Roberto Calero v. Eric Holder, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A043-864-260. Copies to all parties and the agency. [999639627]. [15-1056]

Appeal: 15-1056

Doc: 18

Filed: 08/13/2015

Pg: 1 of 6

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1056

ROBERTO RAMON CALERO,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted:

July 30, 2015

Decided:

August 13, 2015

Before MOTZ, KING, and GREGORY, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Timothy R. Woods, BERLIN AND ASSOCIATES, P.A., Baltimore,
Maryland, for Petitioner.
Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, John S. Hogan, Assistant Director,
Ashley Martin, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 15-1056

Doc: 18

Filed: 08/13/2015

Pg: 2 of 6

PER CURIAM:
Roberto Ramon Calero, a native and citizen of Nicaragua,
petitions for review of an order of the Board of Immigration
Appeals

(“Board”)

dismissing

his

appeal

from

the

immigration

judge’s (“IJ”) order denying his motion to terminate his removal
proceedings and ordering him removed to Nicaragua.

We deny the

petition for review.
In 2006, Calero, then a lawful permanent resident of the
United States, was convicted in the Circuit Court for Montgomery
County, Maryland, of attempted robbery with a dangerous weapon,
in violation of Md. Code Ann., Crim. Law § 3-403 (LexisNexis
2012).

Calero was sentenced to 10 years’ imprisonment, with 6

years suspended.
took

place

in

Calero’s initial removal proceedings, which
San

Antonio,

Texas,

were

terminated

without

prejudice in January 2010.

Three years later, the Department of

Homeland

filed

Security

(“NTA”),

again

(“DHS”)
charging

a

Calero

second
with

Notice

to

Appear

removability

as

aggravated felon based on the same Maryland conviction.

an

See 8

U.S.C. § 1227(a)(2)(A)(iii) (2012).
Calero moved to terminate his removal proceedings, arguing
that

the

doctrines

of

res

judicata

and

collateral

estoppel

precluded the DHS from instituting a second round of removal
proceedings based on the Maryland conviction because it was the
basis

for

Calero’s

first

removal
2

proceedings,

which

were

Appeal: 15-1056

Doc: 18

Filed: 08/13/2015

Pg: 3 of 6

terminated without prejudice.

The immigration judge rejected

this argument, sustained the charge of removability, and ordered
Calero removed to Nicaragua.
analysis

of

the

issue

and

The Board agreed with the IJ’s
dismissed

Calero’s

appeal.

This

petition for review timely followed.
Pursuant

to

8

U.S.C.

§ 1252(a)(2)(C)

(2012),

we

lack

jurisdiction, except as provided in 8 U.S.C. § 1252(a)(2)(D)
(2012),

to

review

the

final

order

of

removal

of

an

alien

convicted of certain enumerated crimes, including an aggravated
felony.
review

Under

§

factual

1252(a)(2)(C),

determinations

we

that

retain

trigger

jurisdiction
the

“to

jurisdiction-

stripping provision, such as whether [Calero] [i]s an alien and
whether

[ ]he

has

been

convicted

of

an

aggravated

felony.”

Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002).

If we

are

then,

able

under

8

to

confirm

U.S.C.

“constitutional

§

these

two

factual

1252(a)(2)(C),

claims

or

(D),

questions

determinations,
we

of

may

only

law.”

consider
8

U.S.C.

§ 1252(a)(2)(D); see Turkson v. Holder, 667 F.3d 523, 526-27
(4th Cir. 2012).
We have jurisdiction to review Calero’s legal argument that
res

judicata

or

collateral

estoppel

foreclosed

pursuing a second round of removal proceedings.

the

DHS

from

See Johnson v.

Whitehead, 647 F.3d 120, 129-31 (4th Cir. 2011).

We review

legal issues de novo, “affording appropriate deference to the
3

Appeal: 15-1056

Doc: 18

Filed: 08/13/2015

Pg: 4 of 6

[Board]’s interpretation of the INA [Immigration and Nationality
Act] and any attendant regulations.”

