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: