IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________
No. 92-5305
(Summary Calendar)
_____________________________
JUAN JAIME MEDINA,
Petitioner,
versus
IMMIGRATION AND NATURALIZATION
SERVICE,
Respondent.
_________________________________________________
Petition for Review of an Order of
the Immigration and Naturalization Service
_________________________________________________
(August 26, 1993)
(Opinion June 18, 5th Dir., 1993, _______F.2d________)
ON PETITION FOR REHEARING
BEFORE KING, DAVIS, and WIENER, Circuit Judges.
BY THE COURT:
IT IS ORDERED that the Petition for Rehearing filed on behalf
of Respondent, the Immigration and Naturalization Service (INS), be
and hereby is DENIED.
In its petition, the INS reurges with renewed vigor and
additional citation its argument that it may collaterally attack an
adjudication of citizenship. Despite the INS's additional
arguments, we adhere to our panel decision.
We need not repeat the facts of this case, but pause only to
summarize. Under the immigration laws, Juan Jaime Medina, born of
an American father, was himself an American citizen provided that
he complied with a two year residency requirement. In 1985, an
Immigration Judge (IJ) held in an adjudicatory proceeding that
Medina had met the statutory requirement, although the IJ applied
the incorrect standard. The INS, sharing this error, conceded
Medina's citizenship and waived appeal. Two years later, the INS
initiated new proceedings against Medina, claiming that he was
deportable under § 241(a)(1) of the Immigration and Nationality Act
(INA), which provides:
Any alien in the United States (including an alien
crewman) shall, upon order of the Attorney General, be
deported whoSQ(1) at the time of entry was within one or
more of the classes of aliens excludable by the law
existing at the time of such entry.
In our panel opinion we held that the subsequent proceeding was
precluded by res judicata.
Few legal doctrines are more intrinsic or necessary in our
system than res judicata. That doctrine, which provides that a
valid and final judgment precludes a second suit between the same
parties on the same claim or any part thereof, ensures that
litigation will come to an end. Were we to accept the INS's
arguments, we would carve out a large exception to this venerable
doctrine, one that would allow the agency to eschew direct
appealsSQeither inadvertently, through error, or consciously as a
strategic decisionSQthen, years later, collaterally attack
decisions of immigration judges. The INS presents no persuasive
argument or authority to convince us to take such a drastic step.
In its rehearing petition, the INS argues that application of
administrative res judicata or collateral estoppel is subject to
2
the direction of Congress, citing University of Tennessee v.
Elliott,1 and Astoria Federal Savings and Loan Association v.
Solimino.2 But these cases dealt with state administrative
findings under Title VII and the Age Discrimination in Employment
Act. In each case, the Supreme Court held that unreviewed adverse
findings by a state administrative judge did not preclude the
plaintiff from filing a claim in federal court. The Court also
held that "when the interpretation of a statute is at hand. . . .
the question is not whether administrative estoppel is wise but
whether it is intended by the legislature."3
We do not quarrel with the correctness of these opinions; they
are simply inapplicable to the instant case. In making its
argument, the INS overlooks an important distinction between the
state administrative proceedings required under Title VII and the
ADEA on the one hand and the review of a determination of
citizenship on the other. In Title VII and ADEA claims, the
plaintiff is required to exhaust those state remedies before
bringing a claim in federal court. In other words, the plaintiff
brings suit in federal court. Obviously, under such a system, the
determination in the state administrative proceeding cannot bind
the federal court or there could never be a federal cause of
action. The exhaustion of state remedies requirement has several
purposes, but elimination of the claim is not one of them.
1
478 U.S. 788 (1986).
2
111 S.Ct. 2166 (1991).
3
Astoria, 111 S.Ct. at 2169.
3
In contrast, when determining citizenship neither the
petitioner nor the INS brings a new suit in federal court; rather,
under the INA, they seek review of an IJ's decision. Accordingly,
the proper procedure to review an IJ's holding is an appeal to the
Board of Immigration Appeals (BIA); the decision of the BIA is
appealed directly to the Court of Appeals.4 By enacting §
105a(a)(5),5 "Congress carved out one class of cases . . . where de
novo review in district court claims of nationality would be
available: cases in which the person subject to deportation claims
to be a United States citizen."6 Under that section, the Court of
Appeals may transfer the claim for a de novo review by the district
court if there is a genuine issue of material fact.
The INS now urges that Medina is entitled to that
4
See INA § 105a(a), 8 U.S.C. § 1105a(a)(exclusive procedure
for judicial review of orders of deportation and exclusion
governed by 28 U.S.C. § 2341 et seq., which vests exclusive
jurisdiction in the Court of Appeals).
5
8 U.S.C. § 1105a(a)(5). That section reads:
Claim of Nationality; determination or transfer to
district court for hearing de novo. Whenever any
petitioner, who seeks review of an order under this
section, claims to be a national of the United States
and makes a showing that his claim is not frivolous,
the court shall (A) pass upon the issues presented when
it appears from the pleadings and affidavits filed by
the parties that no genuine issue of material fact is
presented; or (B) where a genuine issue of material
fact as to the petitioner's nationality is presented,
transfer the proceedings to a United States district
court for the district where the petitioner has his
residence for hearing de novo of the nationality claim
and determination as if such proceedings were
originally initiated in the district court under the
provisions of section 2201 of title 28.
6
Agosto v. INS, 436 U.S. 748, 753 (1978)(emphasis added).
4
determination in district court. We note in passing that the
language of the provision is phrased to protect the petitioner
seeking recognition of his or her citizenship, not the INS.
Section 105a(a)(5) was prompted by Supreme Court cases recognizing
"that the Constitution requires that there be some provision for de
novo judicial determination of claims to American citizenship in
deportation proceedings. . . . `To deport one who . . . claims to
be a citizen, obviously deprives him of liberty. . . . [and] may
result also in loss of both property and life; or of all that makes
life worth living.'"7 Moreover, the transfer to the district court
is not automatic, but occurs only after determinations by the Court
of Appeals. Thus, at most, the INS could have attempted to obtain
from us a transfer to the district court for a de novo review of
Medina's claim.
At the heart of this case, however, is the INS's failure to
grasp or refusal to accept that the agency must seek such a
determination on direct appeal or suffer res judicata preclusion.
These review proceedings do not exist separately as do the federal
claims under Title VII or the ADEA. Here, when the INS failed to
take advantage of the appeals process, res judicata mandated that
the agency be precluded from successive attempts to relitigate the
question of Medina's citizenship. Certainly, the Supreme Court's
recognition that claims to American citizenship in deportation
proceedings implicate liberty and property rights supports our
7
Id. (quoting Ng Fung Ho v. White, 259 U.S. 276, 284
(1922)).
5
conclusion, reiterated today, that a final, uncontested grant of
citizenship cannot be revisited at the INS's pleasure.
ENTERED FOR THE COURT:
__________________________________
United States Circuit Judge
6