Opinion
Civil Action 04-3483.
September 22, 2004
MEMORANDUM
I. Introduction
Presently before the Court is Andrea Patricia Duvall's ("Petitioner") Petition for Habeas Corpus, challenging the lawfulness of her detention by the Department of Homeland Security ("DHS"). The facts of this case are set forth in detail in a previous Memorandum and Order entered by Judge Ludwig,Duvall v. Elwood, No. 02-2081, 2002 U.S. Dist. LEXIS 15090 (E.D. Pa. Aug. 9, 2002) and in an opinion by the Third Circuit, which overturned Judge Ludwig's Memorandum and Order on the basis that Petitioner had not exhausted her administrative remedies, thereby depriving the Court of subject matter jurisdiction.Duvall v. Elwood, 336 F.3d 228 (3d. Cir. 2003).
The Court incorporates the facts set forth in those decisions. Stated briefly, Petitioner was previously subject to a deportation proceeding, but the Immigration Judge invoked a procedural rule and refused to receive evidence showing that Petitioner was born in Jamaica. As a result, the Immigration Judge terminated the deportation proceeding, finding that the government failed to meet its burden of proof in proving Petitioner's alienage. In 2001 DHS instituted new removal proceedings. The present issue is whether DHS is collaterally estopped from relitigating the issue of her alienage and, therefore, must withdraw its removal proceeding and release her.
The Court held argument on August 23, 2004, and counsel agree that there are no factual issues in dispute and that the petition may be decided based on the parties' filings with the Court. The Court has stayed the date of Petitioner's scheduled deportation.
II. Jurisdiction Scope of Review
The Court has jurisdiction over this case under 8 U.S.C. § 1252. See also INS v. St. Cyr, 533 U.S. 289, 310-311 (2001) (holding that the jurisdiction stripping provisions of 8 U.S.C. § 1252 do not bar habeas corpus review of deportation proceedings because such a construction would "invoke the outer limits of Congress' power," and thus "would raise serious constitutional problems."); Duvall, 336 F.3d at 231 n. 5 (discussing St. Cyr).
Petitioner has now exhausted her administrative remedies as required by 8 U.S.C. § 1252(d)(1), and by the Third Circuit inDuvall, supra. DHS does not dispute this.
Following the decision of the Third Circuit, Judge Ludwig entered an Order, dated October 7, 2003, dismissing Petitioner's claim for lack of subject matter jurisdiction. Petitioner then:
(1) Reappeared before the immigration judge, who, in accord with the ruling of the Board of Immigration Appeals, issued an Oral Order on February 19, 2004, ordering Petitioner's removal from the United States;
(2) Petitioner appealed this decision to the Board of Immigration Appeals; and
(3) That appeal was denied on June 18, 2004.
Thus, Petitioner's Petition for Habeas Corpus, filed July 23, 2004, is properly before the Court. Duvall, 336 F.3d at 233.
However, before reaching the merits of Petitioner's claim, the Court must address a jurisdictional issue raised by the government — whether or not the issue of collateral estoppel can be considered on a Petition for Habeas Corpus. In arguing that it cannot, the government correctly cites Bakhtriger v. Elwood, 360 F.3d 414 (3d Cir. 2004) for the proposition that the scope of review for habeas corpus jurisdiction, in immigration cases involving criminal aliens such as Petitioner, is limited to constitutional claims or errors of law, but does not "embrace [the] review of the exercise of discretion, or the sufficiency of the evidence." Id. at 420.
DHS further contends that because the standard of review for collateral estoppel is abuse of discretion, Raytech Corp. v. White, 54 F.3d 187, 190 (3d Cir., 1995) ("We review for abuse of discretion whether the district court properly applied the doctrine of collateral estoppel."), collateral estoppel must be outside the scope of habeas review because it involves the exercise of discretion. This argument does not consider the full extent of Third Circuit law concerning collateral estoppel. Other Third Circuit cases have applied the standard of plenary review to the issue of collateral estoppel, and the Third Circuit has recognized that its approach to reviewing collateral estoppel has been mixed, Witkowski v. Welch, 173 F.3d 192, 198 n. 7 (3d Cir. 1999), but it has declined to rule on which standard of review applies.
