Matter of Ramon JASSO ARANGURE, Respondent
U.S. Dеpartment of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided December 29, 2017
27 I&N Dec. 178 (BIA 2017)
Interim Decision #3910
(2) Home invasion in the first degree in violation of
FOR RESPONDENT: Russell R. Abrutyn, Esquire, Berkley, Michigan
FOR THE DEPARTMENT OF HOMELAND SECURITY: Sarah Shilvock, Assistant Chief Counsel
BEFORE: Board Panel: PAULEY, MALPHRUS, and CREPPY, Board Members.
PAULEY, Board Member:
In a decision dated December 6, 2016, an Immigration Judge found the respondent removable under
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who was admitted to the United States as a lawful permanent resident on March 17, 2003. The record reflects that on December 1, 2014, he was convicted on a plea of guilty to
The Department of Homeland Security (“DHS“) issued a notice to appear on April 21, 2015, charging the respondent with removability as an alien convicted of an aggravated felony crime of violence under
In a decision dated July 26, 2016, we remanded the record to the Immigration Judge in light of an intervening decision of the United States Court of Appeals for the Sixth Circuit, in whose jurisdiction this case arises, in Shuti v. Lynch, 828 F.3d 440 (6th Cir. 2016), which declared
The DHS issued а second notice to appear on September 15, 2016, charging the respondent with removability as an alien convicted of an aggravated felony burglary offense under
In his December 1, 2016, decision, the Immigration Judge denied the motion to terminate and determined that the respondent‘s conviction was for
The respondent argues on appеal that the Immigration Judge erred in finding that these proceedings are not barred by the doctrine of res judicata. In response, the DHS contends that res judicata does not apply because the original charge was that the respondent‘s conviction is for a crime of violence aggravated felony under
The respondent also asserts that his offense is not a categorical aggravated felony under
II. ANALYSIS
A. Res Judicata
Res judicata is a common law principle that provides that “a final judgment on the merits bars a subsequent action between the same parties over the same cause of action.” Channer v. Dep‘t of Homeland Sec., 527 F.3d 275, 279 (2d Cir. 2008) (citing Semtek Int‘l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 502 (2001)); see also Winget v. JP Morgan Chase Bank, N.A., 537 F.3d 565, 577−78 (6th Cir. 2008). Under res judicata, a subsequent cause of action is barred by an earlier one if it “involves the same ‘claim’ or—‘nucleus of operative fact‘—as the first.” Channer, 527 F.3d at 280 (quoting Waldman v. Vill. of Kiryas Joel, 207 F.3d 105, 108 (2d Cir. 2000)); see also Alvear-Velez v. Mukasey, 540 F.3d 672, 677 (7th Cir. 2008) (noting that “a cause of action consists of ‘a core of operative facts which give rise to a remedy‘” (citation omitted)). According to the Supreme Court, the rationale undergirding the doctrine of res judicata is threefold: it limits “the
Res judicata may also apply in the context of administrative law. Astoria Fed. Sav. and Loan Ass‘n v. Solimino, 501 U.S. 104, 107 (1991). Many of the circuit courts that have considered the application of res judicata in administrative proceedings have determined, however, that the doctrine applies more flexibly in that context than it does in judicial proceedings. See Artukovic v. INS, 693 F.2d 894, 898 (9th Cir. 1982) (“[I]n the administrative law context, the prinсiples of . . . res judicata are applied flexibly.“); see also, e.g., Maldonado v. U.S. Att‘y Gen., 664 F.3d 1369, 1377−78 (11th Cir. 2011); Johnson v. Whitehead, 647 F.3d 120, 128−29 (4th Cir. 2011); Alvear-Velez, 540 F.3d at 677; Quiñones Candelario v. Postmaster Gen. of U.S., 906 F.2d 798, 801 (1st Cir. 1990); Facchiano v. U.S. Dep‘t of Labor, 859 F.2d 1163, 1167 (3d Cir. 1988); United States v. Smith, 482 F.2d 1120, 1123 (8th Cir. 1973). The Sixth Circuit agrees with this view. See Parker v. Califano, 644 F.2d 1199, 1202 (6th Cir. 1981) (“[A]dministrative res judicata . . . is applied with less rigidity than its judicial counterpart.“).5
In the prior proceedings in this case, the respondent admitted the factual allegations of the initial notice to appear, and the Immigration Judge sustained the charge that the respondent‘s conviction was for an aggravated felony crime of violence under
Although both of the proceedings brought against the respondent are based on the same conviction and the same charge of removability under
Moreover, a crime of violence was the most appropriate charge under the law at the time proceedings against the respondent were first commenced. In the initial proceedings, the Immigration Judge properly sustained the charge of removability predicated on his determination that, under the applicable precedent at the time, the respondent‘s offense was a crime of violence as defined by
Whether a particular offense is an aggravated felony is a legal determination affected by complex laws that are in constant flux, as illustrated by the effect of the Sixth Circuit‘s decision in Shuti on this case. Often, the DHS must determine which causes of action to bring against an alien, based only on preliminary information available when proceedings are initiated. To require the DHS to anticipate every possible turn of events and charge an alien with all conceivable grounds of removability would not provide the judicial economy that is a fundamental goal of res judicata. See Duhaney v. U.S. Att‘y Gen., 621 F.3d 340, 350−51 (3d Cir. 2010); Yong Wong Park v. Att‘y Gen. of U.S., 472 F.3d 66, 73 (3d Cir. 2006) (stating that requiring the DHS to present every possible basis for removability in the notice to appear “would needlessly complicate proceedings in the vast majority of cases” (citation omitted)).