Li Fang Lin v. Mukasey,

517 F.3d 685, 691-92 (4th Cir. 2008).
“Res judicata, or claim preclusion, bars the relitigation
of any claims that were or could have been raised in a prior
proceeding between the same parties.”
284, 287 (4th Cir. 2008).

Sartin v. Macik, 535 F.3d

Specifically, res judicata precludes

a later claim when three factors are present:

“(1) a final

judgment on the merits in a prior suit; (2) an identity of the
cause of action in both the earlier and the later suit; and
(3) an identity of parties or their privies in the two suits.”
Clodfelter v. Republic of Sudan, 720 F.3d 199, 210 (4th Cir.
2013)

(internal

quotation

marks

omitted).

“[C]ollateral

estoppel, or issue preclusion, . . . bars the relitigation of
specific

issues

that

were

actually

action.”

determined

in

a

prior

Sartin, 535 F.3d at 287.

Our review of the record confirms the Board’s affirmance of
the

IJ’s

conclusion

that

the

decision

to

terminate

Calero’s

first removal proceedings was not a decision on the merits that
was entitled to preclusive effect.
hearing
prejudice

makes
to

plain,
the

DHS’

this

As the transcript of that

termination

ability

to

decision

later

charge

was

without

Calero

with

removability on the same basis, but in a more accurately drafted
NTA.

The conclusion that such a termination is not entitled to
4

Appeal: 15-1056

Doc: 18

Filed: 08/13/2015

Pg: 5 of 6

preclusive effect is consistent with governing law.

See Cooter

& Gell v. Hartmax Corp., 496 U.S. 384, 396 (1990) (explaining
that, when a case is dismissed without prejudice, that dismissal
“does not operate as an adjudication upon the merits, and thus
does not have a res judicata effect” (alteration, citation, and
internal quotation marks omitted)); Mann v. Haigh, 120 F.3d 34,
36 (4th Cir. 1997) (quoting Cooter & Gell for same proposition).
We reach the same result in terms of Calero’s collateral
estoppel

argument.

Despite

his

suggestion

to

the

contrary,

Calero’s removability as an aggravated felon was not actually
resolved in the first removal proceedings.

See Ramsay v. INS,

14 F.3d 206, 210 (4th Cir. 1994) (recognizing that collateral
estoppel precludes only those issues that “have been actually
determined

and

necessarily

decided

in

prior

litigation”

(internal quotation marks omitted)).
Finally, we reject Calero’s contention that the DHS failed
to adhere to the proper administrative procedures by issuing a
second NTA in a different immigration court rather than pursuing
reopening in the first.

As the Board observed, the DHS has

broad discretion to determine whether to issue an NTA to an
alien.

See 8 C.F.R. § 239.1(a) (2015).

Given that the first

removal proceedings were terminated without prejudice, the DHS
acted well within its discretion to file a second NTA instead of
reopening the already terminated proceedings.
5

See Alvear-Velez

Appeal: 15-1056

Doc: 18

Filed: 08/13/2015

Pg: 6 of 6

v. Mukasey, 540 F.3d 672, 682 n.6 (7th Cir. 2008) (rejecting
similar

argument

because,

although

reopening

was

an

option,

“nothing in regulation section 1003.23(b)(1) suggests that this
was the immigration authorities’ only manner of proceeding”);
see also In re Avetisyan, 25 I. & N. Dec. 688, 695 (BIA 2012)
(explaining

the

difference

between

administrative

closure

of

proceedings and termination of proceedings and noting that, when
proceedings

have

been

terminated

and

there

is

no

successful

appeal of that ruling or a motion, “the DHS [would have] to file
another charging document to initiate new proceedings”).
For these reasons, we deny Calero’s petition for review.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

PETITION DENIED

6