Tuesday, June 01, 2010

Daramy (Not Precedential): BIA Improperly Invoked Law Of The Case Doctrine And Erred On The Asylum One-Year Rule

Daramy v. Holder
No. 08-2537
Not Precedential
February 8, 2010

Overturning the BIA and IJ Mirlande Tadal

Judges Scirica, Barry, and Smith. Opinion by Chief Judge Scirica.

The BIA and IJ Tadal both erroneously applied the law of the case doctrine to someone based on rulings in a different case. The law of the case doctrine only applies where it is a later stage of the same case. Here, there was a separate case, not the same case. Even though it involved the same person, it was a second, independent case. The first one started with a Notice to Appear in December 2004 and the new second case started with a Notice to Appear in July 2007.

The Third Circuit notes that res judicata, claim preclusion, and issue preclusion apply in immigration proceedings, citing Duvall v. Att'y Gen., 436 F.3d 382, 386-90 (3d Cir. 2006) and other cases. But res judicata and claim preclusion are not the same as the doctrine of law of the case.

In addition, IJ Tadal and the BIA erred about how to apply the one-year deadline for filing asylum claims. Since the IJ and BIA made their rulings, the BIA clarified the rule in In re F-P-R, 24 I&N Dec. 681 (BIA 2008) that the one year deadline for filing from the last arrival means the arrival just before the person applied, not an earlier arrival.


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