                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 18a0272p.06

                 UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT



 RAMON JASSO ARANGURE,                                 ┐
                                         Petitioner,   │
                                                       │
                                                        >      No. 18-3076
       v.                                              │
                                                       │
                                                       │
 MATTHEW G. WHITAKER, Acting Attorney General,         │
                                     Respondent.       │
                                                       ┘

              On Petition for Review from the Board of Immigration Appeals;
                                   No. A 056 333 337.

                                Argued: November 27, 2018

                          Decided and Filed: December 18, 2018

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

                                    _________________

                                        COUNSEL

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.
 No. 18-3076                             Jasso Arangure v. Whitaker                                Page 2


                                             _________________

                                                   OPINION
                                             _________________

       THAPAR, Circuit Judge. Courts have always had an “emphatic[]” duty “to say what the
law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (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 (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).

       1In   his brief, Ramon Jasso Arangure refers to himself as Jasso, so we do the same.
 No. 18-3076                         Jasso Arangure v. Whitaker                              Page 3


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.

         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 (1979). While there are
two types of res judicata—issue preclusion and claim preclusion, Taylor v. Sturgell, 553 U.S.
880, 892 (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
 No. 18-3076                              Jasso Arangure v. Whitaker                                          Page 4


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 (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.

                                                          A.

         The Board is eligible for Chevron deference when it interprets the INA. Negusie v.
Holder, 555 U.S. 511, 516–17 (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 (2013) (citing Chevron, 467 U.S. at 842–43). First, courts
must determine whether the statute is ambiguous, “applying the ordinary tools of statutory
construction.”2 Id. If the statute is 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. 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




         2The   Chevron Court said that statutory silence also triggers deference. 467 U.S. at 843. But Chevron’s
theory of implicit delegation only applies to certain kinds of silences—those where we can plausibly infer Congress
intentionally left a statutory gap for the agency to fill. Id. at 843–44. As discussed below, that is not the silence at
issue in this case. Here, it is statutory silence in the face of existing common law.
 No. 18-3076                            Jasso Arangure v. Whitaker                                     Page 5


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, 136 S. Ct. 1969, 1979 (2016) (reversing lower
court’s Chevron-based decision because the statute was unambiguous); United States v. LaBonte,
520 U.S. 751, 762 (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. 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 Ry. Labor Execs.’ Ass’n v. Nat’l Mediation Bd., 29 F.3d 655,
671 (D.C. Cir. 1994) (en banc).             “[L]egal interpretation [is] more than just a linguistic
exercise”—it includes the canons. Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts xxvii (2012). Canons are general background principles that courts
have developed over time to guide statutory interpretation—the “interpretive rules of the road.”
Kavanaugh, supra, at 2121; see also Black’s Law Dictionary (10th ed. 2014).

        The common-law presumption canon is at issue here. Under this canon, courts presume
that general statutory language incorporates established common-law principles (like res

        3Many   members of the Supreme Court have called Chevron into question. See Pereira v. Sessions, 138 S.
Ct. 2105, 2121 (2018) (“Given the concerns raised by some Members of this Court . . . it seems necessary and
appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have
implemented that decision.”) (Kennedy, J., concurring) (internal citations omitted) (citing City of Arlington,
569 U.S. at 327 (Roberts, C.J., dissenting); Michigan v. EPA, 135 S. Ct. 2699, 2712–14 (2015) (Thomas, J.,
concurring); Gutierrez–Brizuela v. Lynch, 834 F.3d 1142, 1149–58 (10th Cir. 2016) (Gorsuch, J., concurring)); see
also Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2144, 2153–54 (2016) (book
review) (advocating for courts to strive for the “best reading” of a statute rather than find ambiguity).
 No. 18-3076                       Jasso Arangure v. Whitaker                             Page 6


judicata) unless “a statutory purpose to the contrary is evident.” Astoria, 501 U.S. at 108
(quoting Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952)). If this canon applies here, then
there is no ambiguity, and Jasso is correct that res judicata governs removal proceedings. But if
the canon does not apply, then the INA is ambiguous, and Chevron deference would resolve the
statute’s silence against Jasso.     Thus, we must first address whether the common-law
presumption canon is a “traditional tool” that applies in step one. If it is, then the INA is not
ambiguous despite its silence, and no Chevron deference is needed.

