                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 20 2014

                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

ROMAN RESURRECCION,                              No. 10-73708

              Petitioner,                        Agency No. A044-205-394

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                        Argued and Submitted April 8, 2014
                            San Francisco, California

Before: SCHROEDER, LIPEZ**, and CALLAHAN, Circuit Judges.

       Roman Resurreccion, a native and citizen of the Phillippines, challenges a

decision of the Board of Immigration Appeals (“BIA”) finding him removable as an

aggravated felon. See 8 U.S.C. § 1227(a)(2)(A)(iii). Petitioner Resurreccion claims

that the doctrine of res judicata barred the resumption of his deportation proceedings

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
              The Honorable Kermit V. Lipez of the United States Court of Appeals
for the First Circuit, sitting by designation.
after an Immigration Judge ("IJ") entered a termination order, and he asserts that the

subsequently entered removal order must therefore be vacated.

      Petitioner's argument is unavailing. The IJ ordered proceedings terminated on

February 3, 2009. That order was not yet final when the Department of Homeland

Security filed new charges two days later, on February 5, because the agency had

reserved its right to appeal, and it had thirty days to decide whether to do so. See 8

C.F.R. § 1003.39 (stating that, "[e]xcept when certified to the Board, the decision of

the Immigration Judge becomes final upon waiver of appeal or upon expiration of the

time to appeal if no appeal is taken[,] whichever occurs first"). As noted by the BIA,

an agency regulation permits additional charges to be brought at "any time" during

deportation or removal proceedings. 8 C.F.R. § 1003.30.*** The Board's view that

"any time" includes the period during which a party is contemplating whether to move

forward with a reserved appeal is not unreasonable and, hence, is entitled to our

deference. See Lezama-Garcia v. Holder, 666 F.3d 518, 525 (9th Cir. 2011). Because

the charges at issue here were thus brought "during the pendency of immigration




      ***
          We recognize that the February 5 charges were alleged in a new Notice to
Appear ("NTA") rather than in a Form I-261, which would have been the proper
way to add additional charges to preexisting proceedings. In the circumstances of
this case, we decline to second guess the BIA's decision to allow the charges to be
filed through an NTA.

                                          2
proceedings," Bravo-Pedroza v. Gonzales, 475 F.3d 1358, 1360 (9th Cir. 2007)

(emphasis omitted), they were not barred by res judicata.

      The petition is therefore DENIED.




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