Marie Gregoire v. Eric Holder, Jr.
REVISED UNPUBLISHED OPINION FILED. [6784641-3] [09-60254]
Case: 09-60254 Document: 00511442086 Page: 1 Date Filed: 04/11/2011
REVISED APRIL 11, 2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
April 8, 2011
Lyle W. Cayce
MARIE IVES GREGOIRE,
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Petitions for Review of an Order
of the Board of Immigration Appeals
(A75 394 639)
Before REAVLEY, JOLLY, and STEWART, Circuit Judges.
On March 4, 2011, we denied Marie Gregoire’s petition for review of a final
order of deportation. After the decision was issued, the parties delinquently
brought to our attention a November 17, 2010 order in which the BIA, after
granting Gregoire’s motion to reopen, remanded her petition for further
proceedings before an Immigration Judge. The parties filed a joint motion to
vacate the opinion and to dismiss the petitions for review for lack of jurisdiction.
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
Case: 09-60254 Document: 00511442086 Page: 2 Date Filed: 04/11/2011
For the reasons outlined below we VACATE our opinion and DISMISS the
petitions for review for lack of jurisdiction.
On March 12, 2009, the BIA issued a final order of deportation, which held
that Gregoire was not eligible for adjustment of her status (the “March 12
Order”). On the same day that the BIA issued its order, Gregoire filed a motion
for reconsideration. She also filed a Petition for Review with this court, which
was held in abeyance pending her motion to reopen. In a December 18, 2009
order, the BIA denied Gregoire’s motion. Gregoire filed an additional Petition
for Review with this court on January 6, 2010. Gregoire filed another motion to
reopen with the BIA on April 9, 2010. We denied Gregoire's request to hold
these appeals in abeyance pending the BIA's disposition of her April 9 motion.
On November 17, 2010, the BIA granted Gregoire’s motion to reopen and
remanded Gregoire’s petition to an Immigration Judge (the “November 17
Order”). In the November 17 Order, the BIA reopened the proceedings after
noting the totality of circumstances in the respondent’s unopposed motion,
including the continuing devastation in Haiti. The BIA remanded the record to
the Immigration Judge to provide Gregoire with the opportunity to pursue an
application for adjustment of status based on the approved immediate relative
visa filed on her behalf by her husband, who is a United States citizen. The
parties failed to alert this court to the BIA’s November 17 Order until March 7,
2011. In the meantime, however, on March 4, 2011, we had issued an opinion
deciding the issues contained in the petition for review of the March 12, 2009
On March 7, 2011, the parties filed a joint motion to vacate our opinion
and to dismiss Gregoire’s petitions for review for lack of jurisdiction. They
contended that the November 17 Order effectively vacated the March 12 Order.
This unusual procedural posture is strikingly similar to the recentlydecided case of Espinal v. Holder, __ F.3d __, 2011 WL 1049508 (5th Cir. March
Case: 09-60254 Document: 00511442086 Page: 3 Date Filed: 04/11/2011
24, 2011). In Espinal we joined the majority of circuits in holding that the grant
of a motion for reconsideration and issuance of a subsequent BIA order do not
necessarily render the initial removal order non-final or moot for the purpose of
a reviewing court. Id. at 1-2. But, the retention of jurisdiction by the appellate
court is premised on the “BIA’s grant of reconsideration [ ] not materially
chang[ing] or effectively vacat[ing] the order under review.” Id. at 2.
It is clear that the BIA’s grant of reconsideration of Gregoire’s claim
materially changed the order.
The March 12 Order was a final order of
deportation, whereas the November 17 Order remanded the case to the
Immigration Judge for further proceedings. Accordingly, because the BIA’s
grant of reconsideration materially changed the order reviewed in our March 4
opinion, which we interpret to mean under the applicable precedents that we
lack jurisdiction because the March 12 Order that we reviewed was not a final
order, the opinion is therefore WITHDRAWN, the judgment is VACATED and
Gregoire’s petitions for review are DISMISSED.
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