                                                B.

       Unfortunately, the Supreme Court has never explicitly described which canons are
“traditional tools” and which are not. Thus, “[t]he relationship between Chevron deference and
the canons . . . remains ‘one of the most uncertain aspects of the Chevron doctrine.’” Caleb
Nelson, Statutory Interpretation and Decision Theory, 74 U. Chi. L. Rev. 329, 347 (2007) (book
review) (quoting Curtis A. Bradley, Chevron Deference and Foreign Affairs, 86 Va. L. Rev. 649,
675 (2000)); see also Abbe R. Gluck, What 30 Years of Chevron Teach us About the Rest of
Statutory Interpretation, 83 Fordham L. Rev. 607, 618–19 (2014). This lack of instruction has
led to some uncertainty in the lower courts. Compare Valenzuela Gallardo v. Lynch, 818 F.3d
808, 816 (9th Cir. 2016) (“[T]he canon of constitutional avoidance is highly relevant at Chevron
step one.” (internal quotation marks omitted)), with Olmos v. Holder, 780 F.3d 1313, 1321 (10th
Cir. 2015) (“[T]he canon of constitutional avoidance does not bear on our inquiry at [Chevron]
step one.”); compare Rancheria v. Jewell, 776 F.3d 706, 713 (9th Cir. 2015) (“[A]n agency’s
legal authority to interpret a statute appears to trump any practice of construing ambiguous
statutory provisions in favor of Indians.”), with Cobell v. Norton, 240 F.3d 1081, 1100–01 (D.C.
Cir. 2001) (opposite). But this uncertainty has a solution. Though the Supreme Court has not
explicitly described which canons qualify as “traditional tools,” it has decided a number of cases
that provide a good outline to guide the analysis.

       The Supreme Court has repeatedly applied canons at step one. See, e.g., Epic Sys. Corp.
v. Lewis, 138 S. Ct. 1612, 1617, 1625–30 (2018) (ejusdem generis, expressio unius, and the
presumption against implied repeals); Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S.
644, 666 (2007) (presumption against implied repeals); INS v. St. Cyr, 533 U.S. 289, 319 n.45
 No. 18-3076                            Jasso Arangure v. Whitaker                                      Page 7


(2001) (presumption against retroactivity); Solid Waste Agency of N. Cook Cty. v. U.S. Army
Corps of Eng’rs, 531 U.S. 159, 172–73 (2001) (constitutional avoidance canon and presumption
against preemption); Nat’l Credit Union Admin. v. First Nat’l Bank & Tr. Co., 522 U.S. 479,
501–02 (1998) (presumption of consistent usage); Dole v. United Steelworkers of Am., 494 U.S.
26, 35–36, 42–43 (1990) (noscitur a sociis); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg.
& Const. Trades Council, 485 U.S. 568, 574–75 (1988) (constitutional avoidance canon). These
cases suggest canons are “traditional tools” of statutory interpretation that take precedence over
Chevron deference. Indeed, the Court has come close to saying exactly that. St. Cyr, 533 U.S. at
320 n.45 (“Because a statute that is ambiguous with respect to retroactive application is
construed under our precedent to be unambiguously prospective . . . there is, for Chevron
purposes, no ambiguity in such a statute for an agency to resolve.” (internal citation omitted)).
And recently, the Supreme Court flatly stated: if “the canons supply an answer, ‘Chevron leaves
the stage.’” Epic, 138 S. Ct. at 1630 (quoting NLRB v. Alt. Entm’t, Inc., 858 F.3d 393, 417 (6th
Cir. 2017) (Sutton, J., concurring in part and dissenting in part)). One commentator surveyed the
relevant precedent and deemed the Court’s approach “Canons Trump Deference.” Kenneth A.
Bamberger, Normative Canons in the Review of Administrative Policymaking, 118 Yale L.J. 64,
77 (2008); see also Caleb Nelson, Statutory Interpretation 729–33 (1st ed. 2010). It seems that
the Court has a “canons first” rule, even if it has not said so explicitly.4

        Several reasons support the idea that canons belong in Chevron step one. First and
foremost, canons can assist a court in determining a statute’s meaning. Caleb Nelson, What is
Textualism?, 91 Va. L. Rev. 347, 383–86 (2005). Canons that serve this goal can be thought of
as “descriptive”—in contrast to “normative” canons that are instead designed to favor certain
substantive policies. Id. at 393–94; see also Black’s Law Dictionary (10th ed. 2014); Jonathan
D. Urick, Note, Chevron and Constitutional Doubt, 99 Va. L. Rev. 375, 409 (2013). Within the

        4The     Supreme Court has not expressly addressed the hierarchy between canons in the Chevron analysis
(or outside it), i.e., which canons lower courts should consider before others. And the legitimacy of some canons
has been called into question. For instance, then-Professor Amy Coney Barrett developed thoughtful arguments for
why some canons are more consistent with the judicial role. And she suggests other canons should be avoided
altogether. See generally Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109
(2010). In this case, the parties have not asked us to consider the legitimacy of the canons—and for good reason.
The proper court to evaluate the legitimacy of canons is the Supreme Court. Given the appropriate opportunity, the
Court should consider Judge Barrett’s thoughtful critique.
 No. 18-3076                        Jasso Arangure v. Whitaker                              Page 8


family of descriptive canons, linguistic canons are the strongest species. These canons simply
“reflect[] accepted notions of diction, grammar, and syntax.” Black’s Law Dictionary (10th ed.
2014). Examples include the expressio unius canon (the expression of one thing implies the
exclusion of others); the general/specific canon (a specific provision prevails over a general one
if the two are in conflict); and the presumption of consistent usage (“Courts presume that the
same words in the same statute mean the same thing.”). In re Jackson Masonry, LLC, 906 F.3d
494, 501 (6th Cir. 2018); Scalia & Garner, supra, §§ 10, 25, 28. These are all just “ordinary
principles that laymen as well as lawyers use to interpret communications.” Nelson, What is
Textualism, supra, at 383. Accordingly, linguistic canons are just specific applications of the
basic goal of interpretation: finding the ordinary meaning of statutory text. These canons clearly
and exclusively serve descriptive, rather than normative, purposes. Therefore, they belong in
step one, which has the same goal: determining the meaning of the statute. Chevron, 467 U.S. at
842–43. On this, there is broad agreement. See Cass R. Sunstein, Law and Administration After
Chevron, 90 Colum. L. Rev. 2071, 2120 (1990) (“When the relevant interpretive norm is part of
an effort to discern legislative instructions, Chevron is uncontroversially subordinate to that
norm.”).

       Canons based on legislative practice rather than linguistics can also be viewed as
descriptive. When the statute’s text (as interpreted using linguistic canons) provides no clear
answer to an interpretive question, courts presume that the legislature intends to follow its typical
patterns of behavior. Nelson, What is Textualism, supra, at 389. These canons operate like
default rules for interpreting contracts.    For example, the reenactment canon:        if Congress
amends or reenacts a provision, a significant change in language is presumed to entail a change
in meaning. Scalia & Garner, supra, § 40. The presumption against retroactivity is another
example: based on longstanding historical practice and assumptions about our constitutional
order, courts presume that legislation is not meant to cover events that occurred before its
enactment. Id. at § 41. To the extent these sorts of canons have descriptive value, that is a
sufficient basis for putting them in Chevron’s first step.

       Descriptive value, however, may be an insufficient explanation for why the Court has
consistently applied these legislative-practice canons in step one. To start, such canons are on
 No. 18-3076                       Jasso Arangure v. Whitaker                              Page 9


