Bravo-Pedroza v. Gonzales ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAIRO BRAVO-PEDROZA, 
Petitioner, No. 03-73999
v.
 Agency No.
A36-144-276
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
January 10, 2007—San Francisco, California
Filed February 6, 2007
Before: John T. Noonan and Richard R. Clifton,
Circuit Judges, and George P. Schiavelli,* District Judge.
Opinion by Judge Noonan
*The Honorable George P. Schiavelli, United States District Judge for
the Central District of California, sitting by designation.
1465
BRAVO-PEDROZA v. GONZALES 1467
COUNSEL
Mónica M. Ramírez, San Francisco, California, for the peti-
tioner.
Blair T. O’Connor, Assistant United States Attorney, Wash-
ington, D.C., for the respondent.
OPINION
NOONAN, Circuit Judge:
This case presents the question of whether res judicata bars
the Secretary of Homeland Security (the Secretary) from initi-
ating a second deportation case on the basis of a charge that
he could have brought in the first case, when, due to a change
of law that occurred during the course of the first case, he lost
the first case. We hold that the Secretary is barred.
FACTS AND PROCEEDINGS
Jairo Bravo-Pedroza (Bravo), the petitioner, is a native and
citizen of Colombia, who was admitted as a lawful permanent
1468 BRAVO-PEDROZA v. GONZALES
resident of the United States in 1977. In 1985, he was con-
victed under Cal. Penal Code § 211 of robbery. In 1986, he
was convicted under Cal. Penal Code § 459 of burglary. In
1990, the Immigration and Naturalization Service (the INS)
charged Bravo with deportability on the basis of these two
convictions involving moral turpitude. The Immigration
Judge found him deportable but granted him relief under for-
mer Immigration and Naturalization Act § 212(c), 8 U.S.C.
§ 1182(c) (1990). In 1992, he was convicted under Cal. Vehi-
cle Code § 10851(a) of taking a vehicle without the consent
of the owner. In 1996, he was convicted under Cal. Penal
Code § 666 of petty theft with priors and sentenced to prison
for seven years.
On June 28, 2001, the INS charged Bravo with removabil-
ity as an alien whose 1996 conviction of petty theft with pri-
ors constituted an aggravated felony. Bravo was taken into
custody.
On October 2, 2001, an immigration judge found Bravo
removable as charged. On February 7, 2002, the Board of
Immigration Appeals upheld the order of removal. Bravo peti-
tioned this court for review. While this petition was pending,
on June 6, 2002, we held that a conviction for a petty theft
does not qualify as an aggravated felony. United States v.
Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc). On
December 16, 2002, this court sua sponte remanded Bravo’s
case to the Board of Immigration Appeals.
The Code of Federal Regulations provided: “At any time
during deportation or removal proceedings, additional or sub-
stituted charges of deportability and/or factual allegations
may be lodged by the Service in writing.” 8 C.F.R. § 3.30(2003) (now 8 C.F.R. § 1003.30 (2007)). No additional
charges were brought against Bravo. On May 30, 2003, the
Board of Immigration Appeals, in light of Corona-Sanchez,
vacated the removal order and terminated removal proceed-
ings.
BRAVO-PEDROZA v. GONZALES 1469
A few days later, on June 4, 2003, the Secretary as the suc-
cessor of the INS filed new charges of removability against
Bravo on the grounds that his 1985 conviction for robbery and
his 1986 conviction for burglary as well as the 1996 convic-
tion for petty theft with priors were crimes of moral turpitude.
Bravo responded that the burglary and robbery convictions
were the subject of the waiver of deportability granted him in
1990, and that his petty theft conviction had been litigated and
concluded in his favor in May, 2003. The IJ upheld the
charges based on the burglary, robbery, and petty theft con-
victions.
Bravo appeals.
ANALYSIS
[1] One general proposition, two cases, and one federal reg-
ulation guide our judgment. The general proposition: Courts
may assume “that Congress has legislated with an expectation
that [res judicata] will apply except when a statutory purpose
to the contrary is evident.” Astoria Fed. Sav. & Loan Ass’n v.
Solimino, 501 U.S. 104, 108 (1991) (citation omitted). We
find nothing in the relevant statutes making res judicata inap-
plicable.
[2] The two cases: Res judicata bars the government from
bringing a second case based on evidence (a birth certificate)
that it could have presented in the first case. Ramon-
Sepulveda v. INS, 824 F.3d 749, 750-51 (9th Cir. 1987) (per
curiam) (Ramon-Sepulveda I). This case appears to be dispo-
sitive. The government offers a distinction and invokes the
statement: “[I]n the administrative law context . . . res judicata
[is] applied flexibly.” Artukovic v. INS, 693 F.3d 894, 898
(9th Cir. 1982). The government argues that a decision to
bring new charges is like a prosecutor’s decision to bring new
criminal charges: this exercise of discretion is not barred by
res judicata.
1470 BRAVO-PEDROZA v. GONZALES
[3] The regulation is that already cited: 8 C.F.R. § 3.30(2003). Plainly it states that new charges may be bought dur-
ing the pendency of immigration proceedings. It says nothing
about new charges after one proceeding is over. By regula-
tion, the government has provided a means for adding
charges, a procedure which the Secretary seeks to circumvent
here by starting a new case. We have not approved of govern-
ment attempts to “bypass its own regulations” in the immigra-
tion context in the past, Ramon-Sepulveda v. INS, 863 F.2d
1458, 1461 (9th Cir. 1988) (Ramon-Sepulveda II), and will
not condone it here.
[4] This conclusion is not only one of elementary fairness
in what is, after all, a civil suit. Our reading is reinforced by
the regulation governing motions to reopen. The government
may reopen at any point during the pendency of the proceed-
ings it has brought. 8 C.F.R. § 3.2 (2003) (now 8 C.F.R.
§ 1003.2 (2007)). In our case, the government could have
taken account of the change in law that wrecked its first case
and moved to reopen with the new charges any time between
June 6, 2002 and May 30, 2003. It did not do so.
[5] The government had abundant opportunity to exercise
the judgment which it describes as prosecutorial discretion. It
could have appealed the IJ’s 1990 decision that prevented the
government from using the burglary and robbery convictions,
in tandem, as a basis for removal. It could have moved to
reopen after our decision of June 2002. Having done neither,
the Secretary cannot avoid the application of the general prin-
ciple of res judicata.
We resolve the question reserved in Valencia-Alvarez v.
Gonzales, 469 F.3d 1319, 1324 n.7 (9th Cir. 2006). There, the
petitioner’s res judicata argument was rejected because he had
not obtained a prior final judgment on the merits in a separate
action. Id. at 1323-24. That basic requirement of res judicata
is met here, distinguishing Bravo’s case from Valencia-
BRAVO-PEDROZA v. GONZALES 1471
Alvarez.
PETITION FOR REVIEW GRANTED.