Michael L. GROS, M.D.; Janie Gros; Andrew Michael Gros; and Thomas Alan Gros, Plaintiffs-Appellants, v. The UNITED STATES of America, Defendant-Appellee.
No. 06-20354.
United States Court of Appeals, Fifth Circuit.
May 15, 2007.
On a petition for review of a BIA decision, we review factual findings for substantial evidence and questions of law de novo. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir.2001). We accord “deference to the BIA‘s interpretation of immigration statutes unless the record reveals compelling evidence that the BIA‘s interpretation is incorrect.” Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.1997). While we normally review only the decision of the BIA, when, as in this case, the BIA adopts the IJ‘s decision without opinion, we review the IJ‘s decision. Tamara-Gomez v. Gonzales, 447 F.3d 343, 347 (5th Cir.2006).
The BIA has consistently held that “so long as the enforcement officials of the Service choose to initiate proceedings against an alien and to prosecute those proceedings to a conclusion, the immigration judge and the Board must order deportation if the evidence supports a finding of deportability on the ground charged.” In re Yazdani, 17 I. & N. Dec. 626, 630 (BIA 1981); see In re Singh, 21 I. & N. Dec. 427, 435 (BIA 1996); In re Wong, 13 I. & N. Dec. 701, 703 (BIA 1971). Maredia‘s argument to the contrary is without merit. As the IJ did not have discretionary authority to terminate the removal proceedings against Maredia, the denial of Maredia‘s motion to terminate the removal proceedings was not error. See Lopez-Telles v. INS, 564 F.2d 1302, 1304 (9th Cir.1977); Panova-Bohannan v. Ashcroft, 74 Fed.Appx. 424, 425-26 (5th Cir.2003).
Maredia‘s due process challenge regarding the technical procedural defects attendant to his immigration proceedings fails because he has not made an initial showing of substantial prejudice. See Anwar v. INS, 116 F.3d 140, 144 (5th Cir.1997). Finally, Maredia is bound by counsel‘s concession of removability, which was made while Maredia was still represented by that counsel and which new counsel accepted and did not challenge. Matter of Velasquez, 19 I. & N. Dec. 377, 382 (BIA 1986).
PETITION FOR REVIEW DENIED.
Charles R Houssiere, III, Houssiere, Durant & Houssiere, Houston, TX, for Plaintiffs-Appellants.
John Adam Bain, U.S. Department of Justice, Civil Division, Washington, DC, for Defendant-Appellee.
Before REAVLEY, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiffs-appellants Michael L. Gros (“Gros“) and his wife, Janie Gros, appeal
The district court held that Gros‘s tort claims and all derivative claims were barred because Gros‘s injuries arose from activity incident to service. Under the Feres doctrine, “[t]he Government is not liable under the Federal Tort Claims Act for injuries to servicemen that arise out of or occur ‘in the course of activity incident to service.‘” Warner v. United States, 720 F.2d 837, 838 (5th Cir.1983) (quoting Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950)). We consider three factors to determine whether a suit is barred: 1) the duty status of the plaintiff at the time of the incident; 2) whether the incident occurred on or off the base; and 3) the plaintiff‘s activity at the time of the injury. Parker v. United States, 611 F.2d 1007, 1013-14 (5th Cir.1980).
In this case, Gros has alleged that he was exposed to toxic chemicals while showering or drinking water at his home on the base. With respect to the first factor, Gros claims that his injuries occurred during his off-duty hours, but while he was on active-duty status, not on furlough. As for the second factor—whether the accident at issue occurred on or off the base—Gros‘s injuries arose from activities that took place on the base, at Gros‘s home. The third factor to consider is “what [the plaintiff] was doing at the time he was injured.” Id. at 1014. Gros was allegedly engaged in personal activities when he was exposed to the toxic chemical.
We have previously held that the Feres doctrine bars suit when the injuries arose on base while plaintiffs were off-duty and attending to personal activities. See, e.g., Warner, 720 F.2d at 839; Mason v. United States, 568 F.2d 1135, 1136 (5th Cir.1978); Zoula v. United States, 217 F.2d 81, 84 (5th Cir.1955). Indeed, as the district court noted, there is little to distinguish this case from Feres itself. In Feres, the Supreme Court held that a serviceman was acting incident to service when he was killed in a fire while off-duty and sleeping in his barracks. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Gros attempts to distinguish Feres by noting that Gros‘s injuries accumulated over a period of time, rather than all at once. We fail to see the materiality of that difference. Because Gros was on active duty status and on base when his injuries occurred, similar to the plaintiff in Feres, his injuries were incident to service and his suit is barred.1
AFFIRMED.
PER CURIAM