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Dormescar v. U.S. Attorney General, 690 F.3d 1259 (11th Cir. 2012)

Case Conclusion Date: 08.15.2012

Practice Area: Immigration

Outcome: Res Judicata did not apply and DHS can amend any part of a Notice to Appear

Description: In this case Mr. Dormescar was placed in removal proceedings as an arriving alien due to old criminal convictions. The Immigration Judge (IJ) ordered him removed. On appeal the Board of Immigration Appeals (BIA) reversed and terminated the proceedings denying the DHS request for a remand so it could lodge additional charges based other criminal convictions. DHS then filed a second NTA based on new criminal charges once again stating that Mr. Dormescar was an arriving alien to which the IJ agreed and ordered him removed. On appeal to the BIA we argued that the Mr. Dormescar was admitted to the U.S. as a matter of law when the BIA terminated the first proceeding. The BIA agreed but rather than terminating the proceedings as it did before, it remanded the case back to the IJ so that DHS could amended the Notice to Appear. On remand DHS amended the NTA and alleged that Mr. Dormescar had been admitted but was now deportable based upon his criminal conviction. The IJ found that Mr. Dormescar was removable as an aggravated felon and ordered him removed. On appeal to the BIA we argued that the BIA had erred by remanding the case instead of terminating the proceedings and that the case was barred by the legal theory of Res Judicata which prevents DHS from recharging an alien with removability when an alien has already been the subject of a removal proceedings based on the same criminal activity previously charged or one which DHS could have previously charged. The BIA disagreed and affirmed the removal order. On appeal to the 11th Circuit Court of Appeals we argued that the BIA acted arbitrarily, disregarded precedent from the 9th Circuit Court of Appeals, the second removal proceedings were barred by Res Judicata, and that the BIA was without authority to allow DHS to amend the NTA from alleging the client was an arriving alien to one who was present in the U.S. but deportable due to a criminal conviction. The 11th Circuit disagreed with our argument and affirmed Mr. Dormescar's order of removal holding Res Judicata did not apply and that DHS has the ability to amend any part of an NTA. In doing so it created a conflict between itself and the 9th Circuit Court of Appeals

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