No. 23-1069 ___________________________

Simon Gavino Quito-Guachichulca

Petitioner

v.

Merrick B. Garland, Attorney General of the United States

Respondent

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National Immigration Project of the National Lawyers Guild

Amicus on Behalf of Petitioner ____________

Petition for Review of an Order of the Board of Immigration Appeals ____________

Submitted: February 15, 2024 Filed: December 9, 2024 ____________ Before BENTON, GRASZ, and STRAS, Circuit Judges. ____________ STRAS, Circuit Judge. The question in this case is whether Minnesota’s crime of third-degree criminal sexual conduct falls within the federal definition of “rape.” The answer is no, so we grant Simon Quito-Guachichulca’s petition for review.

I.

Sixteen years after being admitted as a lawful permanent resident, Quito pleaded guilty to third-degree criminal sexual conduct, see Minn. Stat. § 609.344, subd. 1(d) (2013); see also State v. Hart, 477 N.W.2d 732, 737 (Minn. Ct. App. 1991) (explaining that it is a lesser-included offense of more serious sex crimes). Removal proceedings followed, based on the government’s view that the crime was an “aggravated felony” that made him deportable. 8 U.S.C. § 1227(a)(2)(A)(iii).

The question has always been which. See id. § 1101(a)(43) (listing numerous possibilities). At first, the government claimed it was “a crime of violence.” Id. § 1101(a)(43)(F). But while Quito’s petition for review was pending, the Supreme Court concluded that the designation “was impermissibly vague.” Sessions v. Dimaya, 584 U.S. 148, 152 (2018); see 8 U.S.C. § 1101(a)(43)(F) (incorporating 18 U.S.C. § 16). Not long after, we vacated the removal order to the extent it relied on the crime-of-violence classification and remanded to the Board of Immigration Appeals for reconsideration. See Quito-Guachichulca v. Sessions, No. 16-1431 (8th Cir. July 27, 2018).

On remand, the government switched to the theory that Quito’s crime qualified as “rape,” another type of “aggravated felony.” 8 U.S.C. § 1101(a)(43)(A). An immigration judge and the Board of Immigration Appeals agreed, and now it is our turn to consider the issue.

-2- II.

Before we do, however, we must answer a preliminary question. Quito argues that allowing the government to change theories violates res judicata, which “bars claims that were or could have been litigated in [an] earlier proceeding.” Wedow v. City of Kansas City, 442 F.3d 661, 669 (8th Cir. 2006) (emphasis added). It is unclear whether the doctrine applies in immigration proceedings. See Cardona v. Holder, 754 F.3d 528, 529 (8th Cir. 2014). But even if it does, it would pose no obstacle here, because one of the requirements is “a final judgment on the merits.” Id. at 530 (citation omitted).

On that score, Quito can point us only to the first Board order, which dealt with the government’s crime-of-violence argument but never considered rape as a possibility. Even though the Board’s silence was a result of the government’s failure to raise it, the order lost whatever finality it had once we vacated and remanded. See Figg v. Russell, 433 F.3d 593, 600 (8th Cir. 2006) (holding that neither a vacated decision nor the “vacatur” itself was “a final and valid determination” (emphasis omitted)); see also 18A Charles Alan Wright & Arthur