Saturday, August 16, 2008

Cospito: Collateral Estoppel Applies Only If First Proceeding Sufficiently Adjudicative

Cospito v. Mukasey, No. 07-1619 (3d Cir. Aug. 14, 2008)
Judges Fuentes, Aldisert, and Garth
Per curiam decision

The topic of collateral estoppel also involves the area of issue preclusion, claim preclusion, and res judicata. Each of them seek to prevent the government from arguing something that had already been decided before.

In this case, Ms. Cospito committed theft crimes in 1993 and 1996 but when she sought legal permanent residence status in 1998, she did not mention the convictions. The immigration agency that reviews LPR applications (then INS and now known as USCIS) approved the application. Can INS (now ICE) try in 2002 to deport Ms. Cospito based on the 1993 and 1996 convictions even though in 1998 they granted her LPR status?

The Third Circuit avoided the moral quandry of whether it would be fair to help someone who hid crimes during the 1998 application process and focused on the legal rule for collateral estoppel. Collateral estoppel can be applied against the immigration authorities (DHS, ICE, USCIS, then-INS). But you have to meet the legal standard.

For issue preclusion you must prove:
  1. the identical issue was adjudicated before
  2. the issue was actually litigated
  3. the previous determination was necessary to the decision
  4. the party being precluded from relitigating the issue was fully represented in the prior action
You must prove the prior proceeding was adjudicative in nature. The INS/USCIS approval of Ms. Cospito's LPR application was not an adjudicative proceeding. Key details that distinguish it from adjudicative proceedings is they are not normally adversarial in nature and do not involve an immigration judge.

If you want to raise issue preclusion based on a USCIS approval, look into this case more closely. Research whether you might be able to use issue preclusion against ICE if the type of USCIS approval was quite different from Ms. Cospito's -- were there adversarial types of questions or actions while USCIS reviewed your application? Did it involve a ruling by someone in the process who analyzed both sides of a particular issue?

Steven A. Morley of Morley, Surin & Griffin in Philadelphia, PA and David V. Bernal with Andrew C. Maclachlan of OIL litigated the case. The IJ was Miriam K. Mills.


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