In re L-M-P, Interim Decision #3925

• Decision Date: 27 April 2018
• Docket Number: Interim Decision #3925
• Parties: Matter of L-M-P-, Applicant
• Court: U.S. DOJ Board of Immigration Appeals

27 I&N Dec. 265

Matter of L-M-P-, Applicant

Interim Decision #3925

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

April 27, 2018

(1) The Department of Homeland Security has the authority to file a motion to reconsider in Immigration Court.

(2) An applicant in withholding of removal only proceedings who is subject to a reinstated order of removal pursuant to section 241(a)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1231(a)(5) (2012), is ineligible for asylum.

FOR APPLICANT: Chelsea E. HaleyNelson, Esquire, Oakland, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Nicole J. Thomas-Dorris, Assistant Chief Counsel

BEFORE: Board Panel: MALPHRUS, MULLANE, and LIEBOWITZ, Board Members.

LIEBOWITZ, Board Member:

In a decision dated March 15, 2017, an Immigration Judge denied a motion filed by the Department of Homeland Security ("DHS") requesting that the Immigration Judge reconsider her grant of asylum to the applicant.¹ The DHS has appealed from that decision. The appeal will be sustained and the record will be remanded to the Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY

The applicant is a native and citizen of Guatemala who was removed from the United States on August 6, 2013, and illegally reentered on August 10, 2013. On August 15, 2013, the DHS reinstated a prior order of removal against the applicant. The applicant expressed a fear of returning to Guatemala and was referred to an asylum officer for a reasonable fear interview pursuant to 8 C.F.R. § 1241.8(e) (2014). The asylum officer concluded that the applicant did have a reasonable fear of persecution, and the matter was referred to the Immigration Judge in accordance with 8 C.F.R. § 1208.31(e) (2014) for consideration of the request for withholding of removal only.

Following that referral, the Immigration Judge granted the applicant's application for asylum in a decision dated August 1, 2016. Based on the intervening decision in Perez-Guzman v. Lynch, 835 F.3d 1066 (9th Cir. 2016), cert. denied, 138 S. Ct. 737 (2018), the DHS filed a timely motion to reconsider with the Immigration Judge on August 31, 2016, arguing that the United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this case arises, had clarified that the Immigration Judge's grant of asylum to the applicant was impermissible because she was subject to a reinstated order of removal pursuant to section 241(a)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1231(a)(5) (2012). In denying the DHS's motion to reconsider, the Immigration Judge declined to address the merits, ruling instead that "the Act does not confer the ability to file a motion to reconsider on the DHS" and that the regulation at 8 C.F.R. § 1003.23(b)(1) (2016), which allows an Immigration Judge to accept a motion to reconsider from the DHS, is inconsistent with the Act. Thus, the Immigration Judge held that the DHS does not have the statutory authority to file such a motion in Immigration Court. In the alternative, the Immigration Judge found that the DHS's motion was barred by res judicata.

II. ANALYSIS

The regulation at 8 C.F.R. § 1003.23(b)(1) explicitly gives the DHS authority to seek reconsideration and reopening in Immigration Court.² It specifically states that an Immigration Judge can reopen or reconsider any case upon a motion of the DHS or an alien and that the DHS is not subject to the time and numerical limits for such motions in removal proceedings. Thus, according to the plain language of the regulations, both the DHS and the alien are permitted to file motions to reconsider and reopen before the Immigration Judge.

An Immigration Judge is without authority to disregard the regulations, which have the force and effect of law. Matter of H-M-V-, 22 I&N Dec. 256, 261 (BIA 1998) ("[O]nce a regulation is properly issued by the Attorney General, it is the obligation of this Board and the Immigration Judges to enforce it. Regulations promulgated by the Attorney General have the force and effect of law as to this Board and the Immigration Judges."); see also, e.g., Matter of Fede, 20 I&N Dec. 35, 36 (BIA 1989). The Immigration. Judge nevertheless found the regulations to be inconsistent with the Act. It is unnecessary to go beyond the language of the regulations, but we nonetheless offer the following in response to the Immigration Judge's extended analysis.

Section 240(c)(6)(A) of the Act, 8 U.S.C. § 1229a(c)(6)(A) (2012), provides that an "alien may file one motion to reconsider a decision that the alien is removable from the United States."³ Although the statute refers only to the "alien," we disagree with the Immigration Judge's conclusion that the language of the Act clearly and unambiguously grants the right to file a motion to reconsider to aliens alone. The express limitations on the alien's right to file motions do not necessarily indicate that only the alien has that right. In fact, the absence of any similar limitations on the DHS could be interpreted as meaning that Congress intended that the DHS be unencumbered by any limitations on its ability to file motions. We therefore find the language of section 240(c)(6) of the Act to be ambiguous.