In Witkowski, supra, the Third Circuit declined to resolve the issue of which standard of review to apply, noting that the result of the case would be the same under either an abuse of discretion or plenary standard of review.
In this case, because the Court's subject matter jurisdiction is at issue, the applicable standard of review must be defined. To this end, the Court notes that the Third Circuit, inWitkowski, cited cases that applied either the abuse of discretion or plenary standard of review to the issue of collateral estoppel. In examining only the cases from the Third Circuit, a pattern appears. Where the Third Circuit has reviewed the application of offensive collateral estoppel, it has applied the abuse of discretion standard. Raytech Corp. v. White, 54 F.3d 187, 190 (3d Cir. 1995); McLendon v. Continental Can Co., 908 F.2d 1171 (3d Cir. 1990). However, where the Third Circuit has reviewed defensive collateral estoppel, it has employed plenary review. Dici v. Pennsylvania, 91 F.3d 542 (3d Cir. 1996); Arab African Int'l Bank v. Epstein, 958 F.2d 532 (3d Cir. 1992).
This is consistent with the Supreme Court's opinion inParklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), which dealt with the issue of whether offensive collateral estoppel could be applied at all. In holding that it could, the Supreme Court noted that there existed several arguments against allowing the use of offensive collateral estoppel, but that these arguments should not preclude its use. Rather the Supreme Court held that trial courts could exercise "broad discretion" when determining whether to apply offensive collateral estoppel.Id. at 331.
Although not at issue in this case, the factors counseling against the application of offensive collateral estoppel include: (1) that offensive collateral estoppel does not promote judicial economy in the same manner as defensive collateral estoppel and (2) offensive collateral estoppel may be unfair to the defendant if the first defendant is sued for small or nominal damages and has little incentive to present a vigorous defense. Parklane, 439 U.S. at 329-331.
Because the present case involves the application ofdefensive collateral estoppel, the Court concludes that the issue of collateral estoppel is a purely legal issue, the standard of review is plenary and consistent with Bakhtriger, the Court possesses subject matter jurisdiction over Petitioner's Petition for Habeas Corpus. Additionally, the Court notes that several other circuits have reviewed the application of collateral estoppel in deportation cases and none found that they lacked the jurisdiction to do so. Medina v. INS, 993 F.2d 499, 503 (5th Cir. 1993); Kairys v. INS, 981 F.2d 937, 939 (7th Cir. 1992); Ramon-Sepulveda v. INS, 824 F.2d 749, 750 (9th Cir. 1987).
The Supreme Court has also explicitly held that collateral estoppel applies at the administrative level where there are successive administrative adjudications. United States v. Utah Construction Mining Co., 384 U.S. 394, 421-422 (1966). This case and the circuit court cases cited above directly contradict the government's argument that collateral estoppel cannot be applied to removal proceedings.
The government maintains that applying collateral estoppel to the second removal proceeding judicially divests the Executive of its authority to naturalize citizens under 8 U.S.C. § 1421(a). However, a similar argument was directly addressed and rejected by the Fifth Circuit in Medina v. INS, supra. In Medina, petitioner was subject to two deportation proceedings. At the first, the INS conceded, perhaps incorrectly, petitioner's citizenship. Medina, 993 F.2d at 501. Later, the INS instituted a second proceeding ordering petitioner to show cause why he should not be deported. Id. The petitioner argued that the application of res judicata would preclude the Attorney General from instituting deportation proceedings. Id. at 502. In siding with petitioner, the Fifth Circuit held that petitioner "ceased to be an alien once the [immigration judge] ordered him admitted to the United States as a citizen." Id. Thus, the Fifth Circuit declined to permit a legal paradigm to persist where "the INS could revisit a valid, unchallenged adjudication of citizenship through subsequent deportation proceedings initiated years or even decades later." Id. The Court said that its holding would apply if issue preclusion or collateral estoppel were being applied. Id. at 503 n. 15.
