DHS Is Not Precluded By Res Judicata From Initiating New Removal Proceedings Against One Convicted Of An Aggravated Felony Burglary Offense Per INA § 101(A)(43)(G) Based On The Same Conviction That Supported An Aggravated Felony Crime Of Violence Charge Per INA §(101)(A)(43)(F) In A Prior Matter. Home Invasion In The First Degree Under Michigan Compiled Laws §750.11a(2) Is A Categorical Burglary Offense Per INA § 101(A)(43)(G). Bravo-Pedroza V. Gonzalez, 475 F.3d 1358 (9th Cir. 2007), Not Followed.

On December 29, 2017, the Board of Immigration Appeals (BIA or Board) issued a decision denying the appeal of a respondent who had been charged with removability and placed into proceedings as one convicted of an aggravated felony crime of violence per INA §101(a)(43)(F) and ordered removed by the Immigration Judge (IJ).  Respondent appealed and the BIA remanded to the IJ in light of an intervening Sixth Circuit Court of Appeals (in whose jurisdiction this case arises) opinion holding 18 U.S.C. §16(b) unconstitutionally vague; as a result, the IJ terminated proceedings.  DHS then issued a 2nd NTA, charging respondent with removability under INA §101(a)(43)(G) as one convicted of an aggravated felony burglary offense; he filed a motion to terminate on the grounds that 1) the offense is not an aggravated felony and 2) further removal proceedings are barred by res judicata.  The IJ denied the motion, found the respondent removable under § 101(a)(43)(G) and this opinion addressed the respondent’s appeal, essentially the same arguments made to the IJ in the motion.

At the outset of its analysis, the Board noted that the 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’”.  Because the doctrine is applied more flexibly in the administrative law context, the Board concluded that the IJ had properly held that res judicata does not bar these proceedings; the “underlying basis” for each charge is different, held the BIA, in that the proof required to establish whether an offense is a “crime of violence” or a “burglary offense” is not the same.  

Further, found the opinion, the IJ had properly sustained the crime of violence charge under the applicable precedent at that time per 18 U.S.C. § 16(b), a decision only rendered invalid by the Sixth Circuit’s intervening finding in Shuti v. Lynch, 828 F.rd 440 (6th Cir. 2016).  When the first NTA was filed, added the Board, no court had yet found § 16(b) void for vagueness, so Shuti constitutes “a circumstance that the DHS could not have legitimately anticipated”.  The BIA also found that requiring DHS to anticipate “every possible turn of events” and charge a respondent with all conceivable grounds would inhibit the very judicial economy that is a “fundamental goal of res judicata”.   Similarly, it would not be practical to mandate that DHS present “all possible bases for removal in a single proceeding”.   

As to the perceived tension herein between the public’s interest in administrative finality and Congress’s “clear intent” to remove criminals from the U.S., the Board noted that “the latter controls”.  Thus, concluded the BIA, res judicata should not apply here; a contrary holding would leave certain respondents in a legal limbo-ineligible to adjust status but not removable if new proceedings could not be initiated.  In view of this, the Board respectfully disagreed with the Ninth Circuit precedent, Bravo-Pedroza v. Gonzalez, 475 F.3d 1358 (9th Cir. 2007), which found that the principle bars DHS from issuing a second NTA based on a conviction it could have presented in the first case.  Contrary to the Ninth Circuit’s interpretation of 8 C.F.R. § 1003.30 (2017), the BIA did not understand that regulation, which allows the bringing of additional or substituted charges at any time during the same proceeding, to address the issue of res judicata at all.  The Board disagreed with respondent’s contention that “this aspect of the res judicata doctrine is dispositive in immigration proceedings where the grounds of removability charged are criminal in nature”, concluding that DHS is not precluded by res judicata from initiating a separate removal proceeding against the respondent because of his aggravated felony burglary offense per INA § 101(a)(43)(G), based on the same conviction that supported the prior proceeding.

Lastly, the BIA agreed with the IJ’s finding that home invasion in the first degree under Michigan Compiled Laws § 750.110a(2) is categorically a burglary aggravated felony per INA § 101(a)(43)(G), holding that the added elements to the crime’s definition under the Michigan statute, in fact, narrowed the scope of the statute’s definition rather than expanding it to include conduct outside of the generic definition.  The entirety of the Michigan law, found the opinion, falls within the generic burglary definition which does not require intent at entry; the requisite intent can be developed while “remaining in” a dwelling without permission.  The appeal was thus dismissed.  Matter of Jasso Arangurre, 27 I&N Dec. 178 (BIA 2017).

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