The legislative history does not support the Immigration Judge's conclusion that section 240(c)(6) of the Act was intended to provide rights solely to the alien and to limit the DHS's ability to file motions. See BedRoc Ltd., LLC v. United States, 541 U.S. 176, 187 n.8 (2004) (permitting resort to legislative history when the text of a statute is ambiguous); Probert v. Family Centered Servs. of Alaska, Inc., 651 F.3d 1007, 1011 (9th Cir. 2011). The committee report for the amendments to the Act that added section 240(c)(6) indicates that they were designed to "streamline[] rules and procedures for removing illegal aliens," including "a streamlined appeal and removal process"; to make "[r]elief from deportation . . . more strictly limited"; and to "make it easier to deny admission to inadmissible aliens and easier to remove deportable aliens from the United States." H.R. Rep. No. 104-469(I), at 107-08, 157 (1996), available at 1996 WL 168955. Moreover, in discussing the limitations on an alien's right to file motions, the commentary specifies only that "[a]liens are limited to a single motion to reconsider and a single motion to reopen removal proceedings." Id. at 159; see also id. at 231 ("An alien is limited to one motion to reconsider the decision of the immigration judge."). It includes no discussion about similar limitations placed on the DHS.

Further, in regard to the interim regulations implementing the statute, the former Immigration and Naturalization Service ("INS") acknowledged that several commenters argued that the same time and numerical "limitations should apply to all parties in all proceedings." Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed Reg. 10,312, 10,321 (Mar. 6, 1997) (codified at 8 C.F.R. § 3.23(b) (1998)). However, the INS rejected the argument, concluding that "Congress has imposed limits on motions to reopen, where none existed by statute before, and specifically imposed those limits on the alien only." Id. (emphasis added). It therefore determined that the regulations implementing the statute would continue to provide that time and number limits do not apply to motions by the Government in removal proceedings pursuant to section 240 of the Act. See 8 C.F.R. § 1003.23(b)(1).

It is also significant that the underlying purpose of a motion to reconsider is to address any "errors of fact or law in the Immigration Judge's prior decision." 8 C.F.R. § 1003.23(b)(2); see also Matter of Cerna, 20 I&N Dec. 399, 402 (BIA 1991) ("The very nature of a motion to reconsider is that the original decision was defective in some regard."), superseded by amended regulation as recognized in Sadighi v. Lynch, 670 F. App'x 446, 446 n.1 (9th Cir. 2016). There is no logical rationale for concluding that only one party is permitted to seek the correction of a defective decision. We therefore conclude that the Act does not preclude the DHS from filing a motion to reconsider before an Immigration Judge. Consequently, the Immigration Judge erred in denying the DHS's request for reconsideration without addressing the merits of the motion.

The Immigration Judge also erred in denying the DHS's motion based on the principle of res judicata, according to which "a final judgment on the merits bars a subsequent action between the same parties over the same cause of action." Matter of Jasso Arangure, 27 I&N Dec. 178, 180 (BIA 2017) (citation omitted). The DHS filed a timely motion to reconsider in accordance with the regulations, which provide that an Immigration Judge may "reopen or reconsider any case in which he or she has made a decision, unless jurisdiction is vested with the Board of Immigration Appeals." 8 C.F.R. § 1003.23(b)(1). Jurisdiction had not vested with the Board, and the DHS timely filed its motion prior to the expiration of its appellate deadline. See 8 C.F.R. § 1003.38(b) (2016). Thus, the Immigration Judge had jurisdiction over the motion.

Moreover, since the withholding of removal proceedings are subject to a timely motion to reconsider, the administrative process provided by the regulations has not been completed. Therefore, the doctrines of res judicata and collateral estoppel are not applicable. See Valencia-Alvarez v. Gonzales, 469 F.3d 1319, 1323-24 (9th Cir. 2006) (rejecting a res judicata argument because the alien had not obtained a prior "final judgment, rendered on the merits in a separate action"); cf. Bravo Pedroza v. Gonzales, 475 F.3d 1358, 1360 (9th Cir. 2007) (finding that the "basic requirement of res judicata" had been met where the alien had "a prior final judgment on the merits in a separate action"). As the DHS properly noted, if we were to adopt the Immigration...