III. Discussion
Collateral estoppel, or issue preclusion, as it is often referred to, applies where:
(1) The issue sought to be precluded must be the same as the one involved in the prior action;
(2) The issue must have been actually litigated;
(3) The issue must have been determined by a valid and final judgment; and
(4) The determination must have been essential to the prior judgment.In re Docteroff, 133 F.3d 210, 214 (3d Cir. 1997); See also Raytech Corp. v. White, 54 F.3d 187, 190 (3d Cir. 1995) ("(1) the identical issue was previously adjudicated; (2) the issue was actually litigated; (3) the previous determination was necessary to the decision; and (4) the party being precluded from relitigating the issue was fully represented in the prior action.").
The Board of Immigration Appeals did not apply this standard. Instead, on a Motion for Reconsideration, the Board of Immigration Appeals explained that the Third Circuit has not yet set forth the standard for collateral estoppel in immigration cases and, therefore, chose to apply its own standard for collateral estoppel as set forth in Matter of Fedorenko, 19 I. N. Dec. 57 (BIA 1984). (Petitioner's Ex. 9 at 3.) This standard requires that:
Historically, the Board of Immigration Appeals follows "a court's precedent in cases arising in that circuit." Duvall, 2002 U.S. Dist. LEXIS at *5 (quoting Matter of Anselmo, 20 I. N. Dec. 25, 31 (1989)).
In order for collateral estoppel to be invoked in a given case, 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. In addition, the use of collateral estoppel must not be unfair to the parties.Matter of Fedorenko, 19 I. N. 57, 61 (internal citations omitted); (Petitioner's Ex. 8 at 2.)
As noted by Judge Ludwig, the primary difference between the standard set forth by Matter of Fedorenko and the standard adopted by the Third Circuit is that the Third Circuit does not explicitly set forth a "fairness" element. Duvall v. Elwood, 2002 U.S. Dist. LEXIS 15090, at *6. Still, Judge Ludwig found the two standards to be substantially similar, noting that a primary concern expressed by the Third Circuit in Raytech is that the use of collateral estoppel not be unfair to the party against whom it is asserted. Id. at *7. However, as noted above,Raytech dealt with the issue of offensive collateral estoppel, which raises considerations not present in the application of defensive collateral estoppel. Thus, it is unclear to what extent the two standards really are similar.
Nonetheless, as Judge Ludwig noted, because Matter of Fedorenko is a decision of the Board of Immigration Appeals and arose in the Second Circuit, it does not control this Court if Third Circuit precedent regarding collateral estoppel is different. Duvall at *5.
Although the Board of Immigration Appeals must ordinarily be accorded great deference when interpreting statutes it administers, such as the Immigration and Nationality Act, INS v. Aguirre-Aguirre, 526 U.S. 415, (1999) (holding that the Ninth Circuit should have deferred to the INS' interpretation of what constitutes a serious nonpolitical crime under 8 U.S.C. § 1253(h)(2)(C)), no such deference exists where the agency interprets law outside of its specific field of expertise.Drakes v. Zimski, 240 F.3d 246, 250 (3d Cir. 2001) ("deference is not required where the interpretation of a particular statute does not `implicate agency expertise in a meaningful way' but presents instead `a pure question of statutory construction for the courts to decide.'") (quoting Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999)).
Here, the issue of collateral estoppel does not implicate the expertise of the Department of Homeland Security. It requires an interpretation of federal common law. United States v. Utah Constr. Mining Co., 384 U.S. at 422 (defining collateral estoppel as federal common law). Thus, the Court owes the Board of Immigration Appeals no deference in its choice of law as to collateral estoppel, but must follow Third Circuit law, and holds that the correct standard is the standard set forth by the Third Circuit in In re Docteroff.