less solid descriptive footing than their linguistic counterparts.       See Sunstein, Law and
Administration, supra, at 2109–10.         For instance, the canon of constitutional avoidance
“[p]erhaps . . . was originally based[] on a genuine assessment of probable meaning” but “[a]
more plausible basis for the rule is that it represents judicial policy . . . that courts should
minimize the occasions on which they confront and perhaps contradict the legislative branch.”
Scalia & Garner, supra, § 38; see also Kavanaugh, supra, at 2145–49 (arguing that the
constitutional avoidance canon should be “jettisoned” entirely). But see Urick, supra, at 376
(arguing that the constitutional avoidance canon should be deployed before Chevron deference
based on a textualist account of the canon “rooted in historical practice”). Second, to the extent
these canons have descriptive value, it is often hard to disentangle their descriptive motivations
from their normative ones. See, e.g., Nelson, What is Textualism, supra, at 395 n.143 (noting
that the presumption against retroactivity “is partly descriptive, but normative judgments about
the unfairness of retroactive legislation probably give it some extra force”). So, for these canons,
their potential descriptive value may be insufficient, standing alone, to justify deploying them in
step one. Nonetheless, the Supreme Court has repeatedly invoked them there. See, e.g., Solid
Waste Agency, 531 U.S. at 172–73 (constitutional avoidance canon and presumption against
preemption); St. Cyr, 533 U.S. at 319 n.45 (presumption against retroactivity); DeBartolo Corp.,
485 U.S. at 574–75 (constitutional avoidance canon). To understand why, we need to consider
the justifications for Chevron deference itself. (Justifications that, for the sake of argument, are
taken as a given. But see supra note 3.)

       One purported rationale for Chevron deference is that agencies are more likely to get the
answer right, given their expertise. Chevron, 467 U.S. at 844–45, 865. But many canons reverse
that rationale: courts are more likely to get the answer right. For instance, canons often call for
an analysis of the statute as a whole in light of some other source of legal authority (common
law, other statutes, or the Constitution). Courts are better equipped and more experienced than
agencies in answering these types of questions. See Epic, 138 S. Ct. at 1629 (applying the
presumption against implied repeals at Chevron step one because “the ‘reconciliation’ of distinct
statutory regimes ‘is a matter for the courts,’ not agencies” (quoting Gordon v. N.Y. Stock Exch.
Inc., 422 U.S. 659, 685–86 (1975))). And these questions are far afield from the prototypical
Chevron situation: an agency’s application of law to fact. See INS v. Cardoza-Fonseca, 480
 No. 18-3076                        Jasso Arangure v. Whitaker                              Page 10


U.S. 421, 446–48 (1987) (stating that whether two statutory standards are identical “is a pure
question of statutory construction for the courts to decide . . . quite different from the question of
interpretation that arises in each case in which the agency is required to apply either or both
standards to a particular set of facts”). In short, courts, not agencies, are the true experts in
applying many of the canons.

       Another rationale for Chevron deference is that statutory ambiguities are an implicit
delegation to agencies.     Chevron, 467 U.S. at 843–44.        In contrast, many canons can be
understood to represent important choices that Congress generally does not delegate to agencies
and instead must answer for itself—“nondelegation canons.” Cass R. Sunstein, Nondelegation
Canons, 67 U. Chi. L. Rev. 315, 330 (2000); see also Sunstein, Law and Administration, supra,
at 2111–15. These canons require a clear statement from Congress if it wants to impair certain
fundamental values derived from the Constitution or “time-honored notions of equity and
comity.” Sunstein, Law and Administration, supra, at 2114; see, e.g., St. Cyr, 533 U.S at 316
(“Requiring clear intent [that legislation be retroactive] assures that Congress itself has
affirmatively considered the potential unfairness of retroactive application and determined that it
is an acceptable price to pay for the countervailing benefits.” (quoting Landgraf v. USI Film
Prods., 511 U.S. 244, 272–73 (1994))). In other words, the presumption against retroactivity
means that Congress must make the ultimate choice on whether a statute will apply
retroactively—either by explicitly saying “yes” or, through silence, implicitly saying “no.”
Silence in this situation is a congressional choice, not a delegation to the agency. Accordingly,
the Supreme Court has applied these “nondelegation canons” at step one to cabin agency
discretion.

       In sum, it is unsurprising that the Court has repeatedly applied canons in step one of the
Chevron framework. Canons can (i) be useful tools in assessing statutory meaning, (ii) require
analysis that courts are better at, and (iii) protect fundamental constitutional or historical values.
Most well-established canons have at least one of these characteristics, and many combine
several of them. But, as tempting as a simple rule might be, we cannot say that all canons belong
in step one. A canon that reflects a pure policy judgment (i.e., of limited-to-no-descriptive
value) that is well within an agency’s wheelhouse might not belong there, at least under current
 No. 18-3076                        Jasso Arangure v. Whitaker                             Page 11


precedent. (Nor would it belong anywhere in a textualist’s interpretive process, for that matter.)
Still, these canons should be viewed as the exception, not the rule. Based on the Court’s
precedent, most canons are “traditional tools” of statutory interpretation that should be deployed
in Chevron step one.

