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Faustino Santana v. John Ashcroft

Case Conclusion Date: 01.10.2005

Practice Area: Immigration

Outcome: Testing "collateral estoppel" in immigration

Description: Petitioner Faustino Santana-Albarran ("Santana-Albarran") seeks review of the denial of his application for cancellation of removal and adjustment of status under § 240A(b)(1) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229b(b) (1). 1 The Immigration Judge ("IJ") found that Santana-Albarran could prove three out of the four statutory requirements for cancellation of removal, but that he failed to establish that he had been physically present in the United States for a continuous ten-year period. The Board of Immigration Appeals ("BIA") affirmed without opinion. Santana-Albarran seeks review of the decision arguing that his continuous physical presence in the country had already been established in the removal hearing and should therefore have been given preclusive effect in the subsequent cancellation hearing; we DENY the petition for review. Before proceeding..., we must first address our jurisdiction to entertain his petition for review. The INA specifically divests jurisdiction of a court to review judgments regarding the granting of discretionary relief, including the cancellation of removal. 8 U.S.C. § 1252(a)(2)(B). The denial of relief based on the ground that the alien has failed to demonstrate a continuous physical presence, however, is a non-discretionary factual determination and properly subject to appellate review. Elnemr v. INS, 95 Fed.Appx. 121, 2004 WL 515858, at *4 (6th Cir. Mar.15, 2004); The first issue which Santana-Albarran raises in his petition is that his continuous physical presence in the country had been established in the removal hearing, and therefore, the IJ erred by failing to give this finding preclusive effect in his subsequent cancellation hearing. We have held that "[t]he availability of collateral estoppel is a mixed question of law and fact which this court reviews de novo." Hammer v. INS, 195 F.3d 836, 840 (6th Cir.1999), cert. denied, 528 U.S. 1191, 120 S.Ct. 1247, 146 L.Ed.2d 105 (2000). Applying this standard, we conclude that the doctrine of collateral estoppel is inapplicable in this case. The United States Supreme Court has defined the doctrine of collateral estoppel as providing that "once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation." Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). The Court has applied the doctrine of collateral estoppel in the context of "an administrative agency ... acting in a judicial capacity" as well. United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966). Invoking the doctrine of collateral estoppel, Santana-Albarran argues that the IJ's finding in the removal hearing that "he last entered the United States in 1985" should be treated as an established fact in the cancellation hearing, and therefore, demonstrates that he has been in the country for a continuous ten-year period. J.A. at 115 (Removal Hr'g Tr.). Collateral estoppel is inapplicable because resolution of the issue of when Santana-Albarran last entered the United States was not "necessary and essential" to the judgment in the removal hearing that his presence was unlawful. The removal hearing sought to establish Santana-Albarran's current status in the country. Whether the last entry was in 1985 or 1995, the dispositive issue at the removal hearing was whether at the time he entered, whenever that might have been, did he do so without permission. There is no time requirement that needs to be established in the removal hearing. By contrast, in the cancellation hearing, the exact date that he entered the country is critical for determining if the requisite ten- year period has been met.

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