Guevara v. Gonzales, 04-60685.
| Decision Date | 19 May 2006 |
| Docket Number | No. 04-60685.,04-60685. |
| Citation | 450 F.3d 173 |
| Parties | Marcelo GUEVARA, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Before KING, SMITH and BENAVIDES, Circuit Judges.
Marcelo Guevara ("Guevara") petitions for review of an order of the Board of Immigration Appeals ("BIA"). The procedural history of this immigration case is somewhat lengthy. Subsequent to the BIA's initial decision affirming the immigration judge's ("IJ") order of removal, Guevara successfully moved to reopen, and the BIA terminated the removal proceedings. Approximately two and a half years later, the respondent, the Department of Homeland Security ("DHS") successfully moved the BIA to reconsider. Guevara now appeals that order. In DHS's motion to reconsider before the BIA, it argued that the BIA did not have jurisdiction to grant Guevara's motion to reopen because he had been deported. The principal issue before us is whether DHS's motion to reconsider is part of a direct review of the order or a collateral attack. Concluding that the motion to reconsider constitutes a collateral jurisdictional attack on the BIA's decision, it is barred by res judicata.
In 1999, the BIA affirmed the IJ's decision finding Guevara removable as an alien convicted of an aggravating felony—driving while under the influence. It is undisputed that Guevara was removed from the United States in February of 2001. On March 1, 2001, this Court held that the Texas felony of driving while intoxicated was not a "crime of violence" and thus not an aggravated felony. United States v. Chapa-Garza, 243 F.3d 921 (5th Cir.2001). Relying on Chapa-Garza, Guevara filed a motion to reopen the removal proceedings, terminate proceedings, and reinstate lawful permanent resident status on October 9, 2001. On November 2, 2001, the BIA granted the motion based on the change in the law, vacated the removal order, and terminated the proceedings in the case.
DHS filed no response to either Guevara's motion to reopen or the BIA's decision until approximately two and a half years later. On March 30, 2004, DHS filed a motion to reconsider, raising the sole argument that, because Guevara had already been removed, the BIA was without jurisdiction to reopen Guevara's removal proceedings and requested reinstatement of the removal order. DHS did not serve Guevara's counsel with this motion.
On July 13, 2004, the BIA granted DHS's motion to reconsider and, citing Matter of G-N-C, 22 I & N Dec. 281 (BIA 1998), concluded it had been without jurisdiction to entertain Guevara's motion to reopen filed after his deportation. The BIA vacated its November 2, 2001 decision (which had vacated the removal order and terminated proceedings) and reinstated its October 18, 1999 decision finding Guevara removable. Guevara now petitions this Court for review of that decision.
Guevara contends that the BIA erred in granting DHS's motion to reconsider. This Court reviews the grant of a motion to reconsider for abuse of discretion. See Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir.2005) (); 8 C.F.R. § 1003.2(a) (2004) ().
Citing Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 377, 60 S.Ct. 317, 84 L.Ed. 329 (1940), Guevara argues that res judicata prevented DHS's collateral attack on the BIA's jurisdiction to grant his motion to reopen the deportation proceedings. This Court has explained that "[i]f the parties against whom judgment was rendered did not appeal, the judgment becomes final and the court's subject matter jurisdiction is insulated from collateral attack." Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 1286, 1293 (5th Cir.1992).
DHS does not dispute that res judicata precludes a collateral attack on the BIA's jurisdiction.1 Instead, it simply asserts, without supporting argument or authority, that res judicata is inapplicable because its motion to reconsider involved direct review by the BIA of its jurisdiction.
The sole issue thus presented here is whether DHS's motion to reconsider constitutes direct review or a collateral attack. If the motion was part of the direct review process, then res judicata did not apply. On the other hand, if the motion was a collateral attack on the BIA's decision, it was barred by res judicata.
