Case: 19-60456 Document: 00515804546 Page: 1 Date Filed: 04/01/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED April 1, 2021 No. 19-60456 Lyle W. Cayce Clerk Marcos A. Cruz Rodriguez, also known as Marcos Cruz- Rodriguez, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A088 413 328 Before King, Smith, and Haynes, Circuit Judges. Per Curiam: Marcos A. Cruz Rodriguez, a legal permanent resident, was charged with robbery in Texas state court. As a result of this, Cruz Rodriguez was twice charged as removable by the federal government, once in 2012, and again, in 2016. He challenged the second removability charge as barred by res judicata. But, because the second charge was based on a different statutory provision and was unavailable to the Government when the first charge was brought, the Board of Immigration Appeals determined that res judicata did not bar it. We agree. Cruz Rodriguez also argues that the Government failed Case: 19-60456 Document: 00515804546 Page: 2 Date Filed: 04/01/2021 No. 19-60456 to meet § 1227(a)(2)(A)(iii)’s statutory requirements and that the Board of Immigration Appeals denied him due process of law. These two issues, however, have not been addressed by the Board of Immigration Appeals in the first instance and are therefore not yet ripe for disposition. Accordingly, we DISMISS IN PART and otherwise DENY the petition. I. Petitioner Marcos A. Cruz Rodriguez (“Cruz Rodriguez”), a native and citizen of Honduras, entered the United States in 2010 as an asylee. In August 2011, the United States Citizenship and Immigration Services adjusted his status to legal permanent resident under the Immigration and Nationality Act (“INA”) § 209(b). In March 2012, Cruz Rodriguez pleaded guilty in a Texas court to two counts of robbery and was placed on eight years of deferred adjudication probation. And, as a consequence, the Government charged Cruz Rodriguez with removability under 8 U.S.C. § 1227(a)(2)(A)(i). On August 29, 2013, an immigration judge (“IJ”) concluded that Cruz Rodriguez was removable. Cruz Rodriguez, shortly thereafter, filed a motion for an emergency stay of removal and an accompanying motion to reopen his case. As a result, in March 2014, the IJ readjusted Cruz Rodriguez’s status back to legal permanent residency, under 8 U.S.C. § 1255(a), while granting an attendant waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h). The Government did not appeal this ruling. Following the readjustment, in November 2015, Cruz Rodriguez violated the terms of his probation; the Texas court then formally adjudicated him guilty and imposed a two-year term of imprisonment. Subsequently, in September 2016, the Government again charged Cruz Rodriguez as removable, this time under 8 U.S.C. § 1227(a)(2)(A)(iii). 2 Case: 19-60456 Document: 00515804546 Page: 3 Date Filed: 04/01/2021 No. 19-60456 The IJ sustained the second charge of removability. But following a series of motions, the IJ eventually terminated the removal proceedings against Cruz Rodriguez, concluding that res judicata …
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