The doctrine of res judicata precludes a second suit on the same issue between the same parties when there has been a valid and final judgment on the issue. Semptek Intl , Inc. v. Lockheed Martin Corp., 531 U.S. 497, 502 (2001). The Supreme Court has stated that when an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, "the doctrine of res judicata may apply." United States v. Utah Constr. & Min. Co., 384 U.S. 394, 422 (1966). The lower federal courts consider it well settled that res judicata is applicable in an administrative proceeding, and have held that res judicata applies in immigration hearings. Hibbert v. I.N.S., 554 F. 2d 17, 20 (2d. Cir. 1977); see also, Amato v. Bowen, 739 F. Supp. 108 (E.D.N.Y. 1990)(giving res judicata effect to a Social Security Administration determination).



The Second Circuit Court of Appeals considered the applicability of res judicata in a case where a respondent successfully obtained a vacatur pursuant to NYCPL 440, and the government sought to reopen removal proceedings to file an I-261 and charge him with new criminal grounds of removal. Johnson v. Ashcroft, 378 F. 3d 164 (2d 2004). The Court of Appeals first concludes that the government had been aware or could have been aware of all of the respondents criminal convictions, and then held that the government cannot prevail on a motion to reopen if it does not present new and previously unavailable evidence. In a lengthy footnote, the Court recognizes that res judicata may apply if new immigration proceedings were commenced against the respondent. Id. at fn. 10. The Court cites Interoceanic Corp. v. Sound Pilots, Inc., 107 F.3d 86, 90 (2d Cir 1977), and states that, "in a civil suit a litigant must advance all available evidence and legal arguments relating to a claim or controversy in the context of a single proceeding" because res judicata bars future litigation of all claims that could have been advanced in support of a previously adjudicated cause of action. (Thanks to listserve member kind enough to share this memo whose name we did not preserve.)