Roberto Calero v. Loretta Lynch ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1056
ROBERTO RAMON CALERO,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: July 30, 2015 Decided: August 13, 2015
Before MOTZ, KING, and GREGORY, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Timothy R. Woods, BERLIN AND ASSOCIATES, P.A., Baltimore,
Maryland, for Petitioner. Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, John S. Hogan, Assistant Director,
Ashley Martin, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roberto Ramon Calero, a native and citizen of Nicaragua,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s (“IJ”) order denying his motion to terminate his removal
proceedings and ordering him removed to Nicaragua. We deny the
petition for review.
In 2006, Calero, then a lawful permanent resident of the
United States, was convicted in the Circuit Court for Montgomery
County, Maryland, of attempted robbery with a dangerous weapon,
in violation of Md. Code Ann., Crim. Law § 3-403 (LexisNexis
2012). Calero was sentenced to 10 years’ imprisonment, with 6
years suspended. Calero’s initial removal proceedings, which
took place in San Antonio, Texas, were terminated without
prejudice in January 2010. Three years later, the Department of
Homeland Security (“DHS”) filed a second Notice to Appear
(“NTA”), again charging Calero with removability as an
aggravated felon based on the same Maryland conviction. See 8
U.S.C. § 1227(a)(2)(A)(iii) (2012).
Calero moved to terminate his removal proceedings, arguing
that the doctrines of res judicata and collateral estoppel
precluded the DHS from instituting a second round of removal
proceedings based on the Maryland conviction because it was the
basis for Calero’s first removal proceedings, which were
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terminated without prejudice. The immigration judge rejected
this argument, sustained the charge of removability, and ordered
Calero removed to Nicaragua. The Board agreed with the IJ’s
analysis of the issue and dismissed Calero’s appeal. This
petition for review timely followed.
Pursuant to 8 U.S.C. § 1252(a)(2)(C) (2012), we lack
jurisdiction, except as provided in 8 U.S.C. § 1252(a)(2)(D)
(2012), to review the final order of removal of an alien
convicted of certain enumerated crimes, including an aggravated
felony. Under § 1252(a)(2)(C), we retain jurisdiction “to
review factual determinations that trigger the jurisdiction-
stripping provision, such as whether [Calero] [i]s an alien and
whether [ ]he has been convicted of an aggravated felony.”
Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). If we
are able to confirm these two factual determinations, then,
under 8 U.S.C. § 1252(a)(2)(C), (D), we may only consider
“constitutional claims or questions of law.” 8 U.S.C.
§ 1252(a)(2)(D); see Turkson v. Holder, 667 F.3d 523, 526-27
(4th Cir. 2012).
We have jurisdiction to review Calero’s legal argument that
res judicata or collateral estoppel foreclosed the DHS from
pursuing a second round of removal proceedings. See Johnson v.
Whitehead, 647 F.3d 120, 129-31 (4th Cir. 2011). We review
legal issues de novo, “affording appropriate deference to the
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[Board]’s interpretation of the INA [Immigration and Nationality
Act] and any attendant regulations.” Li Fang Lin v. Mukasey,
517 F.3d 685, 691-92 (4th Cir. 2008).
“Res judicata, or claim preclusion, bars the relitigation
of any claims that were or could have been raised in a prior
proceeding between the same parties.” Sartin v. Macik, 535 F.3d
284, 287 (4th Cir. 2008). Specifically, res judicata precludes
a later claim when three factors are present: “(1) a final
judgment on the merits in a prior suit; (2) an identity of the
cause of action in both the earlier and the later suit; and
(3) an identity of parties or their privies in the two suits.”
Clodfelter v. Republic of Sudan, 720 F.3d 199, 210 (4th Cir.
2013) (internal quotation marks omitted). “[C]ollateral
estoppel, or issue preclusion, . . . bars the relitigation of
specific issues that were actually determined in a prior
action.” Sartin, 535 F.3d at 287.
Our review of the record confirms the Board’s affirmance of
the IJ’s conclusion that the decision to terminate Calero’s
first removal proceedings was not a decision on the merits that
was entitled to preclusive effect. As the transcript of that
hearing makes plain, this termination decision was without
prejudice to the DHS’ ability to later charge Calero with
removability on the same basis, but in a more accurately drafted
NTA. The conclusion that such a termination is not entitled to
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preclusive effect is consistent with governing law. See Cooter
& Gell v. Hartmax Corp., 496 U.S. 384, 396 (1990) (explaining
that, when a case is dismissed without prejudice, that dismissal
“does not operate as an adjudication upon the merits, and thus
does not have a res judicata effect” (alteration, citation, and
internal quotation marks omitted)); Mann v. Haigh, 120 F.3d 34,
36 (4th Cir. 1997) (quoting Cooter & Gell for same proposition).
We reach the same result in terms of Calero’s collateral
estoppel argument. Despite his suggestion to the contrary,
Calero’s removability as an aggravated felon was not actually
resolved in the first removal proceedings. See Ramsay v. INS,
14 F.3d 206, 210 (4th Cir. 1994) (recognizing that collateral
estoppel precludes only those issues that “have been actually
determined and necessarily decided in prior litigation”
(internal quotation marks omitted)).
Finally, we reject Calero’s contention that the DHS failed
to adhere to the proper administrative procedures by issuing a
second NTA in a different immigration court rather than pursuing
reopening in the first. As the Board observed, the DHS has
broad discretion to determine whether to issue an NTA to an
alien. See 8 C.F.R. § 239.1(a) (2015). Given that the first
removal proceedings were terminated without prejudice, the DHS
acted well within its discretion to file a second NTA instead of
reopening the already terminated proceedings. See Alvear-Velez
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v. Mukasey, 540 F.3d 672, 682 n.6 (7th Cir. 2008) (rejecting
similar argument because, although reopening was an option,
“nothing in regulation section 1003.23(b)(1) suggests that this
was the immigration authorities’ only manner of proceeding”);
see also In re Avetisyan, 25 I. & N. Dec. 688, 695 (BIA 2012)
(explaining the difference between administrative closure of
proceedings and termination of proceedings and noting that, when
proceedings have been terminated and there is no successful
appeal of that ruling or a motion, “the DHS [would have] to file
another charging document to initiate new proceedings”).
For these reasons, we deny Calero’s petition for review.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
PETITION DENIED
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