Wednesday, June 20th, 2018

Unpub. BIA Res Judicata Victory: Gaytan-Castro

"We agree with the Immigration Judge that the present removal proceedings are barred under the doctrine of res judicata even if the respondent was erroneously granted adjustment of status in the prior proceedings. … Although the instant proceedings are based on a different charge of removability than the prior proceedings, the central question underlying the charge is the same as that which was decided in the prior proceedings, viz. whether the respondent was eligible for adjustment ofstatus pursuant to his father's visa petition. Because the central issue and the nucleus of facts relevant to that issue are the same now as then, the decision in the prior proceedings has res judicata effect here. The DHS had recourse from what may have been an erroneous grant of adjustment of status via appeal or timely motion to reopen and rescind. The fact that it did not avail itself of those avenues of relief precludes it from avoiding the application of res judicata now." –