Shepherd v. Holder, Jr., No. 11-9520 (10th Cir. 2012)
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This case was about the government’s repeated efforts to remove Petitioner Kairi Abha Shepherd from the United States on the ground she is a criminal alien. In the initial removal proceeding, the government did not effectively contest Petitioner's claim to automatic citizenship under the Child Citizenship Act of 2000 (CCA), and the Immigration Judge (IJ) dismissed for lack of jurisdiction. The next day, the government initiated a new removal proceeding, explaining to the same IJ that it had made a mistake and now realized that Petitioner was too old to qualify under the CCA for citizenship. The IJ eventually decided that his initial ruling precluded the government from relitigating Petitioner's citizenship or alienage status, and he terminated the proceeding. The government successfully appealed to the Board of Immigration Appeals (BIA), which held that collateral estoppel did not apply and remanded to the IJ, who ordered removal. Petitioner then appealed to the Tenth Circuit for review. Upon review, the Court found that Petitioner's alien status precluded the Court's jurisdiction: "[Petitioner's] issue preclusion argument based on the IJ’s first decision is unavailing because administrative collateral estoppel does not apply to our sec. 1252(b)(5) analysis." Accordingly, the Court dismissed her petition for review.
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