In the final days of 2017, the Board of Immigration Appeals issued a precedent decision in Matter of Jasso Arangure.1 The respondent in that case, a longtime permanent resident, had been convicted of first-degree home invasion under Michigan law. ICE had placed him into removal proceedings because it claimed the conviction constituted an aggravated felony as a “crime of violence” under section 101(a)(43)(F) of the Immigration and Nationality Act. Although the immigration judge agreed with ICE, Mr. Jasso won his appeal because the 6th Circuit Court of Appeals, in another case, found the concept that a crime that in itself was not violent (i.e. home invasion) could be considered a “crime of violence” because hypothetically, a violent confrontation could occur, was unconstitutionally vague. As a result, Mr. Jasso’s case was terminated because the government had not met its burden of proof.
Two days later, the government commenced another case against Mr. Jasso. It again charged him, on the basis of the exact same home invasion conviction, of being removable as an aggravated felon, but this time, instead of labeling it a crime of violence, ICE argued that it met the definition of an aggravated felony burglary offense under section 101(a)(43)(G) of the Act. Mr. Jasso moved to terminate, arguing that the new proceedings were barred by the doctrine of res judicata, which forbids relitigating the same issue between the same parties where the matter has already reached a final judgment on the merits. The immigration judge did not terminate, and ordered the respondent removed.
On appeal, the BIA affirmed. The BIA had to acknowledge that res judicata had been found to apply in the administrative law context, and that the Board itself had applied the similar doctrine of collateral estoppel in its own precedent decisions. Nevertheless, the BIA concluded that it would be too burdensome “to require the DHS to present all possible bases for removal in a single proceeding.” That statement is remarkably misleading. In this case, it would have required the ICE attorney at most two extra minutes to add the additional charge of “burglary” to the original “crime of violence” charge. If ICE somehow neglected to do this in the original charging document, an ICE attorney could have added the additional charge later, a common practice.
The BIA added that “whether a particular offense is an aggravated felony is a legal determination affected by complex laws that are in constant flux,” the implication being how can we punish the poor DHS for not anticipating an unexpected change in law. But the same BIA proved the disingenuousness of this approach less than six months later, following former Attorney General Jeff Sessions’ decision in Matter of A-B-. Four days later, when the BIA decided an appeal that had been argued and decided while Matter of A-R-C-G- was still a precedent decision that was commonly relied on to grant domestic violence cases, the BIA did not say “a grant of asylum is a legal determination affected by complex laws that are in constant flux,” and remand the matter to allow the applicant to reformulate her arguments under the four-day-old decision. To the contrary, the Board said “the Attorney General has foreclosed the respondent’s arguments,” and dismissed the appeal with no meaningful analysis.2
Fortunately, Mr. Jasso appealed to the Sixth Circuit, which issued its decision in the final days of 2018. Under a concept known as Chevron deference, circuit courts must defer to the BIA’s interpretation of a statute if and only if the statutory language being interpreted is ambiguous. In recent years, the trend has been for the circuit courts to find the language ambiguous and accord such deference. In this case, it would have been particularly easy for the court to do so, because the Immigration and Nationality Act is completely silent as to whether the concept of res judicata should apply in removal proceedings.
However, the Sixth Circuit did something extraordinary. It first noted that the Supreme Court has recently taken the circuit courts to task for being too quick to find a statute ambiguous,3 and therefore decided to exercise due diligence before reaching such determination in the present case. And even though there was no statutory language at all, the court took the extra step of turning to “canons,” which it defined as “general background principles that courts have developed over time to guide statutory interpretation.” The court noted one such canon in particular, which presumes “that general statutory language incorporates established common-law principles (like res judicata) unless ‘a statutory purpose to the contrary is evident.’” Pursuant to a lengthy, detailed analysis, the court concluded that the canon should properly be applied in removal proceedings, which renders the statute unambiguous, meaning that res judicata applies.
The Sixth Circuit next examined whether “a statutory purpose to the contrary is evident.” The Court noted that the statutory burden of proof that Congress put on DHS to prove removability by “clear and convincing evidence” “would be rendered ‘largely meaningless’ if DHS could repeatedly bring one proceeding after another until it got the result it wanted.”
The BIA had tried to support its decision below by reading into the Act a clear Congressional intent to remove noncitizens convicted of aggravated felonies and other crimes, determining that a concept such as res judicata shouldn’t apply where it would interfere with such a clear Congressional intent. The Board concluded that the purpose for res judicata, which it expressed as “the public interest in the finality of administrative judgments,” was no match for “Congress’ clear intent” to remove noncitizens convicted of crimes.
The Sixth Circuit had a wonderful reply, finding the Board’s approach “suggests courts can simply ignore the enacted text and instead replace it with an amorphous ‘purpose’ that happens to match with the outcome one party wants.” The court further pointed out the ridiculousness of the Board’s approach, as, since Congress always wants its statutes to be enforced, res judicata could always be viewed as an obstacle, and so such reading would have the effect of rendering the whole common-law presumption “meaningless.” The court wisely concluded that “statutes are motivated by many competing - and often contradictory - purposes” which “Congress addresses...by negotiating, crafting, and enacting statutory text. It is that text that controls, not a court’s after-the-fact reevaluation of the purposes behind it.”
Having ruled that res judicata could be applied, the court found that three of the four requirements for applying res judicata were met. The court concluded that both proceedings involved the same facts, as they were both based on the same Michigan conviction, and that the different basis for the aggravated felony charge lodged by DHS was not a new fact, but rather a different legal theory of a party. The court also found that there was no dispute that both proceedings involved the same parties, and that DHS could have lodged the burglary charge in the earlier proceedings. The only remaining question was whether the first proceeding concluded in a final judgment. As the court found it unclear from the record whether the termination of the initial proceedings was with or without prejudice, it remanded the record for the BIA to consider the question in the first instance.
Regardless of the outcome on remand, the decision is important, as the doctrine of res judicata will again be available (at least in the Sixth Circuit) to preclude ICE from subjecting noncitizens to multiple removal proceedings due to the Government’s lack of preparation. The decision might also signal the application of a tougher standard for determining whether Chevron deference is due to BIA precedent decisions. In a footnote, the Sixth Circuit pointed out that “many members of the Supreme Court” have questioned Chevron deference, including present Chief Justice Roberts and Justices Thomas, Gorsuch, and Kavanaugh. The Supreme Court recently granted certiorari in a case concerning the continued viability of the related concept of Auer deference, according deference to an agency’s interpretation of its own regulations.4 Let’s hope that the circuit courts will in the future be less inclined to rely on Chevron to afford the BIA a free pass, and instead be more likely to take the Board to task for its poorly-reasoned, result-driven decisionmaking.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
27 I&N Dec. 178 (BIA 2017).
Matter of M-J- (unpublished decision, June 15, 2018).
See, e.g. Pereira v. Sessions, 138 S.Ct. 2105, 2121 (Kennedy, J., concurring).
4. Kisor v. Wilkie, 899 F.3d 1360 ( cert. granted (U.S. Dec. 10, 2018) (No. 18-15).