JASSO ARANGURE

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 (BIA 2017)                         Interim Decision #3910




           Matter of Ramon JASSO ARANGURE, Respondent
                            Decided December 29, 2017

                            U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals

(1) The Department of Homeland Security is not precluded by res judicata from initiating
   a separate proceeding to remove an alien as one convicted of an aggravated felony
   burglary offense under section 101(a)(43)(G) of the Immigration and Nationality Act,
   

(a)(43)(G) (2012), based on the same conviction that supported a
   crime of violence aggravated felony charge under section 101(a)(43)(F) in the prior
   proceeding. Bravo-Pedroza v. Gonzales, 

 (9th Cir. 2007), not followed.
(2) Home invasion in the first degree in violation of Michigan Compiled Laws section
   750.110a(2) is a categorical burglary offense under section 101(a)(43)(G) of the Act.
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 section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 

(a)(2)(A)(iii) (2012), as an alien convicted
of an aggravated felony burglary offense under section 101(a)(43)(G) of the
Act, 

(a)(43)(G) (2012), and ordered him removed from the
United States. 1 The respondent has appealed from that decision. The appeal
will be dismissed.

               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
1
    The Immigration Judge incorporated by reference a decision dated December 1, 2016,
in which he determined the issue of the respondent’s removability and denied his motion
to terminate the proceedings.


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home invasion in the first degree in violation of section 750.110a(2) of the
Michigan Compiled Laws. 2 On January 20, 2015, the respondent was
sentenced to a term of imprisonment of 18 months to 20 years.
    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 section
101(a)(43)(F) of the Act. On April 27, 2016, the Immigration Judge
sustained the charge, finding that the respondent was convicted of a crime of
violence, as defined in 

(b) (2012), and ordered him removed
from the United States. The respondent appealed from that decision.
    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, 

 (6th Cir. 2016), which declared 

(b) to be unconstitutionally vague. In light of this change in law, the
Immigration Judge terminated the removal proceedings on remand in a
decision dated September 13, 2016. 3
    The DHS issued a second notice to appear on September 15, 2016,
charging the respondent with removability as an alien convicted of an
aggravated felony burglary offense under section 101(a)(43)(G) of the Act,
based on the respondent’s home invasion conviction. Through counsel, the
respondent filed a motion to terminate the new proceedings, arguing that his
offense is not an aggravated felony and that these proceedings are barred by
the doctrine of res judicata. The DHS submitted a response in opposition to
the respondent’s motion.
    In his December 1, 2016, decision, the Immigration Judge denied the
motion to terminate and determined that the respondent’s conviction was for

2
     Section 750.110a(2) of the Michigan Compiled Laws provides as follows:

      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, larceny,
      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.
3
   The Immigration Judge’s order did not specify whether the termination was with
prejudice, which is an issue disputed by the parties. For purposes of this appeal, we will
assume, arguendo, that the termination order was with prejudice.


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an aggravated felony burglary offense under section 101(a)(43)(G) of the
Act. He ordered the respondent removed in his December 6, 2016, decision,
from which the respondent has appealed. 4
    The respondent argues on appeal 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 section 101(a)(43)(F) of the Act, while the current
charge is based on a different statute, section 101(a)(43)(G).
    The respondent also asserts that his offense is not a categorical aggravated
felony under section 101(a)(43)(G) of the Act. According to the respondent,
the Michigan home invasion statute is divisible because “the prosecutor
must choose between the following elements: entering (or breaking and
entering) with the intent to commit a crime or committing a crime while
entering, while present in, or while leaving a dwelling.” The respondent
contends that the latter “element” falls outside the generic burglary definition
and that he was convicted of that “element.” The DHS argues the
respondent’s offense is a categorical aggravated felony under section
101(a)(43)(G).

                                  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., 

 (2d Cir. 2008) (citing Semtek Int’l Inc. v. Lockheed Martin
Corp., 

 (2001)); see also Winget v. JP Morgan Chase Bank,
N.A., 

, 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, 

(quoting Waldman v. Vill. of Kiryas Joel, 

, 108 (2d Cir. 2000));
see also Alvear-Velez v. Mukasey, 

 (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

4
   On April 7, 2017, we again remanded the record to the Immigration Judge to consolidate
the original proceedings with the current proceedings and to include in the record certain
documents deemed necessary for adjudication of the respondent’s appeal. The
Immigration Judge issued an order on April 19, 2017, complying with our request and
certifying the record for adjudication of the respondent’s appeal.

