Guevara v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
May 19, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 04-60685

MARCELO GUEVARA,

Petitioner,

v.

ALBERTO R. GONZALES,
U.S. Attorney General,

Respondent.

On Petition for Review from an Order of
the Board of Immigration Appeals

Before KING, SMITH, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

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.

I. FACTUAL AND PROCEDURAL HISTORY

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.

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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-L-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.

II. ANALYSIS

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) (reviewing the denial of a motion to

reconsider); 8 C.F.R. § 1003.2(a) (2004) (“The decision to grant or

deny a motion to reopen or reconsider is within the discretion of

the Board . . . .”).

Citing Chicot County Drainage Dist. v. Baxter State Bank, 308

U.S. 371, 377 (1940), Guevara argues that res judicata prevented

3
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

1
This Court previously has rejected the BIA’s conclusion
that res judicata does not apply to its administrative proceedings.
Medina v. I.N.S., 993 F.2d 499, 503-04 (5th Cir. 1993).

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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 (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

2
Section 3.2(a) involves requests to reopen or reconsider
proceedings before the BIA and is the predecessor to section
1003.2(a), which was previously quoted. The wording did not
change.

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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 (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

3
We note that DHS relies on Navarro-Miranda v. Ashcroft, 330
F.3d 672 (5th Cir. 2003), in support of its argument that the BIA
lacked jurisdiction to grant Guevara’s motion to reopen. However,
Navarro-Miranda does not control this case. While Navarro-Miranda
is very similar in that the alien was moving for relief based on
the holding in Chapa-Garza that driving while intoxicated was not
a crime of violence. However, in that case, the BIA had denied
relief recognizing that it lacked jurisdiction because the alien
had already been deported. Here, if DHS had responded to Guevara’s
motion to reopen with this argument, presumably the BIA would have
denied Guevara’s motion for lack of jurisdiction. More
importantly, due to the difference in the procedural posture of the
cases, the instant res judicata bar is not affected by our holding
in Navarro-Miranda that the BIA’s interpretation of its regulations
was reasonable.

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 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

III. CONCLUSION

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.

4
Because this issue is dispositive of Guevara’s petition for
review, we need not address his other arguments.

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KING, Circuit Judge, concurring:

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) (holding that this court lacked jurisdiction to

consider a petition for review from the BIA’s discretionary

decision not to reopen a case). 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

1
What the government means by the BIA’s ability to review its
own previous decisions on “direct appeal” or “direct review” is not
particularly clear. At one point in its brief before this court,
the government argues, without citation or factual referent, that
“this case involves an attack on jurisdiction by one of the parties
to the litigation, DHS, in the course of direct review.” Gov’t Br.
at 10.
On the other hand, the government’s own statement of the facts
before this court clearly indicates that the BIA reached its final
decision and order after considering an untimely motion to
reconsider from DHS on March 30, 2004. See Gov’t Br. at 5 (“On
March 30, 2004, the DHS filed a motion to reconsider with the
Board. . . . In a decision dated July 13, 2004, the Board granted
DHS’s motion to reconsider.”). Furthermore, as will be discussed
further below, the BIA claimed it was reconsidering the matter
pursuant to 8 C.F.R. § 1003.2, and it made no reference to any sort
of “direct review” of its own previous decision. R. at 2. Using
the government’s version of the procedural history of this case,
 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 ----

(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

and following the BIA’s analysis of its own order, this concurrence
will treat the BIA’s final order as arising under the framework of
8 C.F.R. § 1003.2 rather than the government’s notion of “direct
review.”
2
Although it may seem somewhat strange to apply the doctrine
of res judicata in this matter, the general applicability of res
judicata to removal proceedings before the BIA has been clearly
stated by this court. See, e.g., Medina v. INS, 993 F.2d 499 (5th
Cir. 1993) (per curiam) (vacating an order of deportation while
holding that res judicata precluded the INS from revisiting a prior
adjudication).
3
A decision taken sua sponte by a court or agency is a
decision taken “[w]ithout prompting or suggestion; on its own
motion . . . .” BLACK’S LAW DICTIONARY 1437 (7th ed. 1999).

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13, 2004, was taken in response to DHS’s motion to reconsider of

March 30, 2004, and it invoked the opening sua sponte language of

8 C.F.R. § 1003.2(a), quoted above, in order to waive the

timeliness restrictions on party motions to reconsider or reopen

which are set forth later in § 1003.2. After opening with the

language quoted above, § 1003.2(a) continues to state that:

A request to reopen or reconsider any case in which a
decision has been made by the Board, which request is
made by the Service, or by the party affected by the
decision, must be in the form of a written motion to the
Board. The decision to grant or deny a motion to reopen
or reconsider is within the discretion of the Board,
subject to the restrictions of this section.

Several of these further restrictions are set forth in 8

C.F.R. § 1003.2(b) and (c). Section 1003.2(b) provides that a

written motion to reconsider a decision “must be filed . . . within

thirty days after the mailing of the Board decision,” and it also

limits parties to “only one motion to reconsider any given decision

. . . .” Section 1003.2(c) provides that a written motion to

reopen a decision “must be filed no later than 90 days after the

date on which the final administrative decision was rendered in the

proceeding sought to be reopened,” and it prevents the Board from

We are not alone in our insistence that the term “sua sponte”
must have substantive meaning in this context. In Pilch v.
Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003), the Seventh Circuit
noted that a petitioner’s counsel, “[i]n an attempt at disguise,
captioned [a successive motion to reopen] as a motion asking the
Board to act sua sponte--but, of course, if reopening were to occur
in response to a motion, it could not have been sua sponte.” To
remove any doubt, the Seventh Circuit concluded that “adding the
words ‘sua sponte’ to a successive motion does not change its
character.” Pilch, 353 F.3d at 586.

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granting motions to reopen unless they are accompanied by new

evidence that “is material and was not available and could not have

been discovered or presented at the former hearing . . . .”

Both the BIA’s decision and order and the government’s brief

before this court clearly indicate that the BIA responded to DHS’s

motion to reconsider.4 And therefore, the BIA’s decision and order

was not really sua sponte; rather, the BIA simply and openly

applied the sua sponte label in order to evade the timeliness

restrictions upon party motions to reconsider and reopen

contemplated in 8 C.F.R. § 1003.2(a) and specified in 8 C.F.R.

§ 1003.2(b) and (c). When the focus is put on DHS’s motion to

reconsider, then it is not, perhaps, inappropriate to treat DHS’s

motion as a precluded and time-barred attack on a previous and

final order by the BIA.

4
On November 2, 2001, the BIA vacated its previous removal
order and terminated removal proceedings against Guevara. R. at
24. Almost two-and-a-half years later, DHS filed a motion to
reconsider with the BIA, on March 30, 2004. R. at 19. As noted
above, 8 C.F.R. § 1003.2(b) imposes a thirty-day limit on party
motions to reconsider. On July 13, 2004, the BIA issued the
decision and order from which the current petition is taken,
expressly granting DHS’s untimely motion. See R. at 2 (concluding
that DHS’s “motion to reconsider will be granted”). In its
decision and order, the BIA stated that “[t]o resolve any question
of timeliness we will accept this motion sua sponte.” Id. (citing
8 C.F.R. § 1003.2(a)).
Throughout its brief before this court, the government
confirms that the BIA’s decision was taken in response to DHS’s
motion to reconsider, rather than taken sua sponte. See, e.g.,
Gov’t Br. at 6 (stating that the BIA “did not err in granting DHS’s
motion to reconsider and reinstating its prior order of removal. .
. . in granting DHS’s motion to reconsider, the Board was simply
correcting a previous error concerning jurisdiction”).

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 The panel’s conclusion finds further support in the decisions

of other courts, which have noted that motions to reopen or

reconsider pursuant to 8 C.F.R. § 1003.2 should be reserved for

those rare instances involving exceptional hardship or dramatically

changed circumstances affecting an alien petitioner. See, e.g.,

Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 131 (2d Cir. 2005)

(per curiam) (stating that the BIA should exercise its sua sponte

authority “sparingly” and “as an extraordinary remedy” to prevent

or remedy “truly exceptional situations” of grave hardship);

Berishaj v. Ashcroft, 378 F.3d 314, 330-31 (3d Cir. 2004)

(discussing 8 C.F.R. § 1003.2 and encouraging “the Department of

Justice to adopt a policy that encourages its attorneys to file

motions to reopen” when conditions in an applicant’s native country

change, necessitating an updated administrative record); Johnson v.

Ashcroft, 378 F.3d 164, 170-71 n.8 (2d Cir. 2004) (stating that the

BIA’s sua sponte authority to reopen or reconsider is limited to

“extraordinary” circumstances and “rarely invoked”). This case

presents no such extraordinary issue of exceptional hardship or

dramatic overseas change; rather, DHS filed its untimely motion to

argue that the BIA lacked jurisdiction for its decision and order

of November 2001 because Guevara had already been removed.

Finally, the panel’s conclusion is appropriate because it

preserves the security granted by decisions of the BIA to admit

aliens or to terminate removal proceedings. The unacceptable

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alternative to the panel’s conclusion would provide DHS with the

unlimited ability to file motions to reconsider or reopen

unfavorable BIA decisions, so long as DHS could also convince the

BIA to apply the sua sponte fig leaf used in this case. Cf. Medina

v. INS, 993 F.2d 499, 503 (5th Cir. 1993) (per curiam) (applying

the doctrine of res judicata, vacating a BIA order of deportation,

and rejecting INS attempts to secure “an infinite number of trips

around the carousel in repeated efforts to grab the brass ring

missed on the first try”). Of course, the BIA, “[l]ike any

tribunal . . . can reconsider its decisions within a reasonable

time even if no one asks it to and there has been no change in law

or other compelling ground for reconsideration.” Ahmed v.

Ashcroft, 388 F.3d 247, 251 (7th Cir. 2004) (citing, inter alia, 8

C.F.R § 1003.2(a)) (emphasis added). But this discretionary power

has limits, and those limits have been exceeded in this case.

Because I agree that the BIA abused its discretion by granting

DHS’s motion to reconsider--a motion filed almost two-and-a-half

years after the BIA terminated Guevara’s removal proceedings--I

concur in the panel’s judgment and opinion.

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