27 I. & N. Dec. 178
BIA2017Background
- Respondent, a lawful permanent resident from Mexico, pleaded guilty to Michigan first-degree home invasion (Mich. Comp. Laws § 750.110a(2)) on Dec. 1, 2014 and was sentenced to 18 months–20 years.
- DHS first charged removability (Apr. 2015) as an aggravated felony "crime of violence" under INA § 101(a)(43)(F); IJ sustained the charge but proceedings were later terminated after the Sixth Circuit held 18 U.S.C. § 16(b) void for vagueness (Shuti).
- DHS then issued a new NTA (Sept. 2016) charging removability as an aggravated felony burglary under INA § 101(a)(43)(G) based on the same Michigan conviction.
- Respondent moved to terminate the second proceeding, arguing res judicata barred it and that the Michigan statute is divisible and not a categorical burglary.
- IJ denied termination and found the Michigan first-degree home invasion is categorically equivalent to generic burglary; BIA affirmed, holding res judicata did not bar the new proceeding and the offense is an aggravated felony burglary.
Issues
| Issue | Respondent's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether res judicata bars DHS from bringing a new removal proceeding based on the same conviction after prior proceeding was terminated | Res judicata bars a second proceeding because DHS could have alleged the burglary ground earlier (should-have-been-litigated) | Res judicata does not apply because the prior charge was different (crime of violence under §16(b)) and DHS may bring new, distinct grounds | Res judicata does not bar the second proceeding; different legal bases require different proof and flexibility is warranted given Congress’ interest in removing criminal aliens |
| Whether Michigan first-degree home invasion is a categorical burglary offense under INA § 101(a)(43)(G) | Statute is divisible and covers conduct (committing a crime while entering/leaving) outside Taylor’s generic burglary definition; respondent was convicted of the non-generic variant | The Michigan statute narrows rather than expands Taylor’s generic burglary; elements fit generic burglary including "remaining in" theory | Home invasion in the first degree under Mich. Comp. Laws § 750.110a(2) is a categorical burglary offense and thus an aggravated felony under § 101(a)(43)(G) |
Key Cases Cited
- Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th Cir. 2007) (held res judicata barred Government from issuing a second NTA based on conviction it could have raised earlier)
- Channer v. Dep’t of Homeland Sec., 527 F.3d 275 (2d Cir. 2008) (administrative res judicata analyses focus on whether actions involve the same "nucleus of operative fact")
- Taylor v. United States, 495 U.S. 575 (1990) (defines generic burglary as unlawful entry or remaining in a structure with intent to commit a crime)
- Shuti v. Lynch, 828 F.3d 440 (6th Cir. 2016) (held 18 U.S.C. § 16(b) unconstitutionally vague)
- United States v. Quarles, 850 F.3d 836 (6th Cir. 2017) (held Michigan third-degree home invasion categorically equivalent to generic burglary)
- Duhaney v. U.S. Att’y Gen., 621 F.3d 340 (3d Cir. 2010) (declined to follow Bravo-Pedroza; emphasized flexibility in applying res judicata in immigration criminal removals)