                                                 C.

         The common-law presumption canon qualifies as a “traditional tool” of statutory
interpretation. This canon presumes that the existing common law still applies unless the statute
clearly indicates otherwise. United States v. Texas, 507 U.S. 529, 534 (1993); see also Scalia &
Garner, supra, § 52. It is more descriptive than normative. The canon is not based on a
normative judgment that the common law is better as a matter of policy. Rather, it is based on a
descriptive judgment: Congress legislates against a common-law backdrop and presumably does
not intend to reject that backdrop with general statutory language. See Astoria, 501 U.S at 108
(“Courts do not, of course, have free rein to impose rules of preclusion, as a matter of policy[;]”
instead “the question is . . . whether it is intended by the legislature.”) Indeed, it is hard to
imagine an interpretive “tool” more “traditional” than the centuries-old common-law
presumption. See Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. (7 Cranch) 603, 623 (1812)
(“The common law, therefore, ought not to be deemed to be repealed, unless the language of a
statute be clear and explicit for this purpose.”); see also Riggs v. Palmer, 115 N.Y. 506, 511
(1889) (“[A]ll laws, as well as all contracts, may be controlled in their operation and effect by
general, fundamental maxims of the common law.”). Finally, the canon calls for an analysis that
courts are well-equipped to undertake: examining a common-law doctrine (and the reasons for
it) and seeing whether it fits within the overall structure of a statute. In sum, the principles
underlying the Court’s general “canons first” approach apply to the common-law presumption
canon.

         Thus, unsurprisingly, the common-law presumption is analogous to other canons that the
Court has applied in Chevron step one. The presumption against implied repeals is one example.
See, e.g., Epic, 138 S. Ct. at 1629. Courts presume that a statute does not repeal a prior statute in
the same way (and for many of the same reasons) they presume that it does not displace the
common law. See Scalia & Garner, supra, § 52. Likewise, the specific variant of the canon at
 No. 18-3076                       Jasso Arangure v. Whitaker                             Page 12


issue here—the presumption that res judicata applies—implicates similar fairness and reliance
concerns to the presumption against retroactivity.      The presumption against retroactivity is
“deeply rooted in our jurisprudence” because “[e]lementary considerations of fairness dictate
that individuals should have an opportunity to know what the law is and to conform their conduct
accordingly; settled expectations should not be lightly disrupted.” St. Cyr, 533 U.S. at 316
(quoting Landgraf, 511 U.S. at 265). In the same way, a concluded case tells the parties how the
law applies to them, “settl[ing] expectations” and permitting them to “conform their conduct
accordingly.” Id. Thus, in most instances it is disruptive and unfair to revive a case that has
already finished. Res judicata helps avoid this outcome. See Federated Dep’t Stores, Inc. v.
Moitie, 452 U.S. 394, 401 (1981) (“This Court has long recognized that . . . those who have
contested an issue shall be bound by the result of the contest, and that matters once tried shall be
considered forever settled as between the parties . . . [this is] a rule of fundamental and
substantial justice.”). For all of these reasons, the common-law presumption canon is a perfect
fit for Chevron step one.

                                                D.

       Applying the common-law presumption canon renders the INA unambiguous on the
question this case presents. 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.” Astoria, 501 U.S. at 108 (quoting
Isbrandtsen, 343 U.S. at 783). Congress must make the contrary statutory purpose clear, either
through explicit text or through an obvious inference from the statute’s structure.

       Two cases illustrate what it takes to override the common-law presumption of res
judicata. First, in Astoria, the Court found that Congress overrode the presumption in the Age
Discrimination in Employment Act. Id. at 112–14; see 29 U.S.C. § 621 et seq. The Act required
plaintiffs to exhaust state administrative remedies before filing a complaint in federal court.
29 U.S.C. § 633(b). The Court concluded that, if these administrative findings were given res
judicata effect, later federal proceedings “would be strictly pro forma.” Id. at 111. State winners
would not file in federal court because they already got what they wanted, and state losers would
have their federal cases summarily dismissed because of res judicata. Id. Interpreting the
 No. 18-3076                              Jasso Arangure v. Whitaker                                       Page 13


statute’s exhaustion requirement in this way would violate the presumption against superfluity—
rendering the federal right of action a nullity. Id. at 112.

