13‐2203‐ag Abbas v. Holder BIA

Rocco, IJ A078 389 008

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 10th day of July, two thousand fourteen.

PRESENT: RALPH K. WINTER, PIERRE N. LEVAL, DENNY CHIN, Circuit Judges.

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NAVID ABBAS, Petitioner,

v. 13‐2203‐ag

ERIC H. HOLDER, JR., United States Attorney General, Respondent.

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FOR RESPONDENT: NICOLE R. PRAIRIE, Trial Attorney (Stuart F. Delery, Assistant Attorney General; Edward J. Duffy, Senior Litigation Counsel, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (ʺBIAʺ) decision, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioner Navid Abbas, a native and citizen of Pakistan, seeks review of a

May 8, 2013 decision of the BIA affirming the July 15, 2011 decision of Immigration

Judge (ʺIJʺ) Michael Rocco, ordering Abbas removed from the United States. In re Navid

Abbas, No. A078 389 008 (B.I.A. May 8, 2013), affʹg No. A078 389 008 (Immig. Ct. Buffalo

July 15, 2011). We assume the partiesʹ familiarity with the underlying facts and

procedural history in this case.

The only issue before us is whether the doctrine of res judicata barred the

initiation of removal proceedings against Abbas based on the IJʹs termination of

rescission proceedings in 2008, when the IJ granted Abbasʹs unopposed motion to

terminate the rescission proceedings for failure of proof of timely service.

Under the circumstances of this case, we review the decision of the IJ as

supplemented by the BIA. See Yan Chen v. Gonzales,

(2d Cir. 2005). We

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review decisions regarding the application of the doctrine of res judicata de novo. See

Channer v. Depʹt of Homeland Sec.,

(2d Cir. 2008).

ʺThe preclusive effect of a judgment is defined by claim preclusion and

issue preclusion, which are collectively referred to as ʹres judicata.ʹʺ Taylor v. Sturgell,

(2008). The doctrine of claim preclusion ʺforecloses successive

litigation of the very same claim, whether or not relitigation of the claim raises the same

issues as the earlier suit.ʺ

(internal quotation marks omitted). The related doctrine

of issue preclusion ʺbars successive litigation of an issue of fact or law actually litigated

and resolved in a valid court determination essential to the prior judgment.ʺ

(internal quotation marks omitted). ʺ[O]nce a court has decided an issue of fact or law

necessary to its judgment, that decision may preclude relitigation of the issue in a suit

on a different cause of action involving a party to the first case.ʺ Allen v. McCurry,

(1980); see also Balderman v. U.S. Veterans Admin.,

(2d Cir.

1989); In re Fedorenko,

(B.I.A. 1984). Claim preclusion applies only

if the first proceeding resulted in a final judgment on the merits. Allen,

.

Issue preclusion applies only to issues that were actually litigated and decided in the

prior proceeding. Marvel Characters, Inc. v. Simon,

(2d Cir. 2002).

The rules of preclusion did not bar the initiation of removal proceedings

against Abbas. The issues and facts underlying both Abbasʹs rescission and removal

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proceedings were the same ‐‐ his inadmissibility based on his misrepresentation of U.S.

citizenship in his passport application and his failure to disclose facts related to his

inadmissibility in applying to adjust status. In Abbasʹs first proceeding, however, the IJ

did not decide whether Abbas was inadmissible. Rather, the IJ granted Abbasʹs

unopposed motion to terminate rescission proceedings on the procedural ground that

the government failed to demonstrate timely service of its Notice of Intent to Rescind.

As the prior proceeding neither resulted in a final judgment on the merits, nor

adjudicated the issue of Abbasʹs inadmissibility, the government was not precluded

from either initiating these removal proceedings or reasserting Abbasʹs inadmissibility.

For the foregoing reasons, the petition for review is DENIED.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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