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expense and vexation attending multiple lawsuits, conserves judicial
resources, and fosters reliance on judicial action by minimizing the
possibility of inconsistent decisions.” Montana v. United States, 

, 153−54 (1979); see also B&B Hardware, Inc. v. Hargis Industries, Inc.,

, 1302–03 (2015).
    Res judicata may also apply in the context of administrative law. Astoria
Fed. Sav. and Loan Ass’n v. Solimino, 

 (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, 

 (9th Cir. 1982) (“[I]n the administrative
law context, the principles of . . . res judicata are applied flexibly.”); see also,
e.g., Maldonado v. U.S. Att’y Gen., 

, 1377−78 (11th Cir. 2011);
Johnson v. Whitehead, 

, 128−29 (4th Cir. 2011); Alvear-Velez,

; Quiñones Candelario v. Postmaster Gen. of U.S., 

 (1st Cir. 1990); Facchiano v. U.S. Dep’t of Labor, 

,
1167 (3d Cir. 1988); United States v. Smith, 

 (8th Cir.
1973). The Sixth Circuit agrees with this view. See Parker v. Califano, 

 (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 section 101(a)(43)(F) of the Act.
When a change in law resulted in the termination of those proceedings, the
DHS brought the current proceedings based on the charge that the
respondent was convicted of an aggravated felony burglary offense under
section 101(a)(43)(G). For the following reasons, we conclude that the
Immigration Judge properly determined that res judicata does not bar these
proceedings.
    Although both of the proceedings brought against the respondent are
based on the same conviction and the same charge of removability under
section 237(a)(2)(A)(iii) of the Act, the underlying basis for the charge in
each is different. In this regard, the proof necessary to establish whether a
conviction is for a “crime of violence” or a “burglary offense” is not the

5
   In Matter of Barragan-Garibay, 

, 78−79 (BIA 1974), we applied
collateral estoppel, which is based on the same principles as res judicata, in exclusion
proceedings to preclude relitigation of the question whether an alien effected an entry. We
also applied the doctrine of collateral estoppel in Matter of Fedorenko, 

,
61−64 (BIA 1984), where we gave conclusive effect to facts found during the respondent’s
prior denaturalization proceedings. We note that the question of removability based on
criminal charges, which is at issue in this case, is of a very different nature.

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same, because the elements of each charge are different. This indicates that
the “operative facts” are also different. See Channer, 

(holding that res judicata did not bar the Government from bringing a
second removal proceeding based on the alien’s robbery conviction after his
drug conviction that was litigated in a prior removal proceeding was
vacated, even though the robbery conviction could have been alleged at the
same time).
    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 

(b). His finding was only rendered invalid because
the Sixth Circuit’s intervening decision in Shuti declared § 16(b) to be void
for vagueness. At the time the initial notice to appear was filed on June 8,
2015, no court had found § 16(b) to be void for vagueness, so the Sixth
Circuit’s ruling is a circumstance that the DHS could not have legitimately
anticipated.
    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., 

, 350−51 (3d Cir. 2010); Yong
Wong Park v. Att’y Gen. of U.S., 

 (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 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.
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, 

, 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

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E-R-M- & L-R-M-, 

 (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 purpose to the contrary is evident.’” Astoria,

 (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, 

 n.4 (stating that aliens
convicted of aggravated felonies “fall[] into the category of aliens whom
Congress repeatedly and unambiguously has sought to remove” and 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., 

,
1268 & n.10 (11th Cir. 2012); Johnson, 647 F.3d at 130−31; Duhaney, 

 n.4; cf. Duvall v. Att’y Gen. of U.S., 

, 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., 

, 827−28 (6th Cir. 2013) (stating
that collateral estoppel 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, 

 (“[I]n the context of administrative proceedings,
res judicata is not automatically and rigidly applied in the face of contrary

6
    Congress’ intent to expedite the removal of aliens convicted of serious crimes is evident
in several revisions to the Act, which not only establish special proceedings to handle such
cases but also largely insulate orders of removal against criminal aliens from judicial
review. See sections 238, 242(a)(2)(C) of the Act, 

, 1252(a)(2)(C) (2012);
see also section 236(c)(1) of the Act, 

(c)(1) (2012) (providing for
mandatory detention of certain criminal aliens); Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, 

, 

-627 to -628;
Antiterrorism and Effective Death Penalty Act of 1996, 

 440, 442,

, 1276–80; Leocal v. Ashcroft, 

, 1 n.1 (2004) (discussing the
history of aggravated felony enactments); Duhaney, 

 (“Congress has
repeatedly amended the immigration laws to facilitate the removal of aliens who have been
convicted of aggravated felonies.”).

