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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 2204/

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Zuniga, Bertha A. OHS/ICE Office of Chief Counsel - PSD
Zuniga Law, PLLC 566 Veterans Drive
2619 McCullough Ave. Pearsall, TX 78601
San Antonio, TX 78212

Name:KURREMULA,SAI SANDEEP A 208-554-742

Date of this notice: 8/10/2017

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

Sincerely,

."\,J

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Cole, Patricia A.
Greer, Anne J.
Wendtland, Linda S.

Userteam: Docket

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Cite as: Sai Sandeep Kurremula, A208 554 742 (BIA Aug. 10, 2017)
U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 Leesburg Pilce, Suite 2000


Falls Church, Virginia 2204/

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KURREMULA,SAISANDEEP DHS/ICE Office of Chief Counsel - PSD
A208-554-742 566 Veterans Drive
C/O STD C Pearsall, TX 78601
566 VETERANS DRIVE
PEARSALL, TX 78061

Name:KURREMULA,SAISANDEEP A 208-554-742

Date of this notice: 8/10/2017

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.5(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.

Sincerely,
"
/J
J
ur- ,",_;
/;_/J,.
Cynthia L. Crosby
Deputy Chief Clerk

Enclosure
Panel Members:
Cole, Patricia A.
Greer, Anne J.
Wendtland, Linda S.

Userteam:

Cite as: Sai Sandeep Kurremula, A208 554 742 (BIA Aug. 10, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Exec'!ltive Office for Immigration Review

Falls Church, Virginia 22041

File: A208 554 742 - Pearsall, TX Date: AUG 1 0 2017


In re: Sai Sandeep KURREMULA

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Bertha A. Zuniga,Esquire

ON BEHALF OF OHS: Elizaveta Ivanova


Assistant Chief Counsel

APPLICATION: Termination

The respondent is a native and citizen of India The Department of Homeland Security (the
"OHS'') appeals from the Immigration Judge's February 17,2017, decision terminating
proceedings. The appeal will be dismissed.

The procedural history of this case is as follows. On November 18,2016, the DHS filed
a Notice to Appear (''NTA"), which charged the respondent with removability under
section 237(a)(l)(C)(i) of the Immigration and Nationality Act,8 U.S.C. 1227(a)(l)(C)(i). On
January 11,2017, the Immigration Judge terminated proceedings with prejudice because OHS
failed to file any documents in support of the charge of removal. After failing to file a Notice of
Appeal, the DHS filed a new NTA on January 12, 2017. In the second NTA,the OHS charged the
respondent with removability under section 237(a)(l)(C)(i) of the Act,but changed the allegation
regarding what regulatory subsection the respondent had violated. As aforementioned, the
Immigration Judge terminated the new proceedings on February 17,2017. The DHS now appeals
from the Immigration Judge's February 17, 2017,decision.

On appeal, the OHS argues that the Immigration Judge erred in terminating removal
proceedings against the respondent. Specifically, the DHS argues that the Immigration Judge
erred in determining that res judicata prevents the filing a new NTA.

We review an Immigration Judge's findings of fact for clear error, but review de novo
questions oflaw, discretion,and judgment. 8 C.F.R. 1003.l(d)(3)(i)-(ii). See Matter o/Z-Z-O-,
26 I&N Dec. 586 (BIA 2015).

We agree with the Immigration Judge's decision terminating the removal proceedings. The
United States Court of Appeals for the Fifth Circuit (the "Fifth Circuit"), where jurisdiction for
this case arises, has concluded that res judicata applies to some extent in adjudicatory removal
proceedings. See Andrade v. Gonzales, 459 F.3d 538,545 (5th Cir. 2006) (citing Medina v. INS,
993 F.2d 499 (5th Cir. 1993)). The Fifth Circuit has determined that res judicata, or claim
preclusion, applies when; (1) the parties to the respective actions are identical; (2) the prior
judgment was rendered by a court of competent jurisdiction: (3) the prior action resulted in a final

Cite as: Sai Sandeep Kurremula, A208 554 742 (BIA Aug. 10, 2017)
A.208 554 742

judgment on the merits; and (4) the same cause of action is involved in both cases. See Liberto
v. D.F. Stauffer Biscuit Co., Inc. , 441 F.3d 318,326 (5th Cir. 2006).

Applying the framework adopted by the Fifth Circuit, we agree with the Immigration
Judge's determination that since the DHS charged the respondent with the same charge of
removability as the prior proceedings, and the supporting allegation of failure to comply with

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8 C.F.R. 214.2(f)(10)(E) could have been brought during the previous proceedings, resjudicata
applies. See Medina v. INS, 993 F.2d 499 (applying res judicata principles to deportation
proceedings). Indeed, as stated by the Immigration Judge, the DHS should have appealed the prior
termination and moved to remand (IJ at 4).

