Arangure v. Whitaker

• Decision Date: 18 December 2018
• Docket Number: No. 18-3076,18-3076
• Citation: 911 F.3d 333
• Parties: Ramon Jasso ARANGURE, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

911 F.3d 333

Ramon Jasso ARANGURE, Petitioner,
v.
Matthew G. WHITAKER, Acting Attorney General, Respondent.

No. 18-3076

United States Court of Appeals, Sixth Circuit.

Argued: November 27, 2018
Decided and Filed: December 18, 2018

ARGUED: Benjamin Casper Sanchez, Paul Dimick, Zachary Hofeld, UNIVERSITY OF MINNESOTA, Minneapolis, Minnesota, for Petitioner. Song E. Park, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin Casper Sanchez, UNIVERSITY OF MINNESOTA, Minneapolis, Minnesota, Russell Abrutyn, ABRUTYN LAW, PLLC, Berkley, Michigan, for Petitioner. Song E. Park, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Javier N. Maldonado, LAW OFFICE OF JAVIER N. MALDONADO, San Antonio, Texas, Khaled Alrabe, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, Boston, Massachusetts, for Amici Curiae.

Before: THAPAR, BUSH, and NALBANDIAN, Circuit Judges.

OPINION

THAPAR, Circuit Judge.

911 F.3d 336

Courts have always had an "emphatic[ ]" duty "to say what the law is." Marbury v. Madison , 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). But all too often, courts abdicate this duty by rushing to find statutes ambiguous, rather than performing a full interpretive analysis. When dealing with agencies, this abdication by ambiguity is even more tempting—and even more problematic. Because, under Chevron , ambiguity means courts get to outsource their "emphatic" duty by deferring to an agency's interpretation. But even Chevron itself reminds courts that they must do their job before applying deference: they must first exhaust the "traditional tools" of statutory interpretation and "reject administrative constructions" that are contrary to the clear meaning of the statute. Chevron USA, Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 843 n.9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). First and foremost, this means courts must analyze the statutory text. But when the text standing alone does not supply an answer, courts must consider canons of interpretation. Here, a canon makes the statute's meaning clear. Thus, we reject the agency's contrary interpretation.

I.

In 2003, the United States granted Jasso lawful permanent resident status.¹ Over a decade later, he pled guilty to first-degree home invasion in Michigan. See Mich. Comp. Laws (MCL) § 750.110a(2). Shortly thereafter, DHS began a removal proceeding.

DHS argued that Jasso's home-invasion conviction was a "crime of violence," making him removable under the Immigration and Nationality Act ("INA"). See 8 U.S.C. §§ 1101(a)(43)(F), 1227(a)(2)(A)(iii). At the time, the statute defined a "crime of violence" with both an elements clause and a residual clause. 18 U.S.C. § 16. The Immigration Judge found that Jasso's home-invasion conviction was a crime of violence under the residual clause. Jasso appealed to the Board of Immigration Appeals ("Board"), but, in the interim, this court found the residual clause unconstitutionally vague. Shuti v. Lynch , 828 F.3d 440, 446 (6th Cir. 2016). Since Jasso's removal order hinged on the residual clause, the Board remanded to the Immigration Judge for a new removability determination. In light of Shuti , the judge terminated the proceeding. In doing so, he explained that the termination was "without prejudice" and warned Jasso that DHS could still "recharge under a different theory." AR 134.

911 F.3d 337

DHS accepted the invitation two days later and initiated a second removal proceeding against Jasso relying on a different statutory subsection. This time DHS argued 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 Immigration Judge agreed and also rejected Jasso's argument that res judicata barred the second proceeding. The Board affirmed, concluding that the doctrine of res judicata does not apply in removal proceedings involving aggravated felons (hereinafter "removal proceedings"). Matter of Jasso Arangure , 27 I. & N. Dec. 178, 186 (BIA 2017).

Now Jasso appeals to this court. His appeal raises three issues: (1) whether the doctrine of res judicata applies in removal proceedings (which requires an assessment of whether the Board's conclusion is entitled to Chevron deference); (2) if res judicata does apply, whether the elements are met here such that the second removal proceeding is barred; and (3) if res judicata does not bar the second removal proceeding, whether it was right on the merits (i.e., whether Jasso's home-invasion conviction qualifies as a "burglary offense" under the INA). We have jurisdiction to review the questions of law raised in Jasso's petition, 8 U.S.C. § 1252(a)(2)(D), and do so de novo, Sad v. INS , 246 F.3d 811, 814 (6th Cir. 2001).

