Immigration Hearings: Double Jeopardy

In the United States, there are a couple legal concepts called - res judicata and collateral estoppel - that prevent identical cases from being disputed in the courts more than once. In immigration proceedings, this means that if the government brings a case against an alien in attempt to remove him or her from the country, and if the government loses that case, then the government cannot repeat those removal proceedings in an effort to get a different result.

Res Judicata and Collateral Estoppel

Res judicata is a Latin phrase that translates as "a matter [already] judged." It means that once a final decision has been reached in a case, then that case cannot be re-tried. This is similar to the concept of double jeopardy, and goes hand-in-hand with the Fifth Amendment to the US Constitution, which says that "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."

Collateral estoppel means that once a final judgment has been reached in a case, then those same issues cannot be raised again in a lawsuit by the same parties. In other words, once after judgment has been reached in a case, and after all subsequent appeals have been exhausted, then if an identical or near identical case is brought before the courts, the case must be dismissed.

Neither res judicata or collateral estoppel prevent new cases from being litigated if the facts change, the issues change or the parties to the case are different.

What Does This Mean for Immigration Proceedings?

Courts have ruled that the doctrines of res judicata and collateral estoppel also apply to immigration proceedings. If the government initiates removal proceedings against an alien, and the government loses the case, then the government cannot initiate a new round of removal proceedings using the same set of facts, or facts that the government was aware of during the first removal proceedings, but chose not to use.

However, if the government tries again to remove an alien based on new facts that were previously unknown, that case would be allowed to proceed.

For example, if an alien has been found guilty of a crime, then the government will try to have the alien deported from the country. If the government loses the case, and the alien is permitted to stay in the United States, then the government cannot later try again to remove the alien because of the same criminal conviction. However, if the alien is later convicted of another crime, the government would be able to start new removal proceedings against the alien because the facts of the case have changed.

Questions for Your Attorney

If you receive a Notice to Appear at removal proceedings, a lawyer will be able to help defend you before the immigration judge.

Among the questions to consider asking your attorney are:

  • Have you previously handled cases similar to mine?
  • How much do you charge for your services?
  • What kind of experience do you have handling immigration matters?
  • What is the likelihood of success in my case?
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