Accordingly, the following order will be entered.

ORDER: The appeal is dismissed.

FOR THE BOARD

Cite as: Sai Sandeep Kurremula, A208 554 742 (BIA Aug. 10, 2017)
(

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
PEARSALL, TEXAS

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)
In the Matter of: ) DETAINED
)
KURREMULA, Sai Sandeep ) A208-554-742
)
In Removal Proceedings )

ORDER OF THE IMMIGRATION JUDGE ON RESPONDENT'S MOTION TO TERMINATE

Procedural History

On November 18, 2016, the Department of Homeland Security (Department) filed the first Notice to
Appear against the above-named respondent, which vested jurisdiction with this Court. 8 CFR
1003.14(a). The respondent admitted allegation(s) number one and two, denied allegations three and
four, and contested that he is subject to removal as charged under Section 237(a)(])(C)(i). The Court
scheduled the case for a hearing on removability, indicated that the burden of proof is on the Department
to prove the charge of removability and set a filing deadline.

On January I 1, 2017, the date set for removability, the Court noted that the Department failed to file any
documents in support of the charge ofremoval, sustained the respondent's objection to the Department's
proffer of documents at the hearing and terminated proceedings with prejudice. The Department
reserved appeal and a full oral decision was rendered, noting-the deadline for the Department to file an
appeal with the Board of Immigration Appeals (Board) was February 10, 2017. The Department then
filed a new NTA the following day, January 12, 2017 (2nd NTA).

On February 7, 2017, at the initial master calendar hearing for the 2nd NTA, the Court expressed doubt
as to the propriety of the 2nd NTA being filed while the original NTA was on appeal and whether or not
resjudicata applied. The Court set a deadline for briefs on the issue of resjudicata on February 15,
2017.

Statement of Propriety of 2nd NTA


The original case, which commenced with the NTA filed on November 18, 2016, was still an active case
on January 12, 2017, after the Department reserved appeal of the Court's January 11, 2017 order
terminating proceedings with prejudice. By filing the 2nd NTA on January 12, 2017, a new Record of
Proceedings (ROP) was created and this resulted in two parallel proceedings for the same individual.
This creates procedural difficulties in requiring the simultaneous handling of two separate cases
involving the same respondent. Although there is no published caselaw on this exact issue, the Board
( (

has shown that it is preferable to have only one proceeding. See Matter ofMerilien, 2004 WL 2374462
(BIA July 27, 2004) ("[I]n order to correct the procedural problems created by the parallel removal
proceedings, these proceedings shall be terminated.") Therefore, this Court will follow the Board's lead
and terminate the 2nd NTA to correct the legal difficulties in this case that arose when the Department
created _parallel proceedings.

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Doctrine of Res Judicata

In addition to the difficulties in parallel proceedings,which is no longer the case as the Department
waived their right to appeal when the appeal deadline lapsed on February 10, 2017, there is also an issue
of whether or not the 2nd NTA is barred by resjudicata. Both parties timely filed briefs on this issue.

The Fifth Circuit has explained that claim preclusion,or "pure" resjudicata, is the "venerable legal
canon" that insures the finality of judgments and thereby conserves judicial resources and protects
litigants from multiple lawsuits. See Medina v. J.N.S., 993 F.2d 499,503 (5th Cir. 1993). This "pure"
resjudicata is appropriate once four conditions are satisfied: 1,) the parties in a later action are identical
to or in privity with the parties in the prior action; 2) the judgment in the prior action was rendered by a
court of competent jurisdiction; 3) there is a final judgment on the merits in the prior action; and 4) the
same claim or cause of action must be involved in both suits. See Eubanks v. Federal Deposit Ins.
Corp., 977 F.2d 166,169 (5th Cir. 1992). Finally, "If these conditions are satisfied, claim preclusion
prohibits either party from rai_sing any claim or defense in the later action that was or could have been
raised in support of or in ofposition to the cause of action asserted in the prior action." U.S. v.
Shanbaum, IO F.3d 305 (5 Cir. 1994), citing Matter ofHowe, 913 F.2d 1138, 1144 (5th Cir. 1990).

The Department's argument that the Court did not rule on the merits of the case is mistaken and
contradicts the seminal case on the topic. First, the Department states in its brief that no evidence was
produced on the record and no arguments were made. In this case,the burden of proof was on the
Department,which failed to produce any documentary evidence to support the charge of removal. Both
parties made legal arguments as to the merits of the case,specifically regarding whether or not the
Department could prove by clear and convincing evidence that the respondent was removable as
charged. Being a purely legal issue,no testimony was needed nor would it have been helpful in making
a decision. The Court took the evidence (or lack thereof) and both parties' arguments into consideration
when it terminated proceedings with prejudice. Therefore, the Department's statement that "A review of
the record reveals that the Immigration Judge has never ruled on the merits of the case" is incorrect. The
"merits of the case" for a hearing on removability is whether the respondent is removable as charged,
not whether the respondent is eligible and deserving of some form of relief. The Court rendered a full
oral decision on this issue and, therefore, ruled on the merits of this case.