II.

Res judicata "preclude[s] parties from contesting matters that they have had a full and fair opportunity to litigate." Montana v. United States , 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). While there are two types of res judicata—issue preclusion and claim preclusion, Taylor v. Sturgell , 553 U.S. 880, 892, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008) —only claim preclusion is relevant here. Claim preclusion prevents a party from litigating matters that should have been raised in an earlier case but were not. Id. Jasso argues that claim preclusion should have barred the second removal proceeding against him. The INA does not specify whether res judicata governs removal proceedings, so Jasso relies on the common-law presumption canon: courts presume that general statutory language incorporates common-law principles—like res judicata—unless there is a clear indication to the contrary. Astoria Fed. Sav. & Loan Ass'n v. Solimino , 501 U.S. 104, 108, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). The Board rejected this argument below, concluding that res judicata does not apply in removal proceedings because of "Congress' clear intent to remove criminal aliens." Matter of Jasso , 27 I. & N. Dec. at 183. On appeal, the government argues that the Board's interpretation is entitled to deference. See Chevron , 467 U.S. at 844, 104 S.Ct. 2778.

A.

The Board is eligible for Chevron deference when it interprets the INA. Negusie v. Holder , 555 U.S. 511, 516–17, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009). But eligibility is not entitlement. Courts must assess whether an agency is actually entitled to Chevron deference through a two-part test. City of Arlington v. FCC , 569 U.S. 290, 296, 133 S.Ct. 1863, 185 L.Ed.2d 941 (2013) (citing Chevron , 467 U.S. at 842–43, 104 S.Ct. 2778 ). First, courts must determine whether the statute is ambiguous, "applying the ordinary tools of statutory construction." ² Id. If the statute is

911 F.3d 338

unambiguous, then the court applies it as-written; "that is the end of the matter." Id. If the statute is ambiguous, however, then the court moves to step two: defer to the agency's construction if it is "permissible"—i.e., "within the bounds of reasonable interpretation." Id.

Chevron 's first step is grounded in a recognition that "[t]he judiciary is the final authority on issues of statutory construction." Chevron , 467 U.S. at 843 n.9, 104 S.Ct. 2778. This means courts must do their best to determine the statute's meaning before giving up, finding ambiguity, and deferring to the agency. When courts find ambiguity where none exists, they are abdicating their judicial duty. Cf. Kent Barnett & Christopher J. Walker, Chevron in the Circuit Courts , 116 Mich. L. Rev. 1, 33–34 (2017) (concluding that circuit courts find ambiguity at Chevron step one 70% of the time, based on a sample of over 1,000 cases). This abdication by ambiguity impermissibly expands an already-questionable Chevron doctrine.³ See Voices for Int'l Bus. & Educ., Inc. v. NLRB , 905 F.3d 770, 780–81 (2018) (Ho, J., concurring) ("Finding ambiguity where it does not exist—granting deference where it is not warranted ... misuse[s] Chevron " and "abrogates separation of powers without even the fig leaf of Congressional authorization."). Unsurprisingly, when courts neglect their duty, the Supreme Court has not hesitated to reverse. See, e.g. , Pereira , 138 S.Ct. at 2113–14 ("[T]he Court need not resort to Chevron deference, as some lower courts have done, for Congress has supplied a clear and unambiguous answer to the interpretive question at hand."); id. at 2120 (Kennedy, J., concurring) (chiding lower courts for "engag[ing] in cursory analysis" in Chevron step one and rushing to "reflexive deference"); Kingdomware Techs., Inc. v. United States , ––– U.S. ––––, 136 S.Ct. 1969, 1979, 195 L.Ed.2d 334 (2016) (reversing lower court's Chevron -based decision because the statute was unambiguous); United States v. LaBonte , 520 U.S. 751, 762, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997) (same). In short, Chevron 's first step is not a free pass.

Thus, we must faithfully apply the "traditional tools of statutory construction" before concluding that the INA is ambiguous. Chevron , 467 U.S. at 843 n.9, 104 S.Ct. 2778. That starts with an analysis of the statutory text. But here, the INA's text is silent as to res judicata. Silence, however, does not necessarily connote ambiguity, nor does it automatically mean that a court can proceed to Chevron step two. See ...