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public policy.”); Tipler v. E.I. duPont deNemours & Co., 

(6th Cir. 1971) (stating that res judicata is “rejected when [its] application
would contravene an overriding public policy”). Therefore, while we
acknowledge the possibility that the DHS could have filed an amended notice
to appear at some point in the original proceeding, we conclude that it was
not required to do so. See Yong Wong Park, 

 (stating that
“there is no requirement that the [DHS] advance every conceivable basis for
[removability] in the [Notice to Appear]” (alterations in original) (citation
omitted)). We also do 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 still pending, or, as it did, shortly
after the proceeding became administratively final.
    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, 

 (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, 

 (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 have presented in the first case. Relying
on the language of the regulation that is currently at 

(2017)), the court ruled that any new charges must be brought by the DHS
“during the pendency of immigration proceedings.” Id. at 1360. However,
we do not understand that regulation, which enables the bringing of
“additional or substituted” charges at any time during the same proceeding,
as intended to address the issue of res judicata, which necessarily involves
charges brought in a new proceeding.
    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, 

 (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

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criminal in nature. See Duhaney, 

 (declining to follow
Bravo-Pedroza); Channer, 

 (same). 7
    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 felony burglary offense under section
101(a)(43)(G) of the Act based on the same conviction that supported the
crime of violence aggravated felony charge in the prior proceeding.

                                      B. Burglary

    We also agree with the Immigration Judge’s finding that home invasion
in the first degree in violation of Michigan Compiled Laws section
750.110a(2) is a categorical burglary offense under section 101(a)(43)(G) of
the Act. The elements of that crime when committed by “breaking and
entering” are that the defendant (1) broke into a dwelling; and (2) entered the
dwelling; and (3) either intended to commit an offense when breaking and
entering or committed the offense when entering, present in, or leaving the
dwelling; and (4) when entering, present in, or leaving the dwelling, was
armed with a dangerous weapon and/or another person was lawfully present
in the dwelling. See M. Crim. JI 25.2a. The elements of the crime when
committed by “entering without permission” are that the defendant
(1) entered a dwelling without permission; and (2) either intended to commit
an offense when entering, or committed the offense when entering, present
in, or leaving the dwelling; and (3) when entering, present in, or leaving the
dwelling, was armed with a dangerous weapon and/or another person was
lawfully present in the dwelling. See M. Crim. JI 25.2c.
    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, 

 (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
7
    We note that the Ninth Circuit has distinguished its holding in Bravo-Pedroza, albeit in
an unpublished decision, in a case involving a change in the law that created an “altered
situation” between the petitioner’s first and second orders of removal. See Lopez-Bazante
v. Gonzales, 

 (9th Cir. 2007) (“We recognize an exception to res
judicata ‘where between the time of the first judgment and the second there has been an
intervening decision or a change in the law creating an altered situation.’” (citations
omitted)). As previously noted, there was a significant change in law during the pendency
of the respondent’s initial proceedings when the circuit courts found 

(b) to
be void for vagueness, thereby invalidating the crime of violence charge against him.

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“entering, present in, or exiting” a dwelling, if anything, may narrow the
scope of the statute’s definition of burglary, rather than expanding it to
include conduct outside of the generic definition.
    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 section 101(a)(43)(G) of the Act. In United States v. Quarles,

 (6th Cir. 2017), the Sixth Circuit held that third degree
home invasion under Michigan law is categorically equivalent to generic
burglary. According to the court, generic burglary “as defined in Taylor,
does not require intent at entry; rather the intent can be developed while
‘remaining in’” the dwelling without permission. 8 Because we concur with
this assessment, we conclude that the respondent is removable as charged.
Accordingly, the appeal will be dismissed.
    ORDER: The appeal is dismissed.




8
    The court in Quarles relied on United States v. Priddy, 

 (6th Cir.
2015), which rejected the very argument advanced by the respondent, namely, that a person
who committed a crime while leaving a dwelling was not within the ambit of a generic
burglary offense. The Sixth Circuit found that the intent to commit a crime did not have
to exist at the time of entry and that first degree home invasion under Michigan law was
within the parameters of generic burglary because it was a type of unauthorized “remaining
in” burglary offense within the meaning of Taylor. While the Sixth Circuit has recently
abrogated its holding in Priddy that the Tennessee statute at issue there covers a burglary
offense, it did so on other grounds, specifically, that the Tennessee statute reached vehicles
and other structures not covered by generic burglary and was not divisible. United States
v. Stitt, 

, 858−60. 862−63 (6th Cir. 2017) (en banc).

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