Ninth Circuit on How Collateral Estoppel Applies in Immigration Proceedings
Like a great many folks, I am constantly searching for clarifications on the finer points and nuanced approaches involved in arriving at the answers to questions of great importance in the realm of Immigration, Nationality, and Citizenship law. In a Precedent issued on March 6, 2012, the Ninth Circuit Court of Appeals offered some keen insight on the issue of Collateral Estoppel in Immigration Proceedings. To be more specific, the case involved a reconsideration of a grant of Deferral [of Removal] under CAT (United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment). CAT Deferral is a bastion of last resort for individuals who would not qualify for any other form of relief usually because of serious criminal activity inside the United States. Out of a sense of beneficence and common decency, the United States subscribed to the U.N. Convention and has pledged not to return, extradite or refoul any person to a state where there are substantial grounds for believing that he would, more likely than not, be in danger of torture or of being killed.
It must be kept in mind that there are different varieties of "Immigration Proceedings". This particular case arose from the Removal Proceedings context. Such a proceeding is primarily "adversarial" in nature with the Government (ICE Counsel) seeking to have an individual ejected from the United States for a specific reason (charge of removability) and the alien respondent(s) seek(s) to defeat the charge or obtain relief from removal. The parties present their arguments both in-person and in-writing to the Immigration Judge (IJ). The IJ makes various findings based on the evidence presented. Such evidence may be in-writing (certain applications, briefs, affidavits, and various other documentation) as well as oral testimony. In addition, since the IJ actually sees the person, (s)he may consider demeanor in determining credibility and the proper weight to be given to testimony.
In Removal Proceedings, the alien may choose to fight the charges or may admit them and seek relief from removal. The initial burden of proof is on the Government. If an alien admits the charges then the Government has met its burden of proof. At that point, the burden shifts to the alien to prove eligibility for relief. Such relief is usually based on some form of benefit under the INA. If a benefit is actually an "entitlement" then the alien has a much stronger position and things are likely to be resolved in the alien's favor. Most benefits under the immigration laws are not true entitlements but rather are a "basis for" a benefit, an interim benefit, or a preliminary step towards a benefit. Under such circumstances, the true benefit, which would result in relief from removal, is merely based on that underlying "potential benefit" and the final relief really requires an exercise of discretion. The final burden remains with the applicant to demonstrate that they are deserving of a favorable exercise of discretion.
Other times relief is independent from an underlying benefit, and thus is an entitlement. An entitlement is a legally enforceable right. The best example of an entitlement that I can think of is a claim to citizenship. The United States cannot deport a United States Citizen. Certain other provisions under the law are entitlements but for specific reasons that bar someone from receipt of that otherwise entitlement. For instance, if you can establish that you meet the criteria for asylum, you get it unless barred for a specific reason. As for withholding or cancellation of removal/deportation, if found eligible, you will get it unless specifically barred or excluded from consideration or receipt.
Conversely, when an alien is strictly seeking a benefit via an application or petition, the form of such proceedings is markedly different. In the benefits context, the "inquisitorial" approach is most appropriately used. In this approach, all parties (at least in theory) should be seeking the truth of the matter based upon the merits of the request or claim based on a close examination of the evidence offered as proof. The issues and/or concepts of collateral estoppel, equitable estoppel, res judicata, nunc pro tunc, etcetera, do not apply equally across the various contexts involved. Even the Ninth Circuit in the excerpt that follows acknowledges that such concepts apply only to "certain issues of law or fact".
Additionally, I say "various contexts" because some additional types of proceedings have an influence on the outcome of the two contexts discussed herein. Criminal cases and matters as well as matters within the realms of national security and international relations or diplomacy do have a bearing on some immigration-related cases. From here, I will let the Ninth Circuit speak for itself. Oyeniran v. Holder, No. 09-73683(9th Cir. March 6, 2012) , explains:
A. Collateral Estoppel Applies in Immigration Proceedings
 It is beyond dispute that the doctrine of collateral estoppel (or issue preclusion) applies to an administrative agency's determination of certain issues of law or fact involving the same alien in removal proceedings. Allen v. McCurry, 449 U.S. 90, 94 (1980); Ramon-Sepulveda v. INS, 824 F.2d 749, 750 (9th Cir. 1987) (per curiam) (doctrine applies even when the agency reopens a removal proceeding for new evidence); Matter of Fedorenko, 19 I. & N. Dec. 57, 57 (BIA 1984) (doctrine conclusively establishes the ultimate facts of a subsequent deportation proceeding and precludes reconsideration of issues of law resolved by the prior judgment - absent a change in the controlling law).
