Fontes v. Gonzales , 483 F.3d 115 ( 2007 )

United States Court of Appeals
For the First Circuit
______
No. 05-1755
ANTONIO DALOMBO FONTES,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General,
Respondent.
______
Before
Selya, Circuit Judges,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
__________
ORDER ON PETITION FOR PANEL REHEARING
Entered: August 14, 2007
Fontes has filed a petition for panel rehearing and rehearing
en banc. In the petition, Fontes raises two issues. As to the
issue of whether Fontes was entitled to a section 212(c) waiver of
deportability, the petition for panel rehearing is summarily
denied.
Fontes also raises a challenge to the panel's holding that,
under the Real ID Act, this court lacks jurisdiction to review the
BIA's rejection of his res judicata argument. The ACLU has moved
for leave to file an amicus brief on the latter issue. We have
allowed the motion to file the amicus brief.
As framed by those filings, the late-blooming issue involves
a question of whether the Suspension Clause is violated by reading
the statute to deny Fontes review in this instance (in which his
habeas action was affected by the REAL ID Act). We note, in this
regard, that Fontes does not argue the Suspension Clause issue as
a per se ground for relief but, rather, proposes that we allow a
grace period for assertion of his claim. Cf. Rogers v. United
States, 180 F.3d 349, 354 (1st Cir. 1999).
In the briefs filed by Fontes before the panel, Fontes never
articulated a claim that application of the Real ID Act to bar
jurisdiction here might violate the Suspension Clause of the
Constitution. U.S. Const. art. I, § 9, cl. 2. In the usual course,
we will not address an issue raised by a party for the first time
in a petition for rehearing. See Anderson v. Beatrice Foods Co.,
900 F.2d 388, 397 (1st Cir. 1990)(order on rehearing). By the same
token, we will not address an issue raised by an amicus that was
not seasonably raised by a party to the case. See Lane v. First
Nat'l Bank of Boston, 871 F.2d 166, 175 (1st Cir. 1989). We
discern no reason here to depart from our customary practice in
either of these respects.
Still, we acknowledge that the Suspension Clause issue is not
only of constitutional dimension but also is colorable.
Consequently, we wish to make clear that our holding on the
jurisdictional issue should not be read, under principles of stare
decisis, as barring a future panel of this court, in a case in
which the Suspension Clause issue is timely raised, directly
presented, and fully briefed, from considering the import (if any)
of the Suspension Clause with respect to the jurisdictional
question. This panel intimates no view as to the outcome of such
an inquiry.
This course of action seems especially appropriate in this
case because, even if we had jurisdiction to review the BIA's
rejection of Fontes's res judicata claim, we would deny that claim
on the merits. As noted in our earlier opinion, Fontes argued that
res judicata barred the government from asserting that he had
committed an aggravated felony. The BIA explained that it
generally applies the doctrine of res judicata, but found that
doctrine inapplicable here because the statutory definition of
aggravated felony extant at the time of Fontes's prior removal
proceedings was different and far narrower. Fontes's offense did
not meet the then-pertinent definition.
In the BIA's view, that did not preclude further removal
proceedings because, in its 1996 enactment of IIRIRA, Congress both
broadened the definition of aggravated felony and applied it
retroactively. See 8 U.S.C. §§ 1101(a)(43)(F), 1227(a)(2)(iii).
Because a different and broader definition now controlled and that
definition applied retroactively, the two proceedings did not
involve the same claim or cause of action. Thus, an essential
element of res judicata was missing from the equation. For that
reason, the BIA declined to terminate the current removal
proceeding.
We think that the BIA correctly refused to terminate Fontes's
removal proceedings in light of the clear congressional intent that
its broadened definition of aggravated felony be applied
retroactively. The government still had to prove that Fontes's
conviction met the new definition of aggravated felony. It was
neither an error of law nor an abuse of discretion for the BIA, to
whom some deference on interpretation of immigration statutes is
owed, not to accept Fontes's claim that res judicata barred any
further proceedings by the government.
We note a further difficulty with Fontes's argument. Given
Congress's decision to make the broader definition apply
retroactively, it is at least arguable that the decision in the
prior removal proceeding was not "final" for res judicata purposes.
There is no claim that Congress was forbidden to apply its expanded
definition retroactively by the Ex Post Facto Clause, U.S. Const.
art. I, § 9, cl. 3. and an exception to res judicata traditionally
exists "where between the time of the first judgment and the second
. . . there has been an intervening . . . change in the law
creating an altered situation." State Farm Mut. Auto. Ins. Co. v.
Duel, 354 U.S. 154, 162 (1945).
Accordingly, we deny Fontes's petition for panel rehearing
(the petition for rehearing en banc will be disposed of by separate
order).
So Ordered.
By the Court:
Richard Cushing Donovan, Clerk
_______________________________
By: Margaret Carter,
Chief Deputy Clerk
[Certified copies to Board of Immigration appeals. Copies to Mr.
Olen, Mr. Sullivan, Ms. Scadron, Ms. Bing, & Mr. Neville.]