It is undisputed that in the jurisdiction of the United States Court of Appeals for the Ninth Circuit as elsewhere, res judicata applies in immigration proceedings. The criteria for the application of res judicata are that there be a final judgment, rendered on the merits in a separate action. Res judicata bars the government from bringing a second case based on evidence that it could have presented in the first case.
Where the prior removal proceedings were dismissed in response to the respondent's unopposed motion to terminate contending that the sole charge of removability in the previous Notice to Appear was not supported by the facts alleged therein, the Board finds no legal authority or persuasive factual circumstances in the instant case to support the proposition presented in the Immigration Judge's decision that such a dismissal should be deemed "without prejudice" in the absence of an explicit determination regarding an alien's removability, particularly when there is no question that the Immigration Judge's dismissal of the prior proceedings is a final judgment in a separate action, and when the respondent’s conviction was extant for over 9 months during the prior removal proceedings such that it could have been alleged as a factual predicate for a removal charge at that time.
Therefore, the Board reverses the Immigration Judge's determination and finds the previous dismissal order, which does not state otherwise, to be a decision "on the merits." Furthermore, the Board agrees with the respondent that under the law of the Ninth Circuit, within whose jurisdiction this case arises, res judicata precludes DHS from pursuing the sole charge filed in the current proceedings, which is predicated on a conviction extant during prior proceedings that were dismissed as a result of the respondent's unopposed motion to terminate. The appeal will be sustained and removal proceedings will be terminated.
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