Preclusion of Exclusion: How Many Bites Does DHS Get at the Deportation Apple?

by Christine M. Mullen

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Abstract

The common law doctrine of res judicata prevents parties from relitigating claims that were, or could have been, litigated in a previous proceeding. In the background of all civil law, the doctrine has been regularly applied to executive agency adjudications. However, recent developments have highlighted a circuit split and tension between the branches of government, as different adjudicative bodies have come to differing conclusions on whether, and to what extent, res judicata applies in removal proceedings.

This Note argues that res judicata should apply broadly and uniformly in removal proceedings, limiting the Department of Homeland Security (“DHS”) to only one bite at the deportation apple. The text and structure of the Immigration and Nationality Act, as well as its judicial interpretations and the regulations created to enforce it, command this result. Furthermore, the principles of fairness, reliance, and efficiency that drive res judicata are especially salient as immigrant defendants face unique challenges while the U.S. immigration system becomes increasingly overburdened. This Note concludes with a survey of the available avenues to reach a uniform application of the doctrine and to provide much needed clarity for the adjudicators applying the law, the lawyers on both sides, and the noncitizens facing one of the most severe penalties—deportation.

Preclusion of Exclusion: How Many Bites Does DHS Get at the Deportation Apple?

by Christine M. Mullen

Click here for a PDF file of this article

Abstract

The common law doctrine of res judicata prevents parties from relitigating claims that were, or could have been, litigated in a previous proceeding. In the background of all civil law, the doctrine has been regularly applied to executive agency adjudications. However, recent developments have highlighted a circuit split and tension between the branches of government, as different adjudicative bodies have come to differing conclusions on whether, and to what extent, res judicata applies in removal proceedings.

This Note argues that res judicata should apply broadly and uniformly in removal proceedings, limiting the Department of Homeland Security (“DHS”) to only one bite at the deportation apple. The text and structure of the Immigration and Nationality Act, as well as its judicial interpretations and the regulations created to enforce it, command this result. Furthermore, the principles of fairness, reliance, and efficiency that drive res judicata are especially salient as immigrant defendants face unique challenges while the U.S. immigration system becomes increasingly overburdened. This Note concludes with a survey of the available avenues to reach a uniform application of the doctrine and to provide much needed clarity for the adjudicators applying the law, the lawyers on both sides, and the noncitizens facing one of the most severe penalties—deportation.