Opinion
Civil Action No. 02-2081
August 9, 2002
MEMORANDUM
This habeas corpus action challenges the detention of petitioner, Andrea Patricia Duvall, a lawful permanent resident of the United States, by the Immigration and Naturalization Service. The issue is whether INS is collaterally estopped from relitigating petitioner's alienage and, therefore, must withdraw its removal proceeding and release her. Jurisdiction is 28 U.S.C. § 2241 (1994); Chmakov v. Blackman, 266 F.3d 210, 213 (3d Cir. 2001), citing Zadvydas v. Davis, ___ U.S. ___, 121 S.Ct. 2491, 2497, 150 L.Ed.2d 653 (2001); Liang v. INS, 206 F.3d 308, 317 (3d Cir. 2000).
Exhaustion of administrative remedies is not required here and defendant has not raised it as a defense. McCarthy v. Madigan, 112 S.Ct. 1081, 1086, 503 U.S. 140, 144, 117 L.Ed.2d 291 (1992) (exhaustion is a matter of judicial discretion unless mandated by statute).
1. Factual Background
In 1991, INS approved petitioner's application to become a lawful permanent resident. In 1993, INS commenced proceedings to deport petitioner by citing her criminal record. 8 U.S.C. § 1231 (a)(1)(A) (a)(2)(A)(ii). Petitioner denied the charges, as well as her alleged Jamaican citizenship. At a hearing on November 16, 1993, when called as an INS witness, petitioner invoked the Fifth Amendment and refused to answer questions. The immigration judge rejected the INS offer of petitioner's lawful permanent residence application because it had not been submitted at least 10 days prior to the hearing, as required by local rule. Upon finding the evidence presented of deportability was insufficient, the immigration judge terminated the proceeding. Pet. exh. 4, 11/16/93 TR. at 16. INS filed but later withdrew an appeal to the Board of Immigration Appeals. Pet. mem. at 2.However, on March 12, 2001, while incarcerated at the Montgomery County (Pa.) Correctional Facility following a conviction in 2000 of retail theft, petitioner admitted her Jamaican birth and citizenship in a sworn statement to an INS officer. See resp. mem. at 4, resp. exh. 13.
For stealing a $948 handbag from Neiman-Marcus at the King of Prussia Mall. See resp. mem. at 3.
On March 16, 2001, the INS again instituted removal proceedings charging petitioner under 8 U.S.C. § 1227 (a)(2)(A)(ii) with conviction of two or more "crimes involving moral turpitude" and under 8 U.S.C. § 1227 (a)(2)(A)(iii) with conviction of an "aggravated felony." On June 6, 2001, an immigration judge terminated the removal proceeding, holding that INS was collaterally estopped to assert petitioner's alienage by virtue of the November 1993 dismissal. INS appealed. On December 6, 2001, the Board of Immigration Appeals reversed and remanded and thereafter denied petitioner's motion for reconsideration. This habeas corpus action ensued. Petitioner remains in custody at York County Prison, having not posted $7,500 bond.
The Notice to Appear alleges that, following the 1993 deportation proceeding, petitioner was convicted on August 23, 1995 and October 18, 2000 of retail thefts in violation of 18 Pa. S. § 3929(a)(1), for which she was sentenced to 11 1/2 to 23 and 6 to 23 months, respectively. Pet. exh. 8.
The immigration statute does not define "crime of moral turpitude," which has been held to refer "to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general . . ." Matter of Franklin, 20 I. N. Dec. 867, 868 (BIA 1994) aff'd, 72 F.3d 571 (8th Cir. 1995). Most theft offenses involve moral turpitude. Matter of Alcaron, Int. Dec. # 3184 (BIA 1992) (petty theft under Cal. Penal Code § 484); Matter of R, 6 I. N. Dec. Dec. 19 (BIA 1955) (receiving stolen property under N.J. Rev. Stat. § 2:164-1).
Defined in 8 U.S.C. § 1101 (a)(43)(g) as a theft offense for which a term of imprisonment of one year or more is imposed. Conviction of an aggravated felony renders an alien ineligible for most forms of relief from removal. See e.g., 8 U.S.C. § 1229b (a)(3).
In December 2001 petitioner had been released when the proceeding was terminated. Def. mem. at 5.
