                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-1056


ROBERTO RAMON CALERO,

                Petitioner,

          v.

LORETTA E. LYNCH, Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Submitted:   July 30, 2015                  Decided:   August 13, 2015


Before MOTZ, KING, and GREGORY, Circuit Judges.


Petition denied by unpublished per curiam opinion.


Timothy R. Woods, BERLIN AND ASSOCIATES, P.A., Baltimore,
Maryland, for Petitioner.   Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, John S. Hogan, Assistant Director,
Ashley Martin, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Roberto Ramon Calero, a native and citizen of Nicaragua,

petitions for review of an order of the Board of Immigration

Appeals    (“Board”)      dismissing       his    appeal      from   the   immigration

judge’s (“IJ”) order denying his motion to terminate his removal

proceedings and ordering him removed to Nicaragua.                         We deny the

petition for review.

       In 2006, Calero, then a lawful permanent resident of the

United States, was convicted in the Circuit Court for Montgomery

County, Maryland, of attempted robbery with a dangerous weapon,

in violation of Md. Code Ann., Crim. Law § 3-403 (LexisNexis

2012).     Calero was sentenced to 10 years’ imprisonment, with 6

years suspended.          Calero’s initial removal proceedings, which

took    place     in    San   Antonio,      Texas,      were    terminated       without

prejudice in January 2010.               Three years later, the Department of

Homeland      Security      (“DHS”)      filed    a    second    Notice     to     Appear

(“NTA”),        again    charging        Calero       with    removability        as     an

aggravated felon based on the same Maryland conviction.                            See 8

U.S.C. § 1227(a)(2)(A)(iii) (2012).

       Calero moved to terminate his removal proceedings, arguing

that    the     doctrines     of   res    judicata      and     collateral       estoppel

precluded the DHS from instituting a second round of removal

proceedings based on the Maryland conviction because it was the

basis     for     Calero’s     first      removal       proceedings,       which       were

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terminated without prejudice.                         The immigration judge rejected

this argument, sustained the charge of removability, and ordered

Calero removed to Nicaragua.                      The Board agreed with the IJ’s

analysis     of    the     issue          and   dismissed      Calero’s         appeal.           This

petition for review timely followed.

      Pursuant       to        8    U.S.C.      § 1252(a)(2)(C)           (2012),          we     lack

jurisdiction, except as provided in 8 U.S.C. § 1252(a)(2)(D)

(2012),      to    review          the    final   order       of    removal      of    an        alien

convicted of certain enumerated crimes, including an aggravated

felony.       Under       §        1252(a)(2)(C),       we    retain       jurisdiction            “to

review    factual         determinations          that     trigger        the    jurisdiction-

stripping provision, such as whether [Calero] [i]s an alien and

whether      [ ]he    has          been    convicted     of    an       aggravated         felony.”

Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002).                                        If we

are   able    to     confirm         these      two    factual      determinations,              then,

under    8   U.S.C.        §       1252(a)(2)(C),       (D),       we    may    only       consider

“constitutional           claims          or    questions          of   law.”          8        U.S.C.

§ 1252(a)(2)(D); see Turkson v. Holder, 667 F.3d 523, 526-27

(4th Cir. 2012).

      We have jurisdiction to review Calero’s legal argument that

res   judicata       or    collateral           estoppel      foreclosed         the   DHS        from

pursuing a second round of removal proceedings.                                 See Johnson v.

Whitehead, 647 F.3d 120, 129-31 (4th Cir. 2011).                                       We review

legal issues de novo, “affording appropriate deference to the

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[Board]’s interpretation of the INA [Immigration and Nationality

Act] and any attendant regulations.”                       Li Fang Lin v. Mukasey,

517 F.3d 685, 691-92 (4th Cir. 2008).

       “Res judicata, or claim preclusion, bars the relitigation

of any claims that were or could have been raised in a prior

proceeding between the same parties.”                     Sartin v. Macik, 535 F.3d

284, 287 (4th Cir. 2008).                  Specifically, res judicata precludes

a later claim when three factors are present:                              “(1) a final

judgment on the merits in a prior suit; (2) an identity of the

cause of action in both the earlier and the later suit; and

(3) an identity of parties or their privies in the two suits.”

Clodfelter v. Republic of Sudan, 720 F.3d 199, 210 (4th Cir.

2013)     (internal         quotation        marks       omitted).         “[C]ollateral

estoppel, or issue preclusion, . . . bars the relitigation of

specific       issues       that     were    actually      determined      in     a    prior

action.”       Sartin, 535 F.3d at 287.

       Our review of the record confirms the Board’s affirmance of

the    IJ’s    conclusion          that   the   decision     to    terminate      Calero’s

first removal proceedings was not a decision on the merits that

was entitled to preclusive effect.                       As the transcript of that

hearing       makes    plain,       this    termination       decision      was       without

prejudice      to     the    DHS’     ability       to   later    charge    Calero       with

removability on the same basis, but in a more accurately drafted

NTA.    The conclusion that such a termination is not entitled to

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preclusive effect is consistent with governing law.              See Cooter

& Gell v. Hartmax Corp., 496 U.S. 384, 396 (1990) (explaining

that, when a case is dismissed without prejudice, that dismissal

“does not operate as an adjudication upon the merits, and thus

does not have a res judicata effect” (alteration, citation, and

internal quotation marks omitted)); Mann v. Haigh, 120 F.3d 34,

36 (4th Cir. 1997) (quoting Cooter & Gell for same proposition).

     We reach the same result in terms of Calero’s collateral

estoppel    argument.   Despite   his   suggestion    to   the    contrary,

Calero’s removability as an aggravated felon was not actually

resolved in the first removal proceedings.           See Ramsay v. INS,

14 F.3d 206, 210 (4th Cir. 1994) (recognizing that collateral

estoppel precludes only those issues that “have been actually

determined    and   necessarily   decided    in      prior   litigation”

(internal quotation marks omitted)).

     Finally, we reject Calero’s contention that the DHS failed

to adhere to the proper administrative procedures by issuing a

second NTA in a different immigration court rather than pursuing

reopening in the first.      As the Board observed, the DHS has

broad discretion to determine whether to issue an NTA to an

alien.     See 8 C.F.R. § 239.1(a) (2015).        Given that the first

removal proceedings were terminated without prejudice, the DHS

acted well within its discretion to file a second NTA instead of

reopening the already terminated proceedings.          See Alvear-Velez

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v. Mukasey, 540 F.3d 672, 682 n.6 (7th Cir. 2008) (rejecting

similar   argument      because,    although    reopening      was       an   option,

“nothing in regulation section 1003.23(b)(1) suggests that this

was the immigration authorities’ only manner of proceeding”);

see also In re Avetisyan, 25 I. & N. Dec. 688, 695 (BIA 2012)

(explaining     the    difference   between     administrative           closure   of

proceedings and termination of proceedings and noting that, when

proceedings     have    been   terminated    and   there      is    no   successful

appeal of that ruling or a motion, “the DHS [would have] to file

another charging document to initiate new proceedings”).

      For these reasons, we deny Calero’s petition for review.

We   dispense   with    oral   argument     because     the   facts       and   legal

contentions     are    adequately   presented      in   the   materials         before

this court and argument would not aid the decisional process.



                                                                   PETITION DENIED




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