Additionally, and-perhaps more importantly, the Department misstates a point of law. The seminal case
in the Fifth Circuit,cited by b_oth parties,states that "Although jurisprudence has required traditionally
that the judgment in the first case be 'on the merits,' it is more accurate to state that 'in the first litigation
there was an opportunity to get to the merits."' Medina v. lN.S., 993 F.2d 499 (5th Circ. 1993)
(emphasis added). The Depa..rtment had the opportunity to present evidence to make its case, both
parties presented legal arguments on the issue of removability and the fact that the Department failed to
take advantage of that opportunity does not negate the Court's decision.
(

There is no dispute that the parties to the actions are identical and the prior judgment was rendered by a
court of competent jurisdiction: The remaining issue is whether the same cause of action is involved .in
both cases. See Medina, 993 }'.2d at 503. There is no question that the charge of removal is the same
and some of the allegations are the same. The Department's argument is that resjudicata does not apply
because some of the allegations are different. However, these new allegations are not based on facts that
arose after the Court terminated the first proceedings.

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The Supreme Court has issued decisions defining the doctrine of resjudicata and its purpose. To quote
two of these cases:

Under resjudicata, 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.
Cromwell v. County ofSac, 94 U.S. 351, 352 (1876). . . .As this Court and other courts
have often recognized, resjudicata and collateral estoppel relieve parties of the cost and
vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent
decisions, encourage reliance on adjudication. Montana v. United States, 440 U.S. 147,
153 (1979).

Allen v. McCurry, 449 U.S.90 (1980) (emphasis added).

The general rule of resjudicata applies to repetitious suits involving the same cause of
action. It rests upon considerations of economy of judicial time and public policy
favoring the establishment of certainty in legal relations. The rule provides that when a
court of competent jurisdiction has entered a final judgment on the merits of a cause of
action, the parties to .the suit and their privies are thereafter bound 'not only as to every
matter which was offered and received to sustain or defeat the claim or demand, but as to
any other admissible matter which might have been offered for that purpose.' Cromwell
v. County ofSac, [J 352. The judgment puts an end to the cause of action, which cannot
again be brought into litigation between the parties upon any ground whatever, absent
fraud or some other factor invalidating the judgment.

C.1.R. v. Sunnen, 333 U.S. 591 (1948) (emphasis added).

The Fifth Circuit holds to similar views:

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 the
seconq suit is for a different cause of action, the right, question, or fact once so
determined must, as between the same parties or their privies, be taken as conclusively
established, so long as the judgment in the first suit remains unmodified ....
Accordingly, a case p,mding appeal is resjudicata and entitled to full faith and credit
unless and until reversed on appeal.

Comer v. Murphy Oil USA, Inc., 718 F.3d 460 (5th Cic.2013). In this case, the first proceedings were
on appeal when the Department filed the 2nd NTA.
(

All of the caselaw points to claim preclusion, where the litigants cannot raise the same cause of action in
order to relitigate a prior case that ended with a final judgment. In this case, the fact that the Department
is now asserting new allegations that they believe will support the prior cause of action, specifically,
removabiHty pursuant to section 237(a)(l)(C)(i), does not render resjudicata inapplicable. The
underlying actions that give rise to these new allegations are not, in fact, new and could have been
brought by the Department in the prior proceeding. As in any civil case, the proper course of action is to

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appeal the adverse decision or find a legal way to reopen or reconsider it, not to bring a new cause of
action to relitigate the same issues. The Department reserved its right to appeal the first proceedings and
failed to file that appeal.

To put this case in the simplest terms, the Department's actions are analogous to a plaintiff who files a
civil cause of action against his physician for medical malpractice. The plaintiff has the opportunity to
provide all of the known facts at trial and, if the court finds the physician not liable, the same plaintiff
cannot file a new action against the same physician for medical malpractice because he forgot or
neglected to offer all of the evidence or specific allegations in the first action. He can only bring a new
cause of action based on new evidence or a new claim that was not in existence or could not have been
known at the time of the first action.

ORDER{S)
Based upon the above, the following order(s) will enter:

ORDER: IT IS ORDERED that proceedings be terminated with prejudice, as they are barred by res
judicata and, in the alternative, as a procedural convenience.

Any appeal must b_ received by the Board of Immigration no later than March 20, 2017.
I.

D' Anna H. Freeman


Immigration Judge

f;-((, /17
Date