The Board of Immigration Appeals has not enunciated a sufficient justification for not applying Third Circuit precedent regarding collateral estoppel. Precedent can be applied across a broad range of legal issues, including immigration law. As such, the Board of Immigration Appeals' argument that Third Circuit precedent does not apply because it has not interpreted collateral estoppel within the narrow field of immigration law is unpersuasive, especially considering the numerous legal fields in which the Third Circuit has applied collateral estoppel.
See Hitchens v. County of Montgomery, No. 03-1851, 2004 U.S. App. LEXIS 8231 (3d Cir. April 26, 2004) (considering the applicability of collateral estoppel to a decision of the Pennsylvania Labor Relations Board); Veterinary Surgical Consultants, P.C. v. Comm'r of Internal Revenue, No. 03-2733, 2004 U.S. App. LEXIS 4566 (3d Cir. March 10, 2004) (applying collateral estoppel to a federal income tax case); Chisholm v. Def. Logistics Agency, 656 F.2d 42, 46 (3d Cir. 1981) (holding, with respect to the Merit Systems Protection Board, that "the same policy reasons which underlie use of collateral estoppel in judicial proceedings are equally applicable when the administrative board acts as an adjudicatory body.").
Thus, applying Third Circuit precedent, Petitioner contends that collateral estoppel applies in the present case because: (1) both the first and second removal proceedings address the same issue — her alienage, (2) even though INS suffered a procedural default in the first proceeding, because it had the opportunity to litigate, the issue of her alienage was actually litigated in the first removal proceeding, (3) the first removal proceeding resulted in a valid and final judgment and (4) the determination of Petitioner's alienage, in the first removal proceeding, was essential to the determination that Petitioner was not deportable.
In deciding the merits of Petitioner's claims, the Court must examine the validity of the reasons given by the Board of Immigrations Appeals for not applying collateral estoppel in Petitioner's second removal proceeding:
(1) The first removal proceeding was subject to a procedural limitation to full presentation of the issues;
(2) There had been a change in the government's applicable burden of proof; and
(3) Petitioner suffered no unfairness from the relitigation of her alienage.
The government also argues that Restatement (Second) of Judgments § 28(5) applies to provide an exception to the general rule of collateral estoppel. Section 28(5) states that collateral estoppel should not be applied where:
There is a clear and convincing need for a new determination of the issue (a) because of the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial action, (b) because it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action, or (c) because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.
The Court disagrees that this provision is applicable, and further finds that none of the other provisions of § 28 are applicable.
A. Procedural Limitation Prevented Merits Consideration of Issues
The Court is aware of no precedent and the government has cited no precedent in support of the Board of Immigration Appeal's conclusion that a procedural limitation to full presentation of the issues can bar the application of collateral estoppel. The general rule, advanced by Petitioner, is that "[i]f 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." United States v. Silliman, 167 F.2d 607, 617 (3d Cir., 1948). "[I]f a question of fact is put in issue by the pleadings, and at the trial the party who has the burden of proof offers no evidence in support of his allegations, and the court directs a verdict against him, the question is litigated and a judgment on the verdict is conclusive between the parties as to the question." Id. at 617 n. 37 (citing Restatement of Judgments § 68 (1942), Comment f).
The Restatement (Second) of Judgments, adopted by the Third Circuit, In re Docteroff, 133 F.3d at 214, contains a similar comment. "[I]f the party against whom preclusion is sought did in fact litigate an issue of ultimate fact and suffered an adverse determination, new evidentiary facts may not be brought forward to obtain a different determination of that ultimate fact." Restatement (Second) of Judgments § 27, Comment c (1982).
Here, Petitioner's alienage constitutes the question of fact put in issue. To prove this issue, the government, at the first removal proceeding, attempted to introduce into evidence Petitioner's application for lawful permanent residence, wherein she admitted her alienage. Duvall, 336 F.3d at 229. However, the immigration judge barred the government from introducing this evidence because the government failed to submit it at least ten days prior to the hearing in accordance with rules of the Immigration Court.