Furthermore, it is not practical to require the DHS to present all possible bases for removal in a single proceeding. For example, the DHS would have to dеtermine which charges might reasonably lie and to present proof of each, even when there is no reason to foresee that one charge may not succeed. Additionally, Immigration Judges would need to rule on multiple, redundant charges. Such a requirement would further burden the already backlogged immigration system. See Grose v. Cohen, 406 F.2d 823, 824−25 (4th Cir. 1969) (stating that “practical reasons may exist for refusing to apply” res judicata in administrative proceedings).
The DHS has broad discretion in determining whether to initiate proceedings and which charges of removability to bring. See Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520, 523 (BIA 2011). This is especially true in the context of aggravated felony grounds of removability, where the societal interest in removing criminal aliens is strongest. In that regard, we note that the Supreme Court has stated that the rules of preclusion should “apply except ‘when a statutory рurpose to the contrary is evident.‘” Astoria, 501 U.S. at 108 (emphasis added) (citations omitted). Accordingly, we consider the removal of aliens who have committed aggravated felonies to be a special concern that merits an even greater degree of flexibility and forbearance in the application of the res judicata doctrine.
Because of “Congress’ clear and emphatic position with respect to” aliens convicted of aggravated felonies and other criminal offenses, several courts of appeals have indicated that res judicata may not even apply in the specific context of their removal.6 Channer, 527 F.3d at 280 n.4 (stating that aliens convicted of aggravated felonies “fall[] into the category of aliens whom Congress repeatedly and unambiguously has sought to remove” аnd noting that res judicata “should not be applied so as to frustrate clearly expressed congressional intent“); see also Dormescar v. U.S. Att‘y Gen., 690 F.3d 1258, 1268 & n.10 (11th Cir. 2012); Johnson, 647 F.3d at 130−31; Duhaney, 621 F.3d at 348 n.4; cf. Duvall v. Att‘y Gen. of U.S., 436 F.3d 382, 391−92 (3d Cir. 2006) (finding that “application of the doctrine of collateral estoppel was unwarranted” where it contravened the clear intent of Congress “to ensure and expedite the removal of aliens convicted of serious crimes“); cf. also Smith v. Perkins Bd. of Educ., 708 F.3d 821, 827−28 (6th Cir. 2013) (stating that collateral еstoppel principles do not apply where Congress has demonstrated a contrary intent).
To the extent that there is tension between the public interest in finality of administrative judgments and Congress’ clear intent to remove criminal aliens, we believe the latter controls. Several courts agree with this position, which is supported by congressional intent and the Act itself. Quiñones Candelario, 906 F.2d at 801 (“[I]n the context of administrative proсeedings, res judicata is not automatically and rigidly applied in the face of contrary
In view of the clear congressional intent to remove criminal aliens, we conclude that res judicata should not apply in this case. A contrary holding would leave some respondents in a sort of legal limbo, because they would be ineligible to adjust to a legal immigration status but would not be removable if the DHS could not initiate new proceedings against them. It is unlikely that Congress intended for aliens, especially those charged with criminal grounds of removability, to remain in such an uncertain status. See Matter of Pangan-Sis, 27 I&N Dec. 130, 136 (BIA 2017).
In reaching our conclusion that res judicata does not apply in this case, we respectfully disagree with the Ninth Circuit‘s decision in Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th Cir. 2007), where the court concluded that res judicata barred the Government from issuing a second notice to appear based on a conviction that it could hаve presented in the first case. Relying on the language of the regulation that is currently at
The respondent contends that he should prevail under the rationale in Bravo-Pedroza, because the DHS had the opportunity to charge the aggravated felony burglary ground while his case was on remand. It is true that, in civil actions outside the context of immigration or other administrative proceedings, the application of res judicata extends to issues that “should have been litigated” in a prior proceeding, as well as issues that actually were litigated. Browning v. Levy, 283 F.3d 761, 771 (6th Cir. 2002). However, like the courts in Duhaney and Channer, we disagree with the Ninth Circuit that this aspect of the res judicata doctrine is dispositive in immigration proceedings where the grounds of removability charged are
In sum, we conclude that the DHS is not precluded by res judicata from initiating a separate proceeding to remove the respondent as an alien convicted of an aggravated fеlony burglary offense under
B. Burglary
We also agree with the Immigration Judge‘s finding that home invasion in the first degree in violation of
The generic definition of burglary, as defined by the United States Supreme Court, is “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 598 (1990). The respondent argues that committing a crime while “in the act of entering, while being present in, or while leaving a dwelling” falls outside the generic definition of burglary in Taylor. However, we agree with the Immigration Judge and the DHS that the added elements under the Michigan statute of committing the crime while
We further agree that the entirety of the statute falls within the generic burglary definition and that the offense of home invasion is an aggravated felony under
ORDER: The appeal is dismissed.
Notes
A person who breaks and enters a dwelling with intent to commit a felony, larceny, or assault in the dwelling, a person who enters a dwelling without permission with intent to commit a felony, larceny, or assault in the dwelling, or a person who breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a felony, larcеny, or assault is guilty of home invasion in the first degree if at any time while the person is entering, present in, or exiting the dwelling either of the following circumstances exists:
(a) The person is armed with a dangerous weapon.
(b) Another person is lawfully present in the dwelling.