Collateral estoppel applies to a question, issue, or fact when four conditions 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. Montana v. United States, 440 U.S. 147, 153-54 (1979); Clark v. Bear Stearns & Co., Inc., 966 F.2d 1318, 1320 (9th Cir. 1992).
 We conclude that the BIA erred by rehashing the historical facts and its findings of law as applied to the 2003 and 2004 incidents of violence that formed the basis of its 2005 decision to grant deferral. We hold that the Government is conclusively barred from re-litigating the following findings: the attacks in 2003 and 2004 constituted torture as that term is defined by the CAT based upon the injuries suffered by the Archbishop and other family members; the acts of violence were intended to punish or intimidate the religious and political beliefs of the Archbishop due to his prominent role in criticizing the Nigerian government, opposing Sharia law, and converting Muslims to Christianity; the attackers were Islamic extremists; the past attacks threatened Oyeniran's safety by virtue of his father's activities, the family relationship, and the culture of Nigeria; and the government of Nigeria was either involved or acquiesced in the prior attacks.
 These issues were "actually litigated" in 2005 and the findings were "necessarily determined in the prior proceeding" to grant Oyeniran CAT relief in 2005. United States v. Lasky, 600 F.2d 765, 769 (9th Cir. 1979).
 The Government had a fair opportunity to litigate the circumstances of the 2003 and 2004 attacks at the first hearing. The Government specifically attacked the evidence in that very proceeding, for example, by cross examining the witnesses and challenging the weight of the evidence. All of the weaknesses mentioned by the BIA in 2009 were evident when Oyeniran first offered the evidence in 2005.
The Government argues that the 2009 decision is justified by the Archbishop's testimony, as he did not appear in the 2005 proceedings. We disagree. The introduction of new evidence on a matter previously resolved is not an exception to collateral estoppel. Ramon-Sepulveda, 824 F.2d at 750-51; see Bravo-Pedroza v. Gonzales, 475 F.3d 1358, 1359 (9th Cir. 2007) ("Res judicata bars the government from bringing a second case based on evidence . . . that it could have presented in the first case."); 18 Moore's Fed. Practice § 132.02[c], [d] (3d ed. 2010) (distinguishing evidence of "changed circumstances" from evidence that is "historical in nature").
 Moreover, the BIA's flip-flop on past issues is unsupported and arbitrary because the additional evidence introduced during the 2009 hearing was stronger than the evidence presented in 2005. In 2005, Oyeniran's testimony about the violence was hearsay, but in 2009 the Archbishop testified as a percipient witness to the attacks. The Archbishop corrobo- rated that the attacks had been committed by Islamic extremists who would harm his children. He testified that the attackers in 2003 wore distinctive Sharia police uniforms. He introduced another police report confirming that the attackers in 2004 had come "to eliminate his children." Additionally, the violence prompted the Archbishop's church to hire security protection "against Islamic Terrorists." In all, the Archbishop's testimony reinforced and was fundamentally consistent with the evidence supporting his son's earlier application for CAT protection.
We are not persuaded by the Government's argument that the 2009 hearing involved a different claim that was not identical to the 2005 claim. Instead, we find a clear identity on the issue of the nature of the 2003 and 2004 attacks. The ramifications of those past events were plainly resolved in Oyeniran's favor in the prior CAT proceeding. Nor do the new facts explain the BIA's complete reversal of its view of past events. In sum, this case is a textbook example that "repose is justified on the sound and obvious principle of judicial policy that a losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on an issue identical in substance to the one he subsequently seeks to raise." Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 107 (1991). B. New Evidence that Arose after the First Decision Impacts Deferral 
The BIA erred when it reasoned that collateral estoppel did not apply because the regulations state that termination of deferral is subject to "a de novo determination." 8 C.F.R. § 1208.17(d)(3). The BIA failed to recognize that collateral estoppel applies to findings made in the initial determination and that new evidence and changed circumstances now permit it to reconsider the substantive question of whether the alien with deferral status is more likely than not to be tortured in the future if returned home.