Although apparently we have not addressed the question of whether a motion to consider is collateral, the Eighth Circuit has determined that "[m]otions to reopen or reconsider in the immigration context are not appeals to the Board from its own order, but are more accurately described as collateral attacks on the Board's order." White v. I.N.S., 6 F.3d 1312, 1315 (8th Cir.1993) (citing inter alia 8 C.F.R. § 3.2).2 Similarly, the Supreme Court, in the context of discussing the Attorney General's authority, has opined that "[m]otions for reopening of immigration proceedings are disfavored for the same reasons as are petitions for rehearing and motions for a new trial on the basis of newly discovered evidence." Doherty, 502 U.S. at 323, 112 S.Ct. 719 (citation omitted). Also, the BIA has indicated that "`relief from judgment orders,' contained in Rule 60(b) [of the Federal Rules of Civil Procedure], most resemble our motions to reopen or reconsider." In re J-J-, 21 I. & N. Dec. 976, 983 (BIA 1997). We defer to the BIA's reasonable interpretation of its regulations. Hernandez-Castillo v. Moore, 436 F.3d 516, 519 (5th Cir. 2006).
Relying on the above-quoted Supreme Court's language in Doherty, the Eighth Circuit compared motions to reconsider or reopen immigration proceedings to motions for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b) and motions for new trial pursuant to Federal Rule of Criminal Procedure 33. White, 6 F.3d at 1315. The Eighth Circuit noted that a Rule 60(b) motion "does not affect the finality of a judgment or suspend its operation." Id. (quoting FED.R.CIV.P. 60(b)). The White Court further noted that if a motion for a new trial based on newly discovered evidence is made while an appeal is pending, the court may grant the motion only on remand. Id. (citing FED.R.CRIM.P. 33). The analogy indicates that a motion to reopen immigration proceedings is separate and apart from direct review.
Moreover, this Court has recognized that "[t]he BIA's denial of an appeal and its denial of a motion to reconsider are two separate final orders, each of which require their own petitions for review." Jaquez-Vega v. Gonzales, 140 Fed.Appx. 547 (5th Cir. Aug.5, 2005) (unpublished) (citing Stone v. I.N.S., 514 U.S. 386, 394, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995)). If a motion to reconsider is separate from and does not affect the finality of an appeal, it does not follow that it is part of the direct review. We are persuaded that DHS's motion to reconsider constituted a collateral jurisdictional attack on the BIA's previous decision to grant Guevara's motion to reopen and terminate proceedings.3
Accordingly, because res judicata barred the jurisdictional attack, the BIA abused its discretion in granting the motion to reconsider on that basis, the only basis raised in DHS's motion to reconsider. Our precedent dictates that we treat the BIA's November 2, 2001 order granting Guevara relief "as proper in every respect." Renteria-Gonzalez v. I.N.S., 322 F.3d 804, 812 (5th Cir.2002).4
Accordingly, we GRANT the petition for review, VACATE the BIA's decision and order, and REMAND to the BIA for proceedings consistent with this opinion.
I concur in the judgment and in the panel opinion. I write separately to offer a fuller explanation of my reasoning.
We have previously recognized in a similar case that several agencies, including the BIA, "have a full panoply of powers which they may invoke sua sponte." Wang v. Ashcroft, 260 F.3d 448, 453 (5th Cir.2001) (). Nevertheless, it is somewhat unusual to find an agency with the discretionary power to reopen or reconsider a prior decision, sua sponte, at any time. In this matter, however, the government claims that the BIA possesses just such an unfettered power, at least as long as the BIA considers its own previous decisions on something called "direct appeal" or "direct review."1
While these claims are excessive, the relevant regulatory text clearly indicates that the BIA's authority to reopen or reconsider prior decisions is quite broad: "The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision." 8 C.F.R. § 1003.2(a). In the face of this clear language, it is somewhat difficult to understand how any decision made by such an agency could ever be final. Therefore, it may seem strange to invoke the doctrine of res judicata, as the panel does, to conclude that the BIA's ostensibly sua sponte decision and order, taken pursuant to its power to reconsider set forth in § 1003.2(a), was an abuse of discretion.2 Majority Op., at 176 (citing Renteria-Gonzalez v. INS, 322 F.3d 804, 812 (5th Cir. 2002)).
To appreciate the panel's conclusion, one must recognize that the BIA's last decision and order in this matter was not really taken sua sponte.3 Rather, the BIA's decision and order of July 13, 2004, was taken in response to DHS's motion...
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