Introduction: Matter of Jasso Arangure, 27 I&N Dec. 178 (BIA 2017)

On December 29, 2017, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Jasso Arangure, 27 I&N Dec. 178 (BIA 2017) [PDF version]. In the most far-reaching aspect of Matter of Jasso Arangure, the Board held that the Department of Homeland Security (DHS) is not precluded from initiating a removal proceeding against an alien for aggravated felony burglary (section 101(a)(43)(G) of the Immigration and Nationality Act (INA)) against whom it had previously initiated a separate removal proceeding for aggravated felony crime of violence (section 101(a)(43)(F)) based on the same criminal conviction. Notably, the Board declined to follow a decision of the United States Court of Appeals for the Ninth Circuit in Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th Cir. 2007). Additionally, the Board held that a conviction for home invasion in the first degree in violation of section 750.110a(2) of the Michigan Compiled Laws is a categorical burglary offense under section 101(a)(43)(G) of the INA.

In this article, we will examine the facts and procedural history of Matter of Jasso Arangure and the Board’s analysis and conclusion pertaining to its holding that the DHS is not precluded from initiating removal proceedings based on the same conviction upon which it had previously initiated removal proceedings against the same alien. We will examine the Board’s analysis and conclusions on the categorization of the respondent’s home invasion/burglary conviction in a separate companion article [see article].

Factual and Procedural History: 27 I&N Dec. at 178-80

The respondent, a native and citizen of Mexico, was admitted to the United States for lawful permanent residency in 2003. In 2014, the respondent pled guilty to home invasion in the first degree in violation of section 710.110a(2) of the Michigan Compiled Laws. The respondent was sentenced to a term of imprisonment of 18 months to 20 years based on this conviction.

On April 21, 2015, the DHS charged the respondent as removable as an alien convicted of an aggravated felony (section 237(a)(2)(A)(iii) of the INA) based on his conviction being an aggravated felony crime of violence under section 101(a)(43)(F) of the INA. On April 27, 2016, the Immigration Judge sustained the charge of removability, finding that the respondent’s conviction fell under 18 U.S.C. 16(b) (criminal provision incorporated into the INA). However, on July 26, 2016, the Board remanded the record to the Immigration Judge because the United States Court of Appeals for the Sixth Circuit, in which jurisdiction the case arises, held in Shuti v. Lynch, 828 F.3d 440 (6th Cir. 2016) [PDF version], that 18 U.S.C. 16(b) is unconstitutionally vague. On remand, the Immigration Judge terminated removal proceedings on September 13, 2016.

On September 15, 2016, just two days after the termination of the original proceedings against the respondent, the DHS initiated new removal proceedings, charging the respondent with removability as an alien being convicted of an aggravated felony under section 237(a)(2)(A)(iii). However, in the subsequent proceedings, the Board charged that the same conviction was an aggravated felony under section 101(a)(43)(G) of the INA (aggravated felony burglary) instead of an aggravated felony crime of violence under section 101(a)(43)(F), as specified jn the original proceeding..

The respondent filed a motion to terminate the new removal proceedings, arguing both that (1) his conviction was not aggravated felony burglary and (2) that the new proceedings were barred by the doctrine of res judicata (meaning, in short, that the decision dismissing the original proeceeding constituted the “law of the case” and was not subject to continued litigation).

On December 1, 2016, the Immigration Judge denied the respondent’s motion to terminate proceedings and held that the respondent’s conviction was an aggravated felony burglary offense under section 101(a)(43)(G) of the INA. Accordingly, the Immigration Judge issued a final order of removal against the respondent on December 5, 2016. The respondent appealed from the Immigration Judge’s decision to the BIA.

Issues on Appeal: 27 I&N Dec. at 180

The respondent made two arguments on appeal.

First, the respondent argued “that the Immigration Judge erred in finding that these proceedings are not barred by the doctrine of res judicata.” In short, the respondent’s argument was that the DHS could not charge him as removable in subsequent proceedings based on the same conviction upon which the original proceedings were based. . The DHS argued that res judicata did not apply because the initial removal proceedings were based on the charge that the respondent’s conviction was an aggravated felony under section 101(a)(43)(F), while the instant proceedings were based on the charge that the respondent’s conviction was an aggravated felony under section 101(a)(43)(G).

The respondent also argued that, even if the subsequent charges were not precluded by res judicata, his conviction was nevertheless not a categorical aggravated felony under section 101(a)(43)(G). As we noted in the introduction, we discuss this aspect of the case in a separate companion article.

Ultimately, the Board rejected both of the respondent’s arguments and dismissed his appeal. We will discuss the Board’s decision regarding the respondent’s res judicata argument below. To learn about the Board’s analysis of the respondent’s conviction under section 101(a)(43)(G), please see our companion article [see article].

Analysis — Understanding Res Judicata: 27 I&N Dec. at 180-81

The Board began by explaining that “[r]es judicata is a common law principle that provides ‘a final judgment on the merits bars a subsequent action between the same parties over the same course of action.’” Quoting from Channer v. Dep’t of Homeland Sec., 527 F.3d 275, 279 (2d Cir. 2008) [PDF version]. Again quoting from Channer, 527 F.3d at 280, the Board explained that “[u]nder 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.’” In plain terms, this means that if a final judgment is reached on the merits in a case between the same parties, further action between the same parties based on the same claim is barred.