It is obvious that the initial decision to grant deferral under the CAT does not forever bind the agency to the ultimate conclusion. The very nature of deferral permits reevaluation of whether it is more likely than not that an alien will be tortured in the future based on new facts. Al Mutarreb v. Holder, 561 F.3d 1023, 1031 (9th Cir. 2009) (in a new proceeding, the Government can present "facts that have arisen or come to light after" the original proceeding took place); Belayneh v. INS, 213 F.3d 488, 491-92 (9th Cir. 2000) (conditions in a country can change over time).
On remand, the BIA may consider events that occurred after the 2005 hearing. The BIA must evaluate any new evidence in light of the prior findings on past events to decide Oyeniran's current application for deferral from removal. The new evidence includes, but is not limited to, evidence such as the circumstances surrounding Oyeniran's clandestine trip to Nigeria in 2007 and, as discussed below, the 2008 Sharia arrest warrant. See Boer-Sedano v. Gonzales, 418 F.3d 1082, 1091-92 (9th Cir. 2005) (an applicant's return trip to his country is relevant to his fear of future persecution, but standing alone it is not fatal to an asylum claim). At the same time, the BIA's prior decision conclusively resolved certain past events and those historical events cannot be re-litigated. The BIA must respect the principle of repose.
 Nonetheless, we decline Oyeniran's invitation to reach the merits of whether substantial evidence supports the decision to deny his application for deferral. The BIA should have an opportunity to conduct a proper analysis of the entire record of relevant evidence."
Here is the primary BIA case which is cited by the ninth Circuit:
(1) Under the judicially-developed doctrine of collateral estoppel, a prior denaturalization judgment conclusively establishes the "ultimate facts" of a subsequent deportation proceeding, i.e., those facts upon which an alien's deportability and eligibility for relief from deportation are to be determined, and precludes reconsideration of issues of law resolved by the prior judgment, so long as the issues in the prior suit and the deportation proceeding arise from virtually identical facts and there has been no change in the controlling law.
(2) The doctrine of collateral estoppel applies in deportation proceedings when there has been a prior judgment between the parties that is sufficiently firm to be accorded conclusive effect, the parties had a full and fair opportunity to litigate the issues resolved by and necessary to the outcome of the prior judgment, and the use of collateral estoppel is not unfair. Title v. INS, 322 F.2d 21 (9th Cir. 1963), distinguished.
(3) The language in section 242(b) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1252(b)(1982), which provides that a deportation proceeding shall be "the sole and exclusive procedure for determining the deportability of an alien," does not preclude the use of collateral estoppel in a deportation proceeding; rather this language was intended to exempt deportation proceedings from the provisions of any other law, most particularly the Administrative Procedure Act of June 11, 1946, 60 Stat. 237, repealed by Pub. L. No. 89-554, 80 Stat. 378 (1966). (4) A former prisoner of war of the Nazis who was forced to serve, upon penalty of death, as a concentration camp guard is deportable pursuant to section 241(a)(19) of the Act, 8 U.S.C. Sec. 1251(a)(19)(1982), for assisting the Nazis in persecuting others, even if his actions were involuntary and he personally harbored no racial or religious prejudice against Jews; the objective effect of an alien's actions, not his motivation and intent, controls in determining whether he "assisted" in persecution within the meaning of section 241(a)(19).
(5) The 1981 amendment to section 244(a) of the Act, 8 U.S.C. Sec. 1254(a)(1982), which withdrew suspension of deportation as an available form of relief in the case of aliens found deportable pursuant to section 241(a)(19) for assisting the Nazis in persecution, is properly applicable to an application for suspension of deportation filed prior to the 1981 amendment.
I have not checked to see if any of the above holdings have been revisited, modified, distinguished or overruled. In light of the current cases involving the Terrorist Related Inadmissibility Grounds (TRIG) and/or the persecutor bar it is a distinct possibility that something may have changed already or soon will. Attorneys who represent asylum-seekers would not be wasting their time checking into these cases and those cited therein. Best of luck!
Joseph P. Whalen Is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.