Khan v. Gonzales ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 22, 2006
Charles R. Fulbruge III
No. 05-60525 Clerk
Summary Calendar
NAFIS AHMED KHAN,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Oder of the
Board of Immigration Appeals
BIA No. A28 729 571
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Nafis Ahmed Khan, a native and citizen of Pakistan, has
petitioned for review of a final order of the Board of
Immigration Appeals (BIA) summarily affirming the order of
removal entered by the Immigration Judge (IJ) denying
discretionary waiver of deportation under INA § 202(c), 8 U.S.C.
§ 1182(c). Khan was convicted by a California court in 1992 of
solicitation of murder. The IJ determined that the offense
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-60525
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qualified as an aggravated felony and a crime involving moral
turpitude, rendering Khan deportable.
Khan argues that he was eligible for a discretionary waiver
because the California court vacated his conviction in 1999. We
may review a final order of removal only when “the alien has
exhausted all administrative remedies available to the alien as
of right.” 8 U.S.C. § 1252(d)(1). “Failure to exhaust an issue
creates a jurisdictional bar as to that issue.” Roy v. Ashcroft,
389 F.3d 132, 137 (5th Cir. 2004). “When a petitioner seeks to
raise a claim not presented to the BIA and the claim is one that
the BIA has adequate mechanisms to address and remedy, the
petitioner must raise the issue in a motion to reopen prior to
resorting to review by the courts.” Goonsuwan v. Ashcroft, 252
F.3d 383, 390 (5th Cir. 2001). Because Khan did not raise this
issue before filing for review in this court, this court lacks
jurisdiction to review it. See id.; see also Roy, 389 F.3d at
137. Accordingly, his petition is dismissed in part.
Khan also argues that a prior removal proceeding was
terminated in his favor, that the matter of his removability
therefore is res judicata, and that the respondent is
collaterally estopped from seeking his removal. The doctrine of
res judicata “provides that a valid and final judgment precludes
a second suit between the same parties on the same claim or any
part thereof.” Medina v. INS, 1 F.3d 312 (5th Cir. 1993). The
doctrine also precludes parties “‘from relitigating issues that
No. 05-60525
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... could have been raised in [a prior] action.’” In re Gibraltar
Resources, Inc., 210 F.3d 573, 576 (5th Cir. 2000) (citation
omitted). “However, the application of res judicata has been
limited to issues of fact or law necessary to the decision in the
prior judgment. In other words, the allegedly barred claim must
arise out of the same nucleus of operative facts involved in the
prior litigation.” Rhoades v. Penfold, 694 F.2d 1043, 1048 (5th
Cir. 1983). Because the issue of Khan’s removability based on
his 1992 conviction does not involve issues of fact or law
necessary to the decision in the prior judgment of arise out of
the same nucleus of operative facts involved in the prior
litigation, it is not barred by the doctrine of res judicata.
Accordingly, Khan’s petition for review is denied in part.
PETITION FOR REVIEW DENIED IN PART, DISMISSED IN PART.