L-M-P

Cite as 27 I&N Dec. 265 (BIA 2018) Interim Decision #3925

Matter of L-M-P-, Applicant

Decided April 27, 2018

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(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.

1

The applicant is in withholding of removal only proceedings, where we refer to aliens

as “applicants.” See 8 C.F.R. §§ 1208.2(c)(2)(i), 1208.31(e) (2017).

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§ 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

2

The regulation at 8 C.F.R. § 1003.23(b)(1) provides, in pertinent part, as follows:

Before the Immigration Court—(1) In general. An Immigration Judge may upon

his or her own motion at any time, or upon motion of the Service or the alien, reopen

or reconsider any case in which he or she has made a decision, unless jurisdiction is

vested with the Board of Immigration Appeals. Subject to the exceptions in this

paragraph and paragraph (b)(4), a party may file only one motion to reconsider and

one motion to reopen proceedings. A motion to reconsider must be filed within

30 days of the date of entry of a final administrative order of removal, deportation,

or exclusion . . . . A motion to reopen must be filed within 90 days of the date of

entry of a final administrative order of removal, deportation, or exclusion . . . . The

time and numerical limitations set forth in this paragraph do not apply to motions by

the Service in removal proceedings pursuant to section 240 of the Act.

(Emphases added.) References to the “Service” are to the Immigration and Naturalization

Service, whose functions were transferred to the Department of Homeland Security in 2003.

See Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005) (noting the transfer of authority);

Matter of D-J-, 23 I&N Dec. 572, 573 n.1 (A.G. 2003) (same).

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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

3

Similarly, section 240(c)(7)(A) provides that an “alien may file one motion to reopen

proceedings.” Both provisions were added to the statute by section 304(a)(3) of the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub.

L. No. 104-208, 110 Stat. 3009-546, 3009-587, 3009-593. They were later redesignated as

sections 240(c)(6) and (7) of the Act. REAL ID Act of 2005, Div. B, Pub. L. No. 109-13,

§ 101(d)(1), 119 Stat. 302, 304.

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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,

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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 Judge’s reasoning, the application of res judicata under these

circumstances would bar timely movants from filing their motions.

We are not persuaded by the Immigration Judge’s reliance on Guevara

v. Gonzales, 450 F.3d 173 (5th Cir. 2006), in which the alien’s situation was

factually and procedurally different from the applicant’s. In that case, the

DHS filed a motion to reconsider more than 2 years after the Board had

terminated the removal proceedings. Id. at 175. Here, the DHS filed a timely

motion to reconsider with the Immigration Judge in accordance with the

regulations. Therefore, we do not find that case to be applicable. See also,

e.g., Sosa-Valenzuela v. Holder, 692 F.3d 1103, 1109–12 (10th Cir. 2012)

(discussing the effect of a timely motion to reconsider filed by the DHS).

We also do not read Stone v. INS, 514 U.S. 386, 401 (1995), which

addresses Federal court jurisdiction, as supporting the application of

res judicata. See Sosa-Valenzuela, 692 F.3d at 1111 (explaining that Stone

does not impose any restrictions on the appellate jurisdiction of the Board

but applies, instead, to parties seeking judicial review of agency actions); see

also Matter of Jasso Arangure, 27 I&N Dec. at 181 (explaining that the

principles of res judicata apply more flexibly in the administrative context

than in judicial proceedings). Moreover, that decision supports the

proposition that an individual who seeks reconsideration of an Immigration

Judge’s decision, rather than appealing, may challenge the issues underlying

the motion to reconsider despite the subsequent finality of the decision, as

occurred in this case. Stone, 514 U.S. at 401 (“The denial of the motion is

appealable as a separate final order, and if the original appeal is still pending

it would seem that the court of appeals can consolidate the proceedings.”).

Finally, we conclude that the Immigration Judge erred in granting asylum

to the applicant, who is subject to a reinstated order of removal pursuant to

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section 241(a)(5) of the Act and is in withholding of removal only

proceedings. According to 8 C.F.R. § 1208.31(e), “If an asylum officer

determines that an alien [who is subject to a reinstated removal order] has a

reasonable fear of persecution or torture, the officer shall so inform the alien

and issue a [referral to an Immigration Judge], for full consideration of the

request for withholding of removal only.” (Emphasis added.) The Ninth

Circuit has held that the Attorney General’s regulation at 8 C.F.R.

§ 1208.31(e) is a reasonable interpretation of the Act and is entitled to

deference. Perez-Guzman, 835 F.3d at 1081–82. Therefore, the applicant is

ineligible for asylum in these proceedings. 4 Accordingly, the Immigration

Judge’s grant of asylum will be vacated.

Since the Immigration Judge granted asylum, she did not address the

applicant’s request for withholding of removal or protection under the

Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, adopted and opened for signature Dec. 10, 1984,

G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.

A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States

Apr. 18, 1988). Thus, we will remand the record for the Immigration Judge

to consider the applicant’s requests for relief and protection under the

applicable law. See section 241(b)(3)(A) of the Act; 8 C.F.R. §§ 1208.16–.18

(2017). We express no opinion regarding the ultimate outcome of these

proceedings. See Matter of L-O-G-, 21 I&N Dec. 413, 419 (BIA 1996).

ORDER: The appeal of the Department of Homeland Security is

sustained, and the Immigration Judge’s grant of asylum is vacated.

FURTHER ORDER: The record is remanded to the Immigration

Judge for further proceedings consistent with the foregoing opinion and for

the entry of a new decision.

4

All of the circuit courts that have addressed whether an alien who is subject to a

reinstated order of removal may apply for asylum have concluded that such an alien is

ineligible for asylum. See Garcia v. Sessions, 873 F.3d 553, 557 (7th Cir. 2017), petition

for cert. filed, (U.S. Jan. 9, 2018) (No. 17-984); R-S-C v. Sessions, 869 F.3d 1176,

1189–89 (10th Cir. 2017), petition for cert. filed, (U.S. Feb. 23, 2018) (No. 17-7912); Mejia

v. Sessions, 866 F.3d 573, 587 (4th Cir. 2017); Cazun v. Att’y Gen. U.S., 856 F.3d 249,

255–61 (3d Cir. 2017), petition for cert. filed, (U.S. Dec. 29, 2017) (No. 17-931); Garcia

v. Sessions, 856 F.3d 27, 38–41 (1st Cir. 2017), petition for cert. filed, (U.S. Feb. 21, 2018)

(No. 17-1212); Jimenez-Morales v. U.S. Att’y Gen., 821 F.3d 1307, 1310 (11th Cir. 2016);

Ramirez-Mejia v. Lynch, 794 F.3d 485, 489–91 (5th Cir. 2015); Herrera-Molina v. Holder,

597 F.3d 128, 139 (2d Cir. 2010).

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