Thursday, February 22, 2007

Res Judicata (Claim Preclusion) Applies In Immigration Court

ICE cannot bring a second case based on evidence and charges it could have brought (but for whatever reason did not do so) in a case it tried and lost. This is based on res judicata or claim preclusion.

In Bravo-Pedroza v. Gonzales, No. 03-73999 (9th Cir. Feb. 6, 2007), the Ninth Circuit explained that if ICE brings a case on one theory and for whatever reason chooses not to pursue a second theory then loses the case, ICE may not start a new case based on the second theory using the same evidence it had available the first time.

In Bravo-Pedroza, a lawful permanent resident (someone with a green card) was guilty of three crimes. He obtained a waiver for the first two but did not have any waiver for a petty theft in 1996. From 2001 to May 2003, ICE argued that the petty theft was an aggravated felony that made him deportable. By a change in the law in June 2002, petty theft was not an aggravated felony so ICE lost. Strangely, ICE had a chance to amend the charges and add a charge that the petty theft was a crime of moral turpitude, but ICE chose not to. Therefore, when in June 2003 ICE started a completely new case with that charge, they were barred from doing so because it was fully litigated in the first case and ICE had a complete opportunity from June 2002 to May 2003 to tack on that charge in the first case.

This result is sensible because it treats immigration proceedings in the same way as other civil cases -- if two sides have a dispute, bring all your charges and complaints in one case. You can't let one side pepper the other with a long series of cases based on the exact same facts!


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