Pursuant to Silliman, the government's inability to get Petitioner's application for lawful permanent residence into evidence does not affect the validity, finality or preclusive effect of the immigration judge's decision regarding the question of Petitioner's alienage. Still, the Court recognizes that, in this case, application of collateral estoppel is harsh, as Petitioner, a convicted thief many times over, is receiving the benefit of a highly technical procedural default.
B. Burden of Proof
Judge Ludwig's previous Memorandum ably addresses the issue of burden of proof in this case. At Petitioner's first removal proceeding, the government bore the burden of establishing Petitioner's deportability by "clear, unequivocable and convincing evidence." Woodby v. INS, 385 U.S. 276, 286 (1966);Duvall, 2002 U.S. Dist. LEXIS at *8. By the time of Petitioner's second removal proceeding the standard had been statutorily changed to "clear and convincing evidence." 8 U.S.C. § 1229a(c)(3)(A); Duvall, 2002 U.S. Dist. LEXIS at *8.
Petitioner's first claim is that although the standard of proof has been statutorily altered, it affects only the government's burden of proof regarding her deportability, not her alienage. This argument is unpersuasive. First, as discussed by Judge Ludwig, there does not appear to have been a standard for proving alienage — only removability/deportability. Duvall, 2002 U.S. Dist. LEXIS at *8 n. 11. The Supreme Court, in Woodby, applied the "clear, unequivocable and convincing" burden of proof to "deportability," not to alienage.Woodby, 385 U.S. at 286. Additionally, it appears that the issues of alienage and deportability have been frequently conflated, Duvall, 2002 U.S. Dist. LEXIS at *8, which seems logical, as a person may not be deported if he or she is not an alien.
As explained by Judge Ludwig, "`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 unequivocable evidence of foreign birth'" Duvall, 2002 U.S. Dist. LEXIS at *8 n. 12 (quoting Ramon-Sepulveda v. INS, 743 F.2d 1307, 1308 (9th Cir. 1984)).
The first removal proceeding against Petitioner was terminated because the government could not meet its burden in proving Petitioner's alienage. (Pl's Ex. 7 at 1.)
Petitioner's second and prevailing argument is that the burdens of "clear, unequivocable and convincing" and "clear and convincing" are not different burdens of proof at all. Judge Ludwig's Memorandum provides substantial support for this point.Id. at *9-12. Additionally, the Supreme Court has held that the intermediate clear and convincing standard "usually employs some combination of the words clear, cogent, unequivocal and convincing." Addington v. Texas, 441 U.S. 418 (1979) (internal quotations omitted). Thus, it is clear that the government faced the same burden of proof at both removal proceedings.
C. Fairness
The Court having found that the Board of Immigration Appeals erred on the issues of procedural limitation and burden of proof, now must consider whether or not it also erred with respect to the issue of fairness. Judge Ludwig did not reach this issue. The undersigned has noted the harsh result reached by the Immigration Judge in the first proceeding based on a procedural technicality. In this sense, the result in that case and this case is not "fair" to the government because the procedural error by the government has resulted in Petitioner evading the clear intent of Congress that an individual with her criminal record should be deported. The fact that Petitioner has committed new crimes while retaining the legal benefit of the government's procedural default is also not "fair." In the interest of equity, Petitioner should not be able to benefit from collateral estoppel when she has committed new crimes.
However, this Court declines to defer to the legal standard adopted by the Board of Immigration Appeals regarding collateral estoppel, finding that the standard set forth by the Third Circuit in In re Doctoroff, which does not include "fairness" as a consideration that must be applied in considering collateral estoppel, controls. Thus, the Board of Immigration Appeals' findings — that Petitioner suffered no unfairness because: (1) many years elapsed between her two removal hearings, (2) Petitioner had been convicted of additional crimes during that time period, and (3) Petitioner had now given a sworn statement regarding her alienage that was not available in the first removal proceeding (Petitioner's Ex. 8 at 3) — are supported by the record but are irrelevant to the issue of collateral estoppel, as the Court applies Third Circuit law. The undersigned has noted his conclusion on the "fairness" issue in the event this case is again appealed and the Third Circuit elects to apply the BIA's test for collateral estoppel set forth in Matter of Fedorenko.
