existing convictions “crimes of moral turpi-
tude” after a change of law regarding one of the underlying
crimes while Bravo-Pedroza’s petition for review was pend-
ing and initiated a new deportation case against him. Id. at
1359-60. We concluded that elementary fairness required us
to apply res judicata in those circumstances. Id. at 1360.
In contrast, in Molina-Amezcua v. INS, we considered
whether the former INS could, in part, base a new deporta-
bility determination on a crime that it had used in support of
a previous deportability finding as to which actual deporta-
bility was waived. 6 F.3d 646, 647 (9th Cir. 1993). We con-
cluded that the petitioner was deportable based on the “new
conviction and on a previous one.” Id. (emphasis added). Sim-
ilarly, in Al Mutarreb v. Holder, we stated that “[s]hould the
Service decide to initiate new proceedings against Al Mutar-
reb based on facts that have arisen or come to light after his
original . . . proceeding took place,” it will again bear the bur-
den of proving his removability under 8 U.S.C. § 1229a(c)(3).
561 F.3d 1023, 1031 (9th Cir. 2009) (emphasis added).
[2] Here, the convictions used in connection with the sec-
ond removal proceedings against Poblete Mendoza were dif-
ferent from those used in the first removal proceedings
against him. The government could not possibly have brought
up Poblete Mendoza’s deportability based on the two crimes
of moral turpitude here involved, namely the 2003 shoplifting
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charge and the 2006 drug solicitation conviction, before the
latter came into existence. Res judicata does not prevent the
government from using a previous conviction in connection
with second removal proceedings based on its combination
with a newly arising conviction when the combination of
these convictions constitutes a claim that could not possibly
have been litigated during the first removal proceedings.
B. Vacatur for Rehabilitative Purposes
[3] A conviction vacated for reasons “unrelated to the mer-
its of the underlying criminal proceedings” may be used as a
conviction in removal proceedings whereas a conviction
vacated because of a procedural or substantive defect in the
criminal proceedings may not. Nath v. Gonzales, 467 F.3d
1185, 1189 (9th Cir. 2006). Poblete Mendoza argues that
because the state court order vacating his conviction for shop-
lifting is silent on its face as to the reason for the vacatur and
because the Arizona statute under which his conviction was
vacated does not use the word “rehabilitated,” the government
has not met its burden of proving that his conviction was
vacated for rehabilitative purposes. The government claims
that the record underlying the vacatur order clearly shows that
Poblete Mendoza’s conviction was vacated for rehabilitative
purposes.
[4] Poblete Mendoza filed a motion with the Arizona state
court “to set aside [his] conviction for shoplifting” and for a
restoration of “any and all rights that may be affected by the
conviction.” See Ariz. Rev. Stat. § 13-907. As grounds for his
motion, Poblete Mendoza stated that “[d]efendant success-
fully completed his probation and was discharged therefrom
. . . . No other court sanction or requirement remains to be
completed.” This motion was granted by use of a form order
citing to Poblete Mendoza’s motion to “Vacate/Set Aside
Conviction/Withdraw Guilty Plea.” In Murillo-Espinoza v.
INS, we held that an alien’s prior vacated conviction, which
had been vacated under the precise vacatur statute under
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which Poblete Mendoza’s shoplifting conviction was vacated,
could be used by the government in a subsequent removal
proceeding. See 261 F.3d 771, 773-74 (9th Cir. 2001); see
also Ariz. Rev. Stat. § 13-907 (“[T]he conviction may be used
as a conviction if such conviction would be admissible had it
not been set aside and may be pleaded and provided in any
subsequent prosecution . . . .”). Read alongside Nath, Murillo-
Espinoza stands for the proposition that any vacatur under this
particular statute is a vacatur for rehabilitative purposes and
that therefore, the vacated conviction may be used in subse-
quent removal proceedings. We thus hold that the vacatur of
Poblete Mendoza’s conviction for shoplifting in Arizona was
for rehabilitative purposes and therefore, the government
could use this conviction in his subsequent removal proceed-
ing.
PETITION DENIED.
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