Alvear-Velez v. Mukasey, 540 F.3d 672 (7th Cir. Sept. 2, 2008) (res judicata does not prevent DHS from charging noncitizen with deportability based on aggravated felony conviction where IJ had held in prior proceeding that same conviction was not a CMT and charged aggravated felony ground had not yet been created by statute; "the rule against claim splitting, which is one component of res judicata, is inapplicable when a statutory change creates a course of action unavailable in the previous action. Cf. Car Carriers, Inc. v. Ford Motor Co., 789 F.2d 589, 593-94 (7th Cir.1986) ("[P]rior litigation acts as a bar not only to those issues which were raised and decided in the earlier litigation but also to those issues which could have been raised in that litigation." (emphasis in original)); see also Wedow v. City of Kansas City, Mo., 442 F.3d 661, 669 (8th Cir.2006) (noting that the rule against claim splitting "does not apply to claims that did not exist when the first suit was filed"). Indeed, courts consistently have refused to apply res judicata to preclude a second suit that is based on a claim that could not have been asserted in the first suit. See Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 38 (1st Cir.1998) ("Of course, res judicata will not attach if the claim asserted in the second suit could not have been asserted in the first.").").