Yuli Marisela Velarde-Flores v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YULI MARISELA VELARDE-FLORES,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 12-71317
Agency No. A089-347-642
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 20, 2015**
San Francisco, California
Before: M. SMITH and N.R. SMITH, Circuit Judges, and SCHEINDLIN,*** Senior
District Judge.
Petitioner Yuli Marisela Velarde-Flores challenges the decision of the
Board of Immigration Appeals (BIA) to affirm an Immigration Judge’s finding of
FILED
NOV 25 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Shira Ann Scheindlin, Senior District Judge for the
U.S. District Court for the Southern District of New York, sitting by designation.

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inadmissability based on Velarde-Flores’ false claim of United States citizenship
under 8 U.S.C. § 1182(a)(6)(C)(ii). Velarde-Flores argues that the doctrines of res
judicata and collateral estoppel bar the government from charging her with a false
claim of citizenship because, at the time of the violation, the government had
permitted Petitioner to withdraw her application for admission and avoid expedited
removal proceedings resulting from her false claim of citizenship. We have
jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition for review.
As the facts and procedural history are familiar to the parties, we do not
recite them here except as necessary to explain our disposition. In this case, the
determinative issue is whether a United States immigration inspector’s decision at
the border to allow Petitioner to voluntarily withdraw her application for admission
and return to her country of citizenship—rather than be placed in expedited
removal proceedings—qualifies as a judicial determination on Velarde-Flores’
false claim of citizenship, thereby triggering the doctrines of res judiciata and
collateral estoppel. In addressing this issue, we review de novo the BIA’s
interpretation of pure legal questions. See Rivera-Peraza v. Holder, 684 F.3d 906,
909 (9th Cir. 2012). We review the BIA’s findings of fact for substantial evidence.
See Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir. 2009).
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As held by the Supreme Court, and adopted by this Circuit in Miller v.
County of Santa Cruz, 39 F.3d 1030 (9th Cir 1994), res judicata only applies when
an agency is “acting in a judicial capacity and resolves disputed issues of fact
properly before it which the parties have had an adequate opportunity to litigate.”
United States v. Utah Constr. and Mining Co., 384 U.S. 394, 422 (1966); see also
Valencia-Alvarez v. Gonzales, 469 F.3d 1319, 1323–24 (9th Cir. 2006). Similar
criteria apply to the doctrine of collateral estoppel, which applies when four criteria
are met: “(1) the issue at stake was identical in both proceedings; (2) the issue was
actually litigated and decided in the prior proceedings; (3) there was a full and fair
opportunity to litigate the issue; and (4) the issue was necessary to decide the
merits.” See Oyeniran v. Holder, 672 F.3d 800, 806 (9th Cir. 2012) (citing
Montana v. United States, 440 U.S. 147, 153–154 (1979)).
Here, the record reveals that there was no judicial determination, no final
judgment on the merits, and no opportunity for adequate litigation. Rather, the
immigration inspector’s exercise of discretion was no more than an act of
administrative grace, enabling Petitioner to depart the United States voluntarily “in
lieu of a formal determination concerning [her] admissibility, ” as indicated on her
I-275 form. Petitioner’s reliance on Bravo-Pedroza v. Gonzales, 475 F.3d 1358
(9th Cir. 2007), is inapposite. There, the petitioner had been placed in prior
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removal proceedings resulting in a “final judgment on the merits.” Id. at 1360. In
contrast, Velarde-Flores has not been the subject of prior removal proceedings.
Because there is no prior judgment upon which res judicata or collateral estoppel
might operate, we hold that these doctrines do not prevent the government from
charging Petitioner with making a false claim of citizenship under 8 U.S.C. §
1182(a)(6)(C)(ii).
PETITION DENIED.
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