The Board noted that the Supreme Court of the United States listed the three rationales underlying the doctrine of res judicata in Montana v. United States, 440 U.S. 147, 153-54 (1979) [PDF version]. The Court held that res judicata limits “the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions.”

It is important to note, however, that res judicata does not necessarily apply the same way in administrative law — which encompasses civil immigration proceedings such as the one at issue in the instant case — as it does in criminal law. The Board explained that several Federal circuit courts have determined that res judicata “applies more flexibly in [administrative proceedings] than it does in judicial proceedings.” In short, the Board noted that several Federal court decisions have held that res judicata applies more strictly in the non-administrative context than it does in the administrative context.

Analysis and Conclusion — Res Judicata in the Instant Case: 27 I&N Dec. 181-84

Having discussed the background of res judicata, the Board moved to examine the issues as applied to the factual and procedural history of Matter of Jasso Arangure.

The Board noted that, in prior proceedings, the respondent had “admitted the factual allegations of the initial notice to appear…” After the Immigration Judge sustained the charge in the initial proceedings that the respondent was removable based on a conviction described by section 101(a)(43)(F), those proceedings were eventually terminated due to a change in the law. The DHS subsequently initiated new removal proceedings based on the charge that the same conviction as that at issue in the initial proceedings was also an aggravated felony under section 101(a)(43)(G). The Board ultimately concluded that the Immigration Judge was correct in concluding that res judicata did not bar the proceedings in the instant case.

The Board noted that both the initial and subsequent proceedings were based on the charge that the respondent was removable under section 237(a)(2)(A)(iii) as an alien convicted of an aggravated felony. Furthermore, the same criminal conviction formed the basis of both the initial and subsequent charges that the respondent had been convicted of an aggravated felony. However, the Board added that “the underlying basis for the charge [under section 237(a)(2)(A)(iii) of the INA] in each [case] is different.” In the original proceedings, the DHS sought to establish that the respondent’s conviction was an aggravated felony crime of violence under section 101(a)(43)(F). In the subsequent and instant case, the DHS sought to establish that the respondent’s conviction was aggravated felony burglary under section 101(a)(43)(G). In light of this distinction, the Board noted that “the proof necessary to establish whether a conviction is for a ‘crime of violence’ or a ‘burglary offense’ is not the same, because the elements of each charge are different.” In short, the Board explained that determining whether a conviction is a crime of violence is a different question than determining whether it is a burglary. Accordingly, the Board added that “this indicates that the operative facts are also different” (internal quotation omitted).

Regarding the initial proceedings, the Board took the position that “a crime of violence was the most appropriate charge under the law at the time [the initial] proceedings against the respondent were first commenced.” To this effect, the Board explained that no Federal circuit court at that time had found that 18 U.S.C. 16(b) (note that section 101(a)(43)(F) incorporates 18 U.S.C. 16(a) and (b)) was unconstitutionally vague. Accordingly, the Board took the position that the DHS “could not have legitimately anticipated” the intervening Sixth Circuit decision in Shuti that resulted in the dismissal of the initial proceedings against the respondent. The Board cited to the initial proceedings and the decision in Shuti as an example that “[w]hether a particular offense is an aggravated felony is a legal determination affected by complex laws that are in constant flux.” For this reason, it held that “[t]o 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” in the administrative law as opposed to the criminal law context.

The Board’s point here recalls the Supreme Court decision in Montana establishing that a goal of res judicata is to conserve judicial resources. Here, the Board cited to the decision of the United States Court of Appeals for the Third Circuit in Yong Wong Park v. U.S. Att’y Gen., 472 F.3d 66, 73 (3d Cir. 2006) [PDF version], wherein the Third Circuit held that requiring the DHS to present every possible basis for removability “would needlessly complicate proceedings in the vast majority of cases.” In an additional point, the DHS added that it would not be “practical” to require the DHS to present all possible charges of removability in a single proceeding. Here, recall that the Board noted, regarding the initial and subsequent proceedings in the instant case, that the elements of section 101(a)(43)(F) and (G) differ. The Board noted that if the DHS were required to present all possible charges of removability, it “would have to determine 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.” As applied to the instant case, the Board’s position was essentially (1) that the DHS had no reason based on the law at the commencement of the initial proceedings to assume that its charge under section 101(a)(43)(F) would not succeed, and (2) that it would not have been reasonable to require the DHS, in light of that, to add a charge under section 101(a)(43)(G), which would have required a distinct presentation of proof. Furthermore, the Board noted that requiring the DHS to present all possible charges would require Immigration Judges “to rule on multiple, redundant charges,” which it added “would further burden the already backlogged immigration system.” The Board cited favorably to the decision of the United States Court of Appeals for the Fourth Circuit in Grose v. Cohen, 406 F.2d 823, 824-25 (4th Cir. 1969) [PDF version], wherein the Fourth Circuit held stated that “practical reasons may exist for refusing to apply” the concept of res judicata in administrative proceedings.

