Summary
holding that “general principles of res judicata prevent relitigating” lack of notice where it was decided previously
Summary of this case from Pappas v. O'brienOpinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Petition was filed for review of an order of the Board of Immigration Appeals (BIA), denying alien's third motion to reopen her in abstentia deportation order. The Court of Appeals held that: (1) alien's motion was time-barred, and (2) alternatively, res judicata prevented relitigation of the motion.
Petition denied.
Page 897.
On Petition for Review of an Order of the Board of Immigration Appeals.
Before BRIGHT, HAWKINS and W. FLETCHER, Circuit Judges.
The Honorable Myron H. Bright, Senior Circuit Judge for the Eighth Circuit, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
The Board of Immigration Appeals ("BIA") and Immigration Judge ("IJ") did not abuse their discretion by denying Nacorra's third motion to reopen her in absentia deportation order. To the extent Nacorra claims her failure to appear at her 1992 deportation hearing was due to "exceptional circumstances," this claim is clearly time barred. Motions to reopen that are based on such claims must be filed within 180 days of the deportation order. 8 C.F.R. § 3.23(4)(iii)(A)(1). Nacorra's first motion to reopen was not filed until six years after the deportation hearing, and her most recent motion to reopen was filed more than eight years too late.
Nacorra alternatively seeks to rescind the in absentia order for lack of notice. A motion to reopen for lack of notice may be filed at any time and there is no numerical limitation on such motions. 8 C.F.R. §§ 3.2(c)(3)(i) & 3.23(4)(iii)(A)(2). This does not mean, however, that an alien may simply file the same motion to reopen over and over. Nacorra's motion to reopen for lack of notice has been fully litigated at least twice already. Her third motion to reopen does not present any different facts or legal theories. Accordingly, general principles of res judicata prevent relitigating matters that were finally resolved in earlier proceedings. See Ramon-Sepulveda v. INS, 824 F.2d 749, 750-51 (9th Cir.1987); see also Ma Chuck Moon v. Dulles, 237 F.2d 241 (9th Cir.1956).
Her initial motion to reopen for lack of notice was denied in June 1999, and Nacorra did not appeal from that decision. When she filed an identical motion to reopen in November 1999, the IJ noted that it had already decided the motion and thus treated her new motion as a motion to reconsider the denial of the earlier motion. After reviewing the June 1999 decision, the IJ denied Nacorra's second motion as well. Nacorra appealed this denial to the BIA, but her appeal was untimely, and the IJ's decision thus became final.
PETITION DENIED.