Res judicata might apply in removal proceedings

The Second Circuit in August 2004 outlined, but did not decide, the issue of whether res judicata (claim preclusion) applied against the government. The government issued a Notice to Appear and only included some, but not all, of the possible charges it could bring. Ultimately, it temporarily obtained a deportation order but because the criminal conviction that formed the basis of the order was vacated, the deportation order was lifted and essentially the immigrant prevailed in the deporation proceedings.

The Second Circuit noted that if the government issued a new Notice to Appear based on charges it could have included (but for whatever reason chose not to include) in the original Notice to Appear, the immigrant could argue that under res judicata, the government could not bring the new charges.

In a lengthy footnote of Johnson v. Ashcroft, No. 03-201 (2d Cir. Aug. 5, 2004), the judges explained that the issue is a complicated one and that res judicata does apply in some immigration proceedings. They explained that immigration proceedings are frequently treated as civil proceedings. Therefore, there is some weight for the argument that res judicata might extend to the deportation and removal context.

Ultimately, though, the judges did not say how they would rule on the question, because it was not critical to disposing of the appeal. The judges were essentially ordering the government to file a new Notice to Appear and the res judicata issue would not arise until after the immigrant objected to receiving the forthcoming new Notice to Appear.

A district court applied res judicata to prevent a second NTA that was based on convictions already known by ICE at the time it filed its first unsuccessful NTA. In Murray v. Ashcroft (D. Conn. June 9, 2004), the district court prevented ICE from bringing a second NTA based on two convictions it already sued upon (two marijuana convictions) and one conviction it knew about but did not sue upon the first time. The first NTA charged only that the immigrant was deportable due to aggravated felony convictions, a claim that the BIA rejected. The second NTA attempted to charge the immigrant with being deportable due to being convicted of drug-related crimes.

The district court in Murray cited a case regarding citizenship petitions, Medina v. INS, 993 F.2d 499, 503-04 (5th Cir. 1993). Note also the case of Ramon-Sepulvda v. INS, 824 F.2d 749 (9th Cir. 1987).