         A more recent case provides a good counterexample: B&B Hardware, Inc. v. Hargis
Indus., 135 S. Ct. 1293 (2015). There, the Court concluded that res judicata principles apply to
decisions of the Trademark Trial and Appeal Board (“Trademark Board”), an administrative
body that adjudicates trademark registration disputes under the Lanham Act. Id. at 1299–300.
The Court concluded that nothing in the text or structure of the statute overrode the presumption
that common-law res judicata principles apply. Id. at 1305–06. Unlike the statute in Astoria, the
Lanham Act does not make Trademark Board suits a prerequisite to federal claims. So giving
preclusive effect to Trademark Board decisions would not render federal suits “strictly pro
forma.” Id. at 1305 (quoting Astoria, 501 U.S. at 111).                      The court also rejected a more
generalized policy argument that res judicata would lead to increased Trademark Board litigation
that would “bog[] down the [trademark] registration process.” Id. at 1306.5

         This case is more like B&B Hardware than Astoria. The immigration courts are a
replacement, not a prerequisite, for a full adjudication in Article III courts. Removal proceedings
are “plainly adjudicatory in character”—something the government does not seriously dispute.
See Duvall v. Att’y Gen. of U.S., 436 F.3d 382, 390 (3d Cir. 2006). And finding that res judicata
applies would not violate the presumption against superfluity: the government does not point to
any provision that would be rendered a nullity or any other structural problems that res judicata
would create.       In fact, if anything, the INA’s structure militates against the government’s
argument.      DHS’s burden of proof in each removal proceeding—“clear and convincing”
evidence—would be rendered “largely meaningless” if DHS could repeatedly bring one
proceeding after another until it got the result it wanted.                        See id. at 387–88 (citing
8 U.S.C. § 1229a(b), (c)).

         The government relies primarily on “the express intent of Congress to remove criminal
noncitizens convicted of aggravated felony offenses,” which purportedly means that Congress

         5Because  Jasso’s case concerns the preclusive effect of an administrative judgment on a subsequent
administrative proceeding, rather than on a subsequent federal court proceeding, it does not implicate the Article III
concerns expressed by the B&B Hardware dissenters. 135 S. Ct. at 1316 (Thomas, J., dissenting).
 No. 18-3076                              Jasso Arangure v. Whitaker                                       Page 14


would disfavor any obstacle to that goal, such as res judicata. Respondent Br. at 3–4.6 This
argument illustrates the problems with purposivism; it suggests courts can simply ignore the
enacted text and instead attempt to replace it with an amorphous “purpose” that happens to
match with the outcome one party wants. But that has no limiting principle. Indeed, the
government’s argument here would make the common-law presumption meaningless. Congress
always wants the statutes it passes to be enforced, and res judicata could always be construed as
an obstacle to that goal.           So the government’s argument proves too much.                        And more
fundamentally, statutes are motivated by many competing—and often contradictory—purposes.
Congress addresses these purposes by negotiating, crafting, and enacting statutory text. It is that
text that controls, not a court’s after-the-fact reevaluation of the purposes behind it.

         In this case, the Chevron analysis begins and ends with step one. The common-law
presumption of res judicata makes the INA unambiguous. Res judicata doctrine applies in
removal proceedings.7

                                                         III.

         The next question is whether res judicata—in this case claim preclusion—bars the second
removal proceeding against Jasso.              A party invoking claim preclusion must show a prior
proceeding (1) litigated to a final judgment (2) arising out of the same factual occurrence as the
current proceeding (3) involving the same parties (4) where the non-moving party could have
raised the claim at issue. Wheeler v. Dayton Police Dep’t, 807 F.3d 764, 766 (6th Cir. 2015).