2. Collateral Estoppel
In a non-immigration action, Raytech Corp. v. White, 54 F.3d 187, 190 (3d Cir. 1995), our Court of Appeals delineated the doctrine of collateral estoppel as follows: (1) the issue in the second case is identical to that in the first; (2) the issue was actually litigated and (3) was necessary to the original decision; and (4) the precluded party was represented by counsel in the earlier action. Accord: Restatement of the Law of Judgments, Second § 27 (1982).The Board of Immigration Appeals has "historically followed a court's precedent in cases arising in that circuit." Matter of Anselmo, 20 I N Dec. 25, 31 (1989). However, our Court of Appeals has not ruled on collateral estoppel in an immigration action. In its decision in this case, the BIA found: "[I]n the absence of controlling precedent from the United States Court of Appeals for the Third Circuit on this issue, we shall apply Matter of Fedorenko," 19 I N Dec. 57 (BIA 1984), which holds: "In order for collateral estoppel to be invoked . . ., there must have been a prior judgment between the parties that is sufficiently firm to be accorded conclusive effect and the parties must have had a full and fair opportunity to litigate the issues in the prior suit. [citations omitted]. In addition, the use of collateral estoppel must not be unfair to the parties." Matter of Fedorenko, at 61. The principal difference between the Raytech and Matter of Fedorenko standards is that Raytech does not explicitly articulate a "fairness" element for the use of collateral estoppel by a defendant. Raytech, 54 F.3d at 190 ("the Supreme Court has instructed that courts must take special care to ensure that its application does not work unfairness to [the] party against whom [offensive] estoppel is asserted."). Here, petitioner is attempting to use collateral estoppel defensively.
Moreover, it has been noted that:
most of the cases that speak of limiting issue preclusion by principles of justice or the public interest involve concerns that often can be accommodated under other limitations. Thus such cases may involve changes in the legal climate, concern with the impact of the decision on nonparties or the public interest, changes in the context in which the issue arises, lack of a full and fair opportunity to litigate. . . .
18 Wright, Miller Cooper, Federal Practice and Procedure:
Jurisdiction 2d § 4426, at 687 (2002). So viewed, the seeming difference between these two standards does not necessarily lead to a different outcome. The decisions in Matter of Fedorenko , which arose in the Second Circuit, and in the underlying BIA decision do not explain why the Raytech — Restatement view is inappropriate in the context of an immigration case and should be distinguished on that basis. Arguably, there is a national interest in removability and enforcement of the immigration law that should entitle INS to a less than rigid application of preclusion law. However, this is not an equitable consideration; it is a matter for Congress and not the courts.
Here, the basic requisites of collateral estoppel are present.
Petitioner's alien status was an essential issue in both proceedings. At the original deportation hearing, INS had the burden of establishing petitioner's deportability by "clear, unequivocal, and convincing evidence," as set forth in Woodby v. INS, 385 U.S. 276, 286, 87 S.Ct. 483, 488, 17 L.Ed.2d 362 (1966). Thirty years later, that decisional law was codified in § 304 of the Immigration Reform and Immigration Responsibility Act (IIRIRA) by adding 8 U.S.C. § 1229a(c)(3)(A) (1996) — which provides that removability must be proven by "clear and convincing" evidence, albeit omitting the term "equivocal." 8 U.S.C. § 1229a(c)(3)(A). Petitioner suggests that this omission did not affect alienage but only removability. However, these issues, of alienage and deportability or removability, have frequently been conflated in the past.
IIRIRA consolidated "deportation" and "exclusion" into "removal" proceedings: 8 U.S.C. § 1229a(1996).
Petitioner agrees that the current burden for establishing removability has changed but disputes that the standard for proving alienage has also changed. However, there does not appear to have been a separate standard for proving alienage, inasmuch as it is a jurisdictional prerequisite to proving removability/deportability.
"Evidence of foreign birth gives rise to a presumption that the person so born is an alien," and once the government submits such evidence, the burden of proof shifts to the alien to "demonstrate the time, place, and manner of [his or her] entry into the United States. . . . However, the government must first present "clear, convincing, and unequivocal" evidence of foreign birth." (Citations omitted).Ramon-Sepulveda v. I.N.S., 743 F.2d 1307, 1308 (9th Cir. 1984); see also Sint v. Immigration and Naturalization Service, 500 F.2d 120, 123 (1st Cir. 1974).
According to INS, collateral estoppel is insupportable here, given the enactment of § 1229, because of the elimination of "unequivocal." Resp. mem. at 13-14. This posits that § 1229 represents a material lessening of the INS's evidentiary burden as to alienage. The legislative history does not illuminate the purpose of this statutory deletion. However, over time, a variety of phrases have been used to delineate a civil standard higher than "a preponderance of the evidence," although none of them with mathematical certainty or precision.
"Courts have readily perceived that for purposes of preclusion, `[i]ssues are not identical if the second action involves application of a different legal standard, even though the factual setting of both suits be the same.'" 18 Wright and Moore, Federal Practice and Procedure § 4417 at 449 (2d ed. 2001).
