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Department of Justice
Executive Office for hnmigration Review

Board ofImmigration Appeals Office of the Clerk

5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 22041

VIKRAM K. BADRINATH, ESQUIRE 100 North Stone Avenue, Ste 302 Tucson, AZ 85701-1514

OHS/ICE Office of Chief Counsel - TUS P.O. Box 25158 Phoenix, AZ 85002

Immigrant & Refugee Appellate Center |



Qate of

this notice: 12/29/2011

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

Donna Carr Chief Clerk


Panel Members: Grant, Edward R.

Cite as: Jesus Gaytan-Castro, A078 047 050 (BIA Dec. 29, 2011)

U.S. Department of Justice
Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board oflmmigration Appeals


A078 047 050 - Tucson, AZ



Immigrant & Refugee Appellate Center |


Matthew W. Kaufman Senior Attorney

CHARGE: Notice: Sec. 237(a)(l)(A), I& N Act [8 U.S.C. § 1227(a)(l)(A)] Inadmissible at time of entry or adjustment of status under section 212(a)(7)( A)(i)(I), I&N Act [8 U.S.C. § l 182(a)(7)(A)(i)(I)] Immigrant - no valid immigrant visa or entry document APPLICATION: Termination

The Department of Homeland Security (DHS) appeals the Immigration Judge's November 25, 2009, decision terminating proceedings on the basis of res judicata. The respondent has filed a brief in opposition. The appeal will be dismissed. This appeal presents questions of law,which the Board reviews under a de nova standard. 8 C.F.R. § 1003.1 (d)(3)(ii). The parties do not dispute the relevant factual and procedural history, so we will not repeat it here. We agree with the Immigration Judge that the present removal proceedings are barred under the doctrine of res judicata even if the respondent was erroneously granted adjustment of status in the prior proceedings. "Under the doctrine of res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action even if that judgment may have been wrong or rested on a legal principle subsequently overruled in another case."
Paulo v. Holder,_ F.3d _,No. 07-71!98, 2011 U.S. App. LEXIS 9101

2011) (quoting Federated Dep 't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981)) (9th Cir. May 4, (internal quotation marks omitted). "A judgment merely voidable because based upon an erroneous view of the law is not open to collateral attack, but can be corrected only by a direct review and not by bringing another action upon the same cause."
Baltimore Steamship Co. v. Phillips,

274 U.S. 316, 325 (1927) (holding that res judicata applies even to erroneous judgment). Although the instant proceedings are based on a different charge of removability than the prior proceedings, the central question underlying the charge is the same as that which was decided in the

Cite as: Jesus Gaytan-Castro, A078 047 050 (BIA Dec. 29, 2011)

A078 0470 50 prior proceedings, viz. whether the respondent was eligible for adjustment of status pursuant to his father's visa petition. Because the central issue and the nucleus of facts relevant to that issue are the same now as then, the decision in the prior proceedings has res judicata effect here. The DHS had recourse from what may have been an erroneous grant of adjustment of status via appeal or timely motion to reopen and rescind. The fact that it did not avail itself of those avenues of relief precludes it from avoiding the application of res judicata now. Bravo-Pedroza v. Gonzales, 475 F.3d 135 8 (9th Cir. 2007) (holding res judicata bars new proceeding on new charge based on same underlying fact, when DHS did not avail itself of opportunity to reopen prior proceedings); Ramon-Sepulveda v. INS, 824 F.2 d 749 (9th Cir. 1987) (precluding, on res judicata grounds, subsequent proceeding using evidence that could have been produced in prior proceeding). This result is consistent with the public policy objectives underlying the venerated doctrine of res judicata. See Federated Dep 't Stores, Inc. v. Moitie, supra, at 401-02 (describing the interest in having an end to litigation as being even more compelling in times of crowded dockets). For these reasons, the appeal will be dismissed.


- j

Immigrant & Refugee Appellate Center |

ORDER: The appeal is dismissed.


Cite as: Jesus Gaytan-Castro, A078 047 050 (BIA Dec. 29, 2011)