Case: 19-60699 Document: 00516168969 Page: 1 Date Filed: 01/17/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED January 17, 2022 No. 19-60699 Lyle W. Cayce Clerk Santiago Alejandro Diaz Esparza, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals BIA No. A096 567 521 Before Owen, Chief Judge, and Clement and Higginson, Circuit Judges. Priscilla R. Owen, Chief Judge: Santiago Alejandro Diaz Esparza seeks review of a Board of Immigration Appeals (BIA) decision finding him subject to removal under 8 U.S.C. § 1227(a)(2)(A)(ii), which permits the deportation of aliens who commit two crimes involving moral turpitude (CIMTs) after admission to Case: 19-60699 Document: 00516168969 Page: 2 Date Filed: 01/17/2022 No. 19-60699 the United States.1 Diaz Esparza argues that this court should vacate the BIA’s decision because res judicata bars the removal proceedings against him, he has not been convicted of two CIMTs, and his convictions did not occur after admission. For the reasons that follow, Diaz Esparza’s arguments are unavailing, and we dismiss his petition for review. I Diaz Esparza, a native and citizen of Mexico, entered the United States without inspection in 1999. He adjusted his status to that of a lawful permanent resident in 2005. In 2013, Diaz Esparza was convicted of deadly conduct in violation of Texas Penal Code section 22.05(a). In 2014, Diaz Esparza was convicted of evading arrest with a motor vehicle in violation of Texas Penal Code section 38.04. The following year, the Department of Homeland Security (DHS) served Diaz Esparza with a notice to appear, charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(iii). Section 1227(a)(2)(A)(iii) renders “deportable” aliens convicted of aggravated felonies after being admitted to this country.2 Finding that Diaz Esparza’s conviction for evading arrest constituted an aggravated felony, the immigration judge (IJ) sustained the charge of removability and ordered Diaz Esparza’s removal. The BIA dismissed Diaz Esparza’s appeal, and this court denied his petition for review.3 However, the Supreme Court granted certiorari, vacated this court’s judgment, and remanded the case back to us for additional consideration in light of Sessions v. Dimaya, which held a portion of the 1 See 8 U.S.C. § 1227(a)(2)(A)(ii). 2 8 U.S.C. § 1227(a)(2)(A)(iii). 3 See Diaz-Esparza v. Sessions, 697 F. App’x 338 (5th Cir. 2017) (per curiam), cert. granted, vacated, 138 S. Ct. 1986 (2018) (mem.). 2 Case: 19-60699 Document: 00516168969 Page: 3 Date Filed: 01/17/2022 No. 19-60699 statutory definition of “aggravated felony” unconstitutionally vague.4 We remanded the case to the BIA, and the BIA terminated the removal proceedings because Diaz Esparza was not removable as charged under Dimaya. In 2019, DHS served Diaz Esparza with a second notice to appear, this time charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(ii). Section 1227(a)(2)(A)(ii) provides that “[a]ny alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal …
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