The Board added that “[t]he DHS has broad discretion in determining whether to initiate proceedings and which charges of removability to bring.” The Board held that this discretion is especially apparent in the context of the removability provision for an alien convicted of an aggravated felony, “where the societal interest in removing criminal aliens is strongest.” The Board cited to the Supreme Court decision in Astoria Fed. Sav. And Loan Ass’n v. Solimino, 501 U.S. 104, 107 (1991) [PDF version], wherein the Court stated that the rules of preclusion under res judicata should “apply except ‘when a statutory purpose to the contrary is evident.’” (Internal citations omitted). In the instant case, the Board determined that the removal of aliens who committed aggravated felonies constituted a “special concern that merits an even greater degree of flexibility and forbearance in the application of the res judicata doctrine.”

The Board noted that several Federal courts have, to varying degrees, indicated that res judicata may not apply in the removal context. The Board noted the previously cited to decision of the Second Circuit in Channer, 527 F.3d at 280 n.4, in addition to the following cases:

The Board acknowledged that there may be “tension between the public interest in finality of administrative judgements and Congress’ clear intent to remove criminal aliens”; however, the Board noted that its position was that Congress’s intent to remove criminal aliens controls. For this reason, the Board explained that, while the DHS could have filed an amended notice to appear in the original proceeding (meaning, it could have amended the initial charges instead of dismissing them and commencing new proceedings with the issuance of a subsequent notice to appear), the DHS was not required to do so. The Board also did “not find it appropriate for the res judicata determination to turn on whether the DHS brought the burglary charge on remand while the original proceeding was pending, or, as it did, shortly after the proceeding [was terminated].”

The Board made one final point regarding what it concluded would be the result of ruling in favor of the respondent. It stated that “[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.” The Board applied similar logic to a different issue in its recent decision in Matter of Pangan-Sis, 27 I&N Dec. 130, 136 (BIA 2017) [PDF version], which we have covered on site [see article].

Board Disagrees with Ninth Circuit: 27 I&N Dec. at 184-85

The Board recognized that its conclusion in the instant case diverged from the decision of the Ninth Circuit in Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th Cir. 2007) [PDF version]. In Bravo-Pedroza, the Ninth Circuit “concluded that res judicata barred the Government from issuing a second notice to appear based on a conviction that it could have presented in the first case.” The Board noted that the Ninth Circuit decision was based on the language of 8 C.F.R. 1003.30, which the Ninth Circuit read as requiring any new charges to be brought in the pendency of proceedings. Id. at 1360. The Board disagreed in that it did not understand the regulation “as intended to address the issue of res judicata…” Instead the Board interpreted the regulation as only enabling the Government to bring additional or substituted charges at any time during one proceeding, and not as addressing whether the Government can bring new charges in subsequent proceedings.

Distinguishing Prior BIA Decisions: 27 I&N Dec. at 181 n.5

In a footnote, the Board distinguished its prior published decisions which dealt with issues similar, but not identical, to the application of res judicata in the instant case.

First, the Board noted that in Matter of Barragan-Garibay, 15 I&N Dec. 77, 78-79 (BIA 1974) [PDF version], it had applied the principle of collateral estoppel “in exclusion proceedings to preclude relitigation of the question of whether an alien affected an entry.” The Board noted that collateral estoppel, which involves the preclusion of re-litigating an issue, is a similar concept to res judicata. In Matter of Fedorenko, 19 I&N Dec. 57, 61-64 (BIA 1984) [PDF version], the Board explained that it “gave conclusive effect to facts found during the respondent’s prior denaturalization proceedings.” However, the Board noted “that the question of removability based on criminal charges, which is at issue in this case, is of a very different nature.”

Conclusion

The main holding in Matter of Jasso Arangure is significant in that it provides the DHS with latitude to initiate new removal proceedings based on the same conviction as in prior removal proceedings. However, the decision may have limitations that are important to bear in mind. First, the Board made clear that its decision was based on issues that arise in the context of the removal of criminal aliens and, perhaps more specifically, aliens who may be removable for having been convicted of an aggravated felony. As the Board’s distinguishing footnote suggested, res judicata, or similar concepts such as collateral estoppel, may apply in proceedings that do not involve charges based on aggravated felonies or other criminal conduct. Second, the instant case involved the DHS charging the alien as being removable based on a different aggravated felony, albeit relying on the same underlying conviction, as the initial proceedings. Third, the Board noted that the Ninth Circuit has taken a contrary position. Accordingly, it is possible that this rule will not be followed by the Ninth Circuit, which would mean that many western states would have a stricter res judicata rule for removal proceedings than the rule set forth by the Board in the instant case. An alien facing removal proceedings should always seek the counsel of an experienced immigration attorney expeditiously.

To learn about the Board’s conclusion that the respondent’s conviction was a categorical aggravated felony burglary offense, please see our companion article [see article]. To see our wide section of articles, please see our BIA precedent decision directory [see article], and specifically or collection of articles on BIA decisions about aggravated felonies [see section].