Odulene Dormescar v. U.S. Attorney General, 690 F.3d 1258

Dormescar, a Haitian native and longtime lawful permanent resident since 1998, faced removal after a 2007 aggravated‑felony counterfeiting conviction.
A 2006 notice to appear charged him as an arriving alien inadmissible for a 1992 cocaine conviction and 1990/1992 moral turpitude offenses.
Dormescar was convicted in 2007 of uttering and possessing a counterfeited security, but the 2006 notice to appear was not amended to include this conviction at that time.
Dormescar I (Board decision) terminated the removal proceedings, holding the 2007 conviction could not support removability since it wasn’t charged, and the Department’s remand motion was denied.
Dormescar II reopened proceedings with a new notice charging inadmissibility based on the 2007 counterfeiting conviction; the Board remanded to allow the Department to amend, and treated Dormescar as not barred by res judicata.
Dormescar IV (Board) ultimately dismissed the petition, affirming the Department’s authority to amend the notice to appear to charge Dormescar as admitted but removable, and denying relief on res judicata grounds.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court has jurisdiction to review the final removal order in light of aggravated felony removal.	Dormescar—claims jurisdiction under 8 U.S.C. §1252(a)(2)(D) for questions of law.	The INA precludes review of final removal orders based on aggravated felonies, with limited exceptions for questions of law.	Yes, jurisdiction exists for questions of law.
Whether res judicata bars the subsequent removal proceedings after Dormescar I.	Dormescar argues Dormescar I’s final judgment on the merits bars later proceedings.	The later proceedings involve a different basis for removability not barred by res judicata.	Res judicata does not bar the subsequent proceedings under the facts presented.
Whether the Department had authority to amend the notice to appear to change designation from arriving to admitted but removable.	Dormescar contends designation change is not an amendable factual/charges matter.	Regulations authorize amendments of charges/facts and allow remand to amend designation.	Yes, the Department had authority to amend the notice to appear to admit Dormescar but removable.
Whether the Board properly remanded and whether res judicata applies to the Dormescar II/III/IV sequence.	Dormescar asserts the remand and res judicata rulings were improper.	Board properly remanded and held res judicata not applicable to the later proceedings.	Board’s remand and res judicata rulings were affirmed.

Singh v. U.S. Att’y Gen., 561 F.3d 1275 (11th Cir. 2009) (res judicata considerations in removal context)
Maldonado v. U.S. Att’y Gen., 664 F.3d 1369 (11th Cir. 2011) (flexible application of res judicata in agency removal proceedings)
Cruz-Miguel v. Holder, 650 F.3d 189 (2d Cir. 2011) (distinction between admission and removal charges in removal proceedings)
Jama v. Immigration and Customs Enforcement, 543 U.S. 335 (2005) (removal procedure framework; admission vs removal grounds)
Vartelas v. Holder, 132 S. Ct. 1479 (2012) (impact of IIRIRA on LPRs returning from abroad and inadmissibility/removability)
Judulang v. Holder, 565 U.S. _ (2011) (role of removal process standards and administrative finality)