Daniel Valencia-Alvarez v. Alberto R. Gonzales, Attorney General

Petitioner, Daniel Valencia-Alvarez, a native and citizen of Mexico, seeks relief from the Board of Immigration Appeals’ determinations that he was removable for having been convicted of a controlled substance offense and that he was ineligible for cancellation of removal because his continuous presence in the United States “stopped” at the time he committed the offense. On appeal, Valencia-Alvarez basically advances two arguments. First, he contends that respondent was barred by res judicata from asserting additional charges after the Board of Immigration Appeals (“BIA”) held that his underlying conviction was not an aggravated felony. Second, Valencia-Alvarez argues that the provision of 8 U.S.C. § 1229b(d)(l), enacted as part of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, which “stops” an alien’s accrual of continuous presence in the United States at the time that he commits a crime (sometimes referred to as the “committed an offense” provision), may not be applied retroactively to his 1996 offense. We reject the first argument because the BIA’s 2002 decision was not a final judgment rendered on the merits in a…