Fifth Circuit Finds that DHS Can Use the Same Conviction for Subsequent Charge of Removability

The petitioner was convicted of robbery in Texas and charged with deportability for a crime involving moral turpitude. He readjusted status with a waiver, and subsequently, violated probation, resulting in a prison sentence. The Department of Homeland Security then charged him with deportability for an aggravated felony. The Fifth Circuit found that res judicata did not apply because the Department of Homeland Security could not have brought the aggravated felony charge in the first proceeding.

The full text of Cruz Rodriguez v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60456-CV0.pdf

Fifth Circuit Finds Res Judicata Inapplicable to Removability Charges Based on Different Convictions

The Fifth Circuit determined that the Department of Homeland Security was not precluded from bringing an aggravated felony charge based on the petitioner’s burglary conviction after the Board of Immigration Appeals terminated proceedings based on an aggravated felony charge related to the petitioner’s evading police conviction. “Because the two proceedings against Chavez did not deal with the same claim or cause of action, res judicata did not preclude the DHS from seeking to remove Chavez on the basis of his burglary conviction.”

The full text of Chavez-Mercado v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60212-CV0.pdf

Sixth Circuit Finds that Res Judicata Applies in Removal Proceedings

The Sixth Circuit has determined that the canon of res judicata applies to removal proceedings. “To restate the canon: because res judicata is a well-established common-law principle, it presumptively applies to an administrative adjudicatory scheme set up by a statute unless a purpose to the contrary is evident. Congress must make the contrary statutory purpose clear, either through explicit text or through an obvious inference from the statute’s structure.”

Applying the canon of res judicata, the court found that the Department of Homeland Security could be barred from charging the petitioner with a burglary-related aggravated felony after it failed to meet its burden of proving that the burglary conviction was a crime of violence. Notably, the removal proceedings were terminated after the failed crime of violence charge, and before the Department charged the petitioner with a burglary offense. However, because it was unclear if the termination order was with or without prejudice, the court remanded the case to the agency to determine if the case had been litigated to finality.

The full text of Jasso Arangure v. Whitaker can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0272p-06.pdf

BIA Declines to Apply Res Judicata; Deems MI Conviction for First Degree Home Invasion to be Burglary Aggravated Felony

The Board of Immigration Appeals (Board) has determined that the doctrine of res judicata does not prevent the Department of Homeland Security (DHS) from bringing a new removable proceeding (with a new charge of removability) based on a criminal conviction that did not sustain the charge of removability in a prior proceedings.  In the instant case, the DHS had initially charged the respondent with a conviction for a crime of violence aggravated felony based on a Michigan conviction for first-degree home invasion.  Due to intervening case law regarding the definition of a crime of violence, those proceedings were terminated.  The DHS then re-charged the respondent with a burglary aggravated felony based on the same conviction.  The Board determined that res judicata did not bar the second proceedings, though it also recognized that its decision was in conflict with Ninth Circuit jurisprudence.  The Board also determined that a Michigan conviction for first-degree home invasion is categorically a burglary aggravated felony.

The full text of Matter of Jasso Arangure can be found here:

https://www.justice.gov/eoir/page/file/1021376/download