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The Fourth Circuit Allows DHS to Recharge Removability on Same Grounds after Proceedings Terminated Without Prejudice 

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Fourth Circuit

On August 13, the U.S. Court of Appeals for the Fourth Circuit ruled that the Department of Homeland Security (“DHS”)’s termination without prejudice of removal proceedings based on respondent’s conviction of an aggravated felony, do not preclude the government from charging respondent with removability again in the future, based on the same conviction.

In Calero v. Lynch (4th Cir., 2015) the respondent had been convicted of attempted robbery with a dangerous weapon by the Circuit Court of Montgomery County, Maryland and was sentenced to ten years imprisonment.  Calero’s initial removal proceedings took place in San Antonio, Texas and were terminated without prejudice by the DHS in 2010.  Three years later, the DHS filed a second Notice to Appear, charging the respondent with removability as an aggravated felon based on the same Maryland conviction.

Calero moved to terminate this second removal proceeding on grounds of res judicata and collateral estoppel doctrines.  The respondent contested that under these doctrines the DHS is precluded from instituting an additional removal proceeding on the same grounds after the termination of the initial proceedings.  The Court denied Calero’s motion and ordered him removed to Nicaragua.

The Court reasoned that a ruling precludes a later claim when it is a final judgement on the merits. Clodfelter v. Republic of Sudan, 720 F.3d 199, 210 (4th Cir. 2013).  The removal proceeding was not found by the Court to be a decision on the merits that was entitled to preclusive effect.  Therefore, allowing the DHS to recharge removability on the same grounds of a prior terminated removal proceeding.

 

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