IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________________

No. 92-5305

(Summary Calendar)

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JUAN JAIME MEDINA,

Petitioner,

versus

IMMIGRATION AND NATURALIZATION

SERVICE,

Respondent.

_________________________________________________

Petition for Review of an Order of

the Immigration and Naturalization Service

_________________________________________________

(August 26, 1993)

(Opinion June 18, 5th Dir., 1993, _______F.2d________)

ON PETITION FOR REHEARING

BEFORE KING, DAVIS, and WIENER, Circuit Judges.

BY THE COURT:

IT IS ORDERED that the Petition for Rehearing filed on behalf

of Respondent, the Immigration and Naturalization Service (INS), be

and hereby is DENIED.

In its petition, the INS reurges with renewed vi gor and

additional citation its argument that it may collaterally attack an

adjudication of citizenship. Despite the INS's additional

arguments, we adhere to our panel decision.

We need not repeat the facts of this case, but pause only to

summarize. Under the immigration laws, Juan Jaime Medina, born of

an American father, was himself an American citizen provided that2

he complied with a two year residency requirement. In 1985, an

Immigration Judge (IJ) held in an adjudicatory proc eeding that

Medina had met the statutory requirement, although the IJ applied

the incorrect standard. The INS, sharing this error, conceded

Medina's citizenship and waived appeal. Two years later, the INS

initiated new pro ceedings against Medina, claiming that he was

deportable under § 241(a)(1) of the Immigration and Nationality Act

(INA), which provides:

Any alien in the United States (i ncluding an alien

crewman) shal l, upon order of the Attorney General, be

deported who SQ (1) at the time of entry was within one or more of the classes of aliens excludable by the law

existing at the time of such entry.

In our panel opinion we held that the subsequent proceeding was

precluded by res judicata.

Few legal doctrines are more intrinsic or necessary in our

system than res judicata. That doctrine, which provides that a

valid and final judgment precludes a second suit between the same

parties on the same claim or any part thereof, ensures that

litigation will come to an end. Were we to accept the INS's

arguments, we would carve out a large exception to this venerable

doctrine, one that would allow the agen cy to eschew direct

appeals SQ

either inadvertently, th r ough error, or consciously as a

strateg ic decision S Q then, years later, collaterally attack

decisions of immi gration judges. The INS presents no persuasive

argument or authority to convince us to take such a drastic step.

In its rehearing petition, the INS argues that application of

administrative res judicata or collateral estoppel is subject to1 478 U.S. 788 (1986).

2 111 S.Ct. 2166 (1991).

3 Astoria , 111 S.Ct. at 2169.

3 the direction of Congress, citing University of Tennessee v.

E lliott

, 1 and Astoria Federal Savings and Loan Association v.

Solimino

. 2 But these cases dealt with state administrative

findings under Title VII and the Age Discrimination in Employment

Act. In each case, the Supreme Court held that unreviewed adverse

findings by a state administrative judge did not preclude the

plaintiff from filing a claim in fed eral court. The Court also

held that "when the interpretation of a statute is at hand. . . .

the question is not whether administrative esto ppel is wise but

whether it is intended by the legislature." 3

We do not quarrel with the correctness of these opinions; they

are simply inapplicable to the instant case. In making its

argument, the INS overlooks an important distinction between the

state administrative proceedings required under Title VII and the

ADEA on the one hand and the review of a determination of

citizenship on the other. In Title VII and ADEA claims, the

plaintiff is required to exhaust those state remedies before

bringing a claim in federal court. In other words, the plaintiff

brings suit in federal court. Obviously, under such a system, the

determination in the state administra tive proceeding cannot bind

t he federal court or there could never be a federal c ause of

action. The exhaustion of state remedies requirement has several

purposes, but elimination of the claim is not one of them.4 See INA § 105a(a), 8 U.S.C. § 1105a(a)(exclusive procedure

for judicial review of orders of deportation and exclusion

governed by 28 U.S.C. § 2341 et seq., which vests exclusive

jurisdiction in the Court of Appeals).

5 8 U.S.C. § 1105a(a)(5). That section reads:

Claim of Nationality; determination or transfer to

district court for hearing de novo. Whenever any

petitioner, who seeks review of an order under this

section, claims to be a national of the United States

and makes a showing that his claim is not frivolous,

the court shall (A) pass upon the issues presented when

it appears from the pleadings and affidavits filed by

the parties that no genuine issue of material fact is

presented; or (B) where a genuine issue of material

fact as to the petitioner's nationality is presented,

transfer the proceedings to a United States district

court for the district where the petitioner has his

residence for hearing de novo of the nationality claim

and determination as if such proceedings were

originally initiated in the district court under the

provisions of section 2201 of title 28.

6 Agosto v. INS , 436 U.S. 748, 753 (1978)(emphasis added).

4 In contrast, when determining citizenship neither the

petitioner nor the INS brings a new suit in federal court; rather,

under the INA, they seek review of an IJ's decision. Accordingly,

the proper procedure to review an IJ's holding is an appeal to the

Board of Immigration Appeals (BIA); the decision of the BIA is

appealed directly to the Court of Appeals. 4 By enacting §

105a(a)(5), 5 "Congress carved out one class of cases

. . . where de

novo review i n district court claims of nationality w ould be

available : cases in which the person subject to deportation claims

to be a United States citizen." 6 Under that section, the Court of

Appeals may transfer the claim for a de novo review by the district

court if there is a genuine issue of material fact.

The INS now urges th at Medina is entitled to that7 Id. (quoting Ng Fung Ho v. White , 259 U.S. 276, 284

(1922)).

5 determination in district court. We note in passing that the

language of the provision is phrased to protect the petitioner

seeking recognition of his or her citizenship, not the INS.

Section 105a(a)(5) was prompted by Supreme Court cases recognizing

"that the Constitution requires that there be some provision for de

novo judicial determination of claims to Amer ican citizenship in

deportation proceedings. . . . `To deport one who . . . claims to

be a citizen, obviously deprives him of liberty.

. . . [and] may

result also in loss of both property and life; or of all that makes

life worth living.'" 7 Moreover, the transfer to the district court

is not automatic, but occurs only after determinations by the Court

of Appeals. Thus, at most, the INS could have attempted to obtain

from us a transfer to the district court for a de novo review of

Medina's claim.

At the heart of this case, however, is the INS's failure to

grasp or refusal to accept that the agency must seek such a

determination on direct appeal or suffer res judicata preclusion.

These review proceedings do not exist separately as do the federal

claims under Title VII or the ADEA. Here, when the INS failed to

take advantage of the appeals process, res judicata mandated that

the agency be precluded from successive attempts to relitigate the

question of Medina's citizenship. Certainly, the Supreme Court's

recognition that claims to American citizen ship in deportation

proceedings implica te liberty and property rights supports our6

conclusion, reiterated today, that a final, uncontested g rant of

citizenship cannot be revisited at the INS's pleasure.