The only factor that can possibly justify relitigating the issue of Petitioner's alienage is the fact that she has now provided the government with a sworn statement regarding her alienage, admitting that she was born in Jamaica. Khandhar v. Elfenbein, 943 F.2d 244, 249 (2d Cir. 1991) (holding that under New York law a relevant factor to applying collateral estoppel is "the presence of new evidence."); Karibjanian v. Chromalloy Pharmaceutical, Inc., No. 90-4641, 1991 U.S. Dist. LEXIS 2949 at *16 (E.D. Pa. Mar. 13, 1991) (discussing the impact of new evidence on the applicability of collateral estoppel); see also Ramon-Sepulveda v. INS, 743 F.2d at 1307-1308 (9th Cir. 1984) (discussing the impact of new evidence on whether or not the government may reopen a deportation proceeding under the repealed 8 C.F.R. § 242.22).
However, Petitioner persuasively argues that the sworn statement she gave prior to the second removal proceeding cannot be considered new evidence. Under analogous circumstances, the Third Circuit has held that for evidence to constitute "new evidence," it must consist of "facts in existence at the time of trial of which the aggrieved party was excusably ignorant."Bohus v. Beloff, 950 F.2d 919, 930 (3d Cir. 1991) (explaining the concept of "new evidence" under Rule 60(b) of the Federal Rules of Procedure); Karibjanian v. Chromalloy Pharmaceutical, Inc., 1991 U.S. Dist. LEXIS at *16 (rejecting an argument to bar application of collateral estoppel based on "new evidence" because "plaintiff gives no explanation why this evidence could not have been discovered earlier with due diligence.").
While the Third Circuit's opinion in Bohus does not address the definition of "new evidence" in relation to the theory of collateral estoppel, application of Rule 60(b) of the Federal Rules of Civil Procedure has a similar effect as a decision not to apply collateral estoppel. It permits courts to disregard a valid and final judgment where "new evidence" has come to light.
Here, the evidence sought to be presented — of Petitioner's alienage — could have been introduced at the first removal proceeding through the exercise of due diligence. Indeed, the government did have this evidence, in the form of her application for lawful permanent residence. The exclusion of this evidence does not make Petitioner's subsequent sworn statement "new evidence." Instead, Petitioner's sworn statement is the same evidence excluded at the first proceeding — just in a different form. Thus, the government cannot claim to have been ignorant of this evidence at the time of the first proceeding, and Petitioner's sworn statement cannot be considered to be new evidence. Content controls, not form.
III. Conclusion
For the reasons stated above, in applying Third Circuit law, the Court concludes that the Board of Immigration Appeals erred in overturning the immigration judge's holding that the government's second removal proceeding against Petitioner is barred by the legal doctrine of collateral estoppel. Although the government committed a procedural error and failed to meet its burden of proof in the first proceeding, the government had a full and fair opportunity to litigate the issue of Petitioner's alienage in the first removal proceeding.
And, although the Court finds it manifestly unfair to the government to be foreclosed from proving Petitioner's alienage, the issue of fairness is not determinative on the docrtine of collateral estoppel. Thus, the Petition for Habeas Corpus will be granted and an Order entered directing Petitioner's release. The release will be stayed for two days to allow the government to seek a stay from the Third Circuit if it files a Notice of Appeal.
An appropriate Order follows.
ORDER
AND NOW, this 22nd day of September, 2004, upon consideration of Petitioner's Petition for Habeas Corpus and the government's response thereto, it is hereby ORDERED that the Petition is granted and Petitioner shall be released from custody by the Department of Homeland Security in two days from the date of this Order.