         6In   making this argument, the government references the Fourth Circuit’s decision in Johnson v.
Whitehead, 647 F.3d 120, 129 (4th Cir. 2010). That case arguably held that res judicata does not apply in removal
proceedings, though it dealt specifically with issue preclusion rather than claim preclusion, and its holding may have
been limited to the facts before it. Id. To the extent the Johnson court’s conclusion is inconsistent with ours, we
respectfully reject it. In our view, that court did not fully consider the role of canons in the Chevron framework, and
its analysis focused too much on the purposes behind the INA rather than the statute’s text and structure.
         7  The government also argues that res judicata is an “extra procedural device[]” that agencies can use, or
not use, at their discretion. See Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519,
546 (1978). But the Astoria line of cases makes it clear that the application of res judicata is a matter of statutory
interpretation, not agency choice. See Channer v. DHS, 527 F.3d 275, 279–80 (2d Cir. 2008); Duvall, 436 F.3d at
389. For the same reason, we need not reach Jasso’s arguments for res judicata based on the immigration rule of
lenity and the Due Process Clause. See Duvall, 436 F.3d at 387 (rejecting a similar due process-based argument).
 No. 18-3076                       Jasso Arangure v. Whitaker                           Page 15


       The government apparently does not dispute the latter two elements, and they are clearly
met here. DHS and Jasso were the parties in both removal proceedings, and in the first removal
proceeding DHS could have argued that Jasso’s conviction was a “burglary offense” instead of,
or in addition to, a “crime of violence.” 8 U.S.C. § 1101(a)(43)(F)–(G). The parties only dispute
whether the two proceedings arose out of the same factual occurrence and whether the second
proceeding was litigated to a final judgment on the merits.

       Factual occurrence.     Here, in both the first and second removal proceedings, DHS
claimed that Jasso was removable because of the same underlying fact: his Michigan home-
invasion conviction. In arguing to the contrary, the government equates the underlying factual
occurrence with the legal claims asserted based on it. True, in Jasso’s first removal proceeding
DHS argued that the conviction was a “crime of violence” rather than a “burglary offense.” Id.
But the two different statutory subsections were “two different theories of the case arising from
the same factual situation”—the “precise” circumstances covered by claim preclusion. Wilkins v.
Jakeway, 183 F.3d 528, 535 (6th Cir. 1999) (citing Restatement (Second) of Judgments §§ 24, 25
cmts. a, d). Further, it does not matter that the two theories relied on different aspects of the
facts (whether Jasso’s conviction met the generic burglary definition versus whether it qualified
as a “crime of violence”). Practically speaking, any two different legal theories will emphasize
different aspects of the same facts or rely on some factual details rather than others. But a
party’s “different shading[] of the facts” does not create two separate factual occurrences for
claim preclusion. See Talismanic Props., LLC v. City of Tipp City, 742 F. App’x 129, 132 (6th
Cir. 2018). Other circuits addressing claim preclusion in removal proceedings have taken the
same view. See, e.g., Duhaney v. Att’y Gen. of U.S., 621 F.3d 340, 350 (3d Cir. 2010) (“[T]he
relevant factual occurrence is the conviction or convictions giving rise to a charge of
removability.”); Channer, 527 F.3d at 281. And indeed, a narrower view would make claim
preclusion practically impossible to prove.

       The government contends that several practical problems would arise from applying res
judicata to removal proceedings.      But these supposed problems all stem from a further
misunderstanding of the factual occurrence. In a removal proceeding based on an “aggravated
felony” under 8 U.S.C. § 1227(a)(2)(A)(iii), the factual occurrence is only the conviction (or
 No. 18-3076                          Jasso Arangure v. Whitaker                               Page 16


convictions) that DHS chooses to raise. Thus, DHS does not have to “obtain all the conviction
records for every conviction” and “bring all possible charges in connection with a single
proceeding.” Respondent Br. at 26. Rather, res judicata merely requires that DHS marshal all
the legal arguments it intends to make based on the convictions it has raised. If DHS loses, claim
preclusion bars it from trying again with different legal arguments. But DHS is not prevented
from trying again based on different convictions (i.e., different factual occurrences), even if those
convictions could have been raised in the first proceeding. Cf. 8 C.F.R. § 1003.30 (“At any time
during deportation or removal proceedings, additional or substituted charges of deportability
and/or factual allegations may be lodged by [DHS] in writing.” (emphasis added)).                   And
obviously, if a noncitizen is convicted of a new crime, claim preclusion would not bar a new
removal proceeding based on that new conviction. DHS’s doomsday predictions would only be
true if the factual occurrence was “whether the immigrant is removable on any ground.” But
claim preclusion is not applied at such an abstract level.

          Since Jasso’s first and second removal proceedings arose out of the same conviction for
Michigan first-degree home invasion, the proceedings arose out of the same factual occurrence.

          Finality. Jasso meets three of the elements of claim preclusion, so this case comes down
to the fourth: whether the first removal proceeding was litigated to a final judgment on the
merits.

          A final judgment on the merits is one “that signifies the ‘death knell’ of the litigation . . .
permanently foreclos[ing] a party” from trying again. Mitchell v. Chapman, 343 F.3d 811, 821–
22 (6th Cir. 2003) (citation omitted). Indeed, since a decision may address the merits but still not
have that effect, the Supreme Court has suggested that the “on the merits” language in the classic
formulation of claim preclusion is misleading. Semtek Int’l Inc. v. Lockheed Martin Corp.,
531 U.S. 497, 501–03 (2001). What really matters is the effect of the judgment. And, critically
here, a judgment dismissing a case “without prejudice” is not truly “final.” Generally speaking,
a dismissal “without prejudice” means “a dismissal without barring the plaintiff from returning
later, to the same court, with the same underlying claim.” Id. at 505; see also Restatement
(Second) of Judgements § 20(1)(b). Such a judgment does not “permanently foreclose[]” a
litigant from trying again, so it is not sufficiently “final” to be given res judicata effect.
 No. 18-3076                        Jasso Arangure v. Whitaker                              Page 17


See Mitchell, 343 F.3d at 821–22; see also Johnson v. De Grandy, 512 U.S. 997, 1005 (1994)
(rejecting res judicata for a state court judgment rendered “without prejudice to the right” of any
future claimant to sue).

        Here, the effect of the first judgment is unclear. The written order itself simply stated
that the charge of removability “[wa]s not sustained” and the proceeding was “terminated.” AR
41 (emphasis removed). The order did not explain whether the termination was with or without
prejudice. But, at the hearing immediately before the order was issued, the Immigration Judge
purported to clear up any ambiguity. Reviewing a draft of the order, counsel for DHS asked the
judge whether it was a “termination without prejudice” and noted that he was contemplating
“other potential charges.” AR 133–34. The judge responded:

        It is without prejudice. It is only an analysis of the charge as originally presented.
        So the Government is in its normal position at this point. If there are other
        charges of removability that the Government wishes to prefer, it may do so.

Id. at 134; see also id. at 135–37. But on appeal, the Board simply assumed for the sake of
argument that the termination was with prejudice. Matter of Jasso, 27 I&N Dec. at 179 n.3.
Because of this posture, the parties did not fully address the finality of the first termination in
their briefs before this court.

        At oral argument, counsel for Jasso claimed that the Immigration Judge lacked the
authority to terminate the first removal proceeding without prejudice. He relied primarily on
Matter of S-O-G & F-D-B-, a decision issued after the briefs had been filed. 27 I&N Dec. 462
(A.G. 2018). But we read Matter of S-O-G differently. It held that immigration judges can only
terminate removal proceedings in specific circumstances delineated by the relevant statutes and
regulations, but it did not specifically address their authority to make those terminations with or
without prejudice. Id. at 462. Though some of the decision’s reasoning could support Jasso’s
reading, it did not squarely address the key issue for this appeal.

        Given the Board’s avoidance of this issue and the limited briefing, we are unable to
decide whether the first removal proceeding against Jasso was litigated to a final judgment.
Consequently, we cannot conclude whether the requirements for claim preclusion have been met.
 No. 18-3076                       Jasso Arangure v. Whitaker                           Page 18


                                        *       *      *

       The outcome of this case depends on whether claim preclusion applies.             And the
application of claim preclusion depends on whether the first removal proceeding was dismissed
with or without prejudice—an issue unclear from the record before us and never addressed by
the Board. Therefore, the appropriate course is to remand so that the Board can consider it in the
first instance. See Ruiz-Del-Cid v. Holder, 765 F.3d 635, 641–42 (6th Cir. 2014). Accordingly,
we VACATE the decision of the Board and REMAND for further proceedings consistent with
this opinion.