The formula varies from state to state, but among the phrases used are the following: "by clear and convincing evidence," "clear, convincing and satisfactory," "clear, cogent and convincing," and "clear, unequivocal, satisfactory and convincing." Some courts have used all of these phrases and then some to describe the applicable standard. The phrasing within most jurisdictions has not become as standardized as the "preponderance" formula, but even here the courts sometimes are surprisingly intolerant of slight variations from the approved expression. 2 McCormick on Evidence § 340, at 424 (John W. Strong, ed., 5th ed. 1999). Given these shades of expression on the same theme and to the same effect, the codified elision of "unequivocal"produces at most a factititious or trivial distinction and does not reflect a material change in the law. "Clear and convincing" appears to be more of a contemporary simplification than anything else.
"Clear" and "unequivocal" are often considered to be synonymous.See Robert L. Chapman, Roget's International Thesaurus, 521.11 (5th ed. 1992). It should be noted, however, that other provisions in the immigration statute include "unequivocal" in the recitation of INS's evidentiary burden. See 8 U.S.C. § 1229a (b)(5)(A) (burden on INS before entry of in absentia removal order). This could give rise to the inference that the omission as to removability was deliberate, but if so, the question remains whether "unequivocal" adds any import to the standard.
INS also disputes that the issue of alienage was "actually litigated" in the original proceeding since the immigration judge had refused to receive evidence of petitioner's Jamaican nationality — i.e. the offer of petitioner's lawful permanent residence application. Def. mem. at 12. For that reason, INS maintains, there was no adjudication or determination of petitioner's nationality. But: "If an issue is raised and the party who has the burden fails in his proof and the issue is decided against him, he is just as much bound by collateral estoppel as though he had presented a barrel of testimony." U.S. v. Silliman, 167 F.2d 607, 617 (3d Cir. 1948); 18 Wright and Miller, Federal Practice and Procedure § 4419, at 498 (2d ed. 2002) ("It is clear enough that issue preclusion generally is appropriate if some effort is made to litigate the issue, but the evidence introduced is held insufficient to carry the burden of persuasion or even the burden of production."); In Re Docteroff, 133 F.3d 210, 215 (3d Cir. 1997) (collateral estoppel proper where a default judgment had been entered against a plaintiff who "had every opportunity to fully and fairly litigate any relevant issue," but who "simply elected not to comply with court orders.").
INS opposes collateral estoppel on an additional ground — the occurrence of subsequent facts essential to the earlier issue. Montana v. United States, 440 U.S. 147, 162, 99 S.Ct. 970, 977, 59 L.Ed.2d 210 (1979) (where factual or legal context has changed, normal preclusion rules may not apply). It points out that petitioner has now admitted her foreign citizenship and has also been convicted of more crimes. A somewhat similar case decided by the Court of Appeals for the Ninth Circuit is to the contrary: Ramon-Sepulveda v. Immigration and Naturalization Service, 824 F.2d 749, 750 (9th Cir. 1987). After the alien there stood on the Fifth Amendment and INS was unable to prove alienage, INS located his birth certificate and moved to reopen the proceedings because of "newly discovered evidence." When the Ninth Circuit reversed the BIA's affirmance of the grant of the motion, INS instituted a second deportation proceeding — which the Court of Appeals terminated on a writ of mandamus, by reason of collateral estoppel.
Here, without foreclosing INS the opportunity to move to reopen, but in light of the authority and reasoning of Ramon-Sepulveda (1987), preclusive effect must be given to the immigration judge's alienage ruling in 1993, collaterally estopping INS from relitigating the issue at this juncture. Similar to the analysis on a motion to reopen for newly discovered evidence, the threshold question is whether these developments are "subsequent."
Petitioner's Jamaican nationality was known and provable at the time of the first hearing, and the two later thefts are cumulative and do not bear on alienage.
The 1996 immigration statute seems to have made these theft offenses "aggravated felonies," in which event the perpetrator is mandatorily removable. See note 8, supra. This change in the law may be the strongest consideration for not applying collateral estoppel to respondent in this case. However, petitioner's criminal record at the time of the first proceeding, in 1993, was more than enough to warrant deportation, and the new removability provision for certain crimes did not affect the issue of alienage — i.e., the specific subject matter of the estoppel.
The habeas petition will be granted and an order entered directing petitioner's release.
ORDER
AND NOW, this 8th day of August, 2002, in accordance with the accompanying memorandum, the petition for a writ of habeas corpus is granted, as follows:
1. The Immigration and Naturalization Service is barred by collateral estoppel from relitigating the issue of the alienage of petitioner Andrea Patricia Duvall.
2. Petitioner shall be released from custody by INS forthwith.