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Click here for the full text of this decision FACTS: Marcelo Guevara petitions for review of an order of the Board of Immigration Appeals. Subsequent to the BIA’s initial decision affirming the immigration judge’s 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 successfully moved the BIA to reconsider. Guevara now appeals that order. In DHS’ 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. HOLDING: Vacated and remanded. DHS does not dispute that res judicata precludes a collateral attack on the BIA’s jurisdiction. 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 8th U.S. Circuit Court of Appeals, in White v. I.N.S., 6 F.3d 1312 (8th Cir. 1993), 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. The Eighth Circuit noted that a Rule 60(b) motion does not affect the finality of a judgment or suspend its operation. The White court 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. The analogy indicates that a motion to reopen immigration proceedings is separate and apart from direct review. This court has recognized that the 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. 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. 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, the court finds. 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. OPINION: Benavides, J.; King, Smith and Benavides, J.J. CONCURRENCE: King, J. “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. 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.”

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