Jasso-Arangure v. Whitaker, No. 18-3076 (6th Cir. 2018)Annotate this Case
In 2003, Jasso obtained lawful U.S. permanent resident status. More than a decade later, he pled guilty to first-degree home invasion in Michigan. DHS began removal proceedings, arguing that Jasso’s home-invasion conviction was a “crime of violence” under 8 U.S.C. 1101(a)(43)(F), 1227(a)(2)(A)(iii), which then defined a “crime of violence” with both an elements clause and a residual clause, 18 U.S.C. 16. The IJ found that Jasso’s home-invasion conviction was a crime of violence under the residual clause. Before the Board of Immigration Appeals acted, the Sixth Circuit found the residual clause unconstitutionally vague. The BIA remanded for a new removability determination. The IJ terminated the proceeding, warning Jasso that DHS could “recharge under a different theory.” Two days later DHS initiated a second removal proceeding, arguing that Jasso’s home-invasion conviction was a “burglary offense” rather than a “crime of violence,” 8 U.S.C. 1101(a)(43)(G), 1227(a)(2)(A)(iii). The IJ agreed and rejected Jasso’s argument that res judicata barred the second proceeding. The BIA affirmed, concluding that res judicata does not apply in removal proceedings involving aggravated felons. The Sixth Circuit vacated and remanded for determination of whether claim preclusion applies, which depends on whether the first removal proceeding was dismissed with or without prejudice—an issue never addressed by the Board.