U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 leesburg Pike, Suite 2000 Falls Church, Virginia 22041

Teran, Lee J. Immigration & Human Rights Clinic 2507 N.W. 36th Street San Antonio, TX 78228-0000

OHS/ICE Office of Chief Counsel - SNA P. 0. Box 1939 San Antonio, TX 78297-1939

Immigrant & Refugee Appellate Center | www.irac.net

Name: SANCHEZ-RUBIO, ELOY

A077-405-856

Date of this notice: 6/20/2011

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

Donna Carr Chief Clerk

Enclosure

Panel Members: Grant. Edward R. Malphrus. Garry D. Mullane, Hugh G.

Cite as: Eloy Sanchez-Rubio, A077 405 856 (BIA June 20, 2011)

'

US. Inpartment of Justice

Execotive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

A077 405 856 - San Antonio, TX

Date:

JUNJ J 0 2D1J
In re: ELOY SANCHEZ-RUBIO IN REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Lee Teran, Esquire Crossan, Jr.

Thomas

Assistant Chief Counsel APPLICATION: Termination

The Department of Homeland Security ("DHS") appeals the Immigration Judge's March 3, 2010, decision terminating the proceedings against the respondent. The respondent has submitted a brief in opposition. The DHS's appeal will be sustained, the removal proceedings will be reinstated, and the record will be remanded as set forth below. The Board reviews Immigration Judges' findings of fact, including credibility determinations, under a clearly erroneous standard. 8 C.F.R. 1003. l (d)(3)(i). a de novo standard. 8 C.F.R. 1003.l(d)(3)(ii). On appeal, the DHS argues that the Immigration Judge erred in terminating the proceedings with prejudice based upon the doctrine of resjudicata. We agree. In 2007, the DHS initiated removal proceedings against the respondent alleging that he was an alien who was inadmissible under section 212(a) of the Immigration and Nationality Act, 8 U.S.C. 1182(a), by virtue of his presence in the United States without having been admitted (l.J. at 2; Exh. 9). The Immigration Judge found that the respondent had in fact been admitted to the United States, and therefore terminated the proceedings with prejudice, finding that the respondent could be removed, if at all, only under section 237(a) of the Act, 8 U.S.C. 1227(a) (l.J. at 2). On September I 0, 2009, this Board affirmed that decision. In late September 2009, the OHS again initiated the present removal proceedings against the respondent, charging him under section 237(a)(2)(A)(ii) of the Act as being removable for having been convicted of two crimes involving moral turpitude (l.J. at 2; Exh. 1 ). In support of that charge, the OHS alleged two convictions, one of which occurred prior to the initiation of the respondent's earlier proceedings and the other of which occurred in late August 2009, after the Immigration Judge rendered his prior decision but approximately 2 weeks before the Board affirmed that decision on We review questions of law, including whether the parties have met the relevant burden of proof, and issues of discretion under

Cite as: Eloy Sanchez-Rubio, A077 405 856 (BIA June 20, 2011)

AQ77405 856

appeal. The Immigration Judge terminated these proceedings with prejudice after determining that the doctrine of (l.J. at 3-4). For the doctrine ofresjudicata to apply, the case in which the valid, final judgment was rendered must have involved the same parties and the same claim, and there must have been a full and fair opportunity to reach the merits on that claim. 480-81 (1982); could not presently advance any claim of

res judicata barred the DHS from relitigating the respondent's first conviction

Kremer

v.

Chemical Const. Corp., 456 U.S. 461,

Medina v. INS, 993 F.2d 499, 504 (5th Cir. 1993). Thus, even assuming the DHS inadmissibility against the respondent the DHS is not barred from bringing new charges of deportability against the respondent under a different section of the Act. See Peters v. Ashcroft, 383 F.3d 302, 306 n. 2 (5th Cir. 2004) (noting that a prior removal proceeding based upon a wholly separate provision of the Act has no resjudicata effect on a later removal proceeding); see also Maringo v. Holder, 364 Fed. Appx. 903 (5th Cir. 2010) (same).
Moreover, because one of the convictions upon which the new charge is based did not exist yet as of the date of the Immigration Judge's prior decision, the DHS did not have a "full and fair

Immigrant & Refugee Appellate Center | www.irac.net

opportunity" to litigate that claim previously. Whether the respondent is deportable for having been convicted of two crimes involving moral turpitude is a claim that has not yet been adjudicated and that could not by reasonable diligence have been adjudicated previously, and thus resjudicata could not apply to that claim. Accordingly, the DHS's appeal will sustained and the record will be remanded to the Immigration Judge for further proceedings consistent with this opinion. ORDER: The DHS's appeal is sustained, the r- moval proceedings are reinstated, and the record eedings and the entry of a new decision.

is remanded to the Immigration Judge for further pr

Cite as: Eloy Sanchez-Rubio, A077 405 856 (BIA June 20, 2011)

IMMIGRA'l'ION COURT 800 DOLOROSA STREET-SUI'rE 300 SAN ANTONIO, In the Matter of Case No.: SANCHEZ-RUBIO, Respondent ELOY IN REMOVAL PROCEEDINGS A077-405-856 TX 78207

ORDER OF THE IMMIGRATION JUDGE This is a summary of the oral decision entered on proceedings should be appealed or reopened, the official opinion in the case.

3 - CJ 3 -/a
If the

This memorandum is solely for the convenience of the parties.

Immigrant & Refugee Appellate Center | www.irac.net

the oral decision will become

The respondent was ordered removed from the United States to or in the alternative to . Respondent's application alternative to . Respondent's application for voluntary departure was granted until upon posting a bond in the amount of with an alternate order of removal to for voluntary departure was denied and or in the respondent was ordered removed to

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. )withdrawn. )denied ( )withdrawn. ( )withdrawn. ( )denied )granted

Respondent's application for:

[ [ [ [ [

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Asylum was (

)granted

)denied( was (

Withholding of removal was ( A Waiver under Section ( )withdrawn.

)granted (

)granted (

)denied

Cancellation of removal under section 240A(a) was

Respondent's application for: Cancellation under section 240A(b) (1) ( ) withdrawn. If granted, was ( ) granted ) denied it is ordered that the respondent be issued (2) was ( )granted ( )denied

all appropriate documents necessary to give effect to this order. Cancellation under section 240A(b) ( )withdrawn. If granted it is ordered that the respondent be issued was ( )granted ( )denied

all appropriated documents necessary to give effect to this order. Adjustment of Status under Section ( )withdrawn. If granted it is ordered that the respondent be issued ( ( ) withholding of removal ) withdrawn. until ( ) deferral of

all appropriated documents necessary to give effect to this order. Respondent's application of ( ) granted ( ) denied removal under Article III of the Convention Against Torture was

( [ [ (

Respondent's status was rescinded under section 246. Respondent is admitted to the United States as a As a condition of admission, Respondent notice. Respondent was advised of the limitation on discretionary relief for failure to appear as ordered in the Immigration Judge's oral decision. Proceedings were terminated uh -At;" Other: Date: Mar 3, 2010 knowingly respondent is to post:a"$'

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bond.

filed a frivolous asylum application after proper

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