27 I. & N. Dec. 265
BIA2018Background
- Applicant L-M-P-, a Guatemalan national, was previously removed on Aug 6, 2013, illegally reentered Aug 10, 2013, and had a prior removal order reinstated Aug 15, 2013 under INA § 241(a)(5).
- Applicant expressed fear of return; an asylum officer found a reasonable fear and referred the case to an Immigration Judge (IJ) for withholding-only proceedings under 8 C.F.R. § 1208.31(e).
- The IJ granted asylum on Aug 1, 2016. DHS filed a timely motion to reconsider based on intervening Ninth Circuit precedent (Perez-Guzman) arguing asylum was impermissible for those subject to reinstated orders.
- The IJ denied DHS’s motion, holding DHS lacked statutory authority to file motions to reconsider in Immigration Court and alternatively ruling DHS’s motion was barred by res judicata.
- The Board of Immigration Appeals (BIA) reviewed the matter, addressing (1) DHS regulatory authority to file reconsideration motions, (2) applicability of res judicata, and (3) whether an applicant subject to a reinstated order is eligible for asylum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DHS may file a motion to reconsider in Immigration Court | IJ/Applicant argued statute limits motions to aliens only; DHS lacks authority | DHS relied on 8 C.F.R. §1003.23(b)(1) permitting DHS motions and argued statutory text is ambiguous | BIA: DHS may file motions to reconsider; IJ erred in rejecting the regulation |
| Whether res judicata barred DHS’s timely motion to reconsider | Applicant/IJ argued IJ’s grant was final and bars DHS relitigation | DHS argued its motion was timely under the regulation and administrative process remained open | BIA: Res judicata inapplicable because DHS filed a timely motion and jurisdiction existed; IJ erred |
| Whether applicant subject to reinstated removal order is eligible for asylum in withholding-only proceedings | Applicant argued asylum grant was proper | DHS argued 8 C.F.R. §1208.31(e) and controlling Ninth Circuit precedent preclude asylum for reinstated-order aliens | BIA: Applicant is ineligible for asylum; IJ’s asylum grant vacated |
| Remand for consideration of withholding/CAT relief | Applicant implicitly argued merits of withholding/CAT remain to be decided | DHS sought reconsideration and remand to address withholding/CAT consistent with law | BIA: Case remanded to IJ to adjudicate withholding of removal and CAT claims; no opinion on ultimate outcome |
Key Cases Cited
- Perez-Guzman v. Lynch, 835 F.3d 1066 (9th Cir. 2016) (upholding that aliens subject to reinstated orders are ineligible for asylum under 8 C.F.R. §1208.31(e))
- Stone v. INS, 514 U.S. 386 (U.S. 1995) (addresses federal-court jurisdiction and appeals from agency motions)
- BedRoc Ltd., LLC v. United States, 541 U.S. 176 (U.S. 2004) (permitting resort to legislative history when statutory text is ambiguous)
- Valencia-Alvarez v. Gonzales, 469 F.3d 1319 (9th Cir. 2006) (res judicata not applicable where no prior final judgment on the merits in a separate action)
- Sosa-Valenzuela v. Holder, 692 F.3d 1103 (10th Cir. 2012) (discusses effect of timely government motion to reconsider)
- Guevara v. Gonzales, 450 F.3d 173 (5th Cir. 2006) (distinguished where government filed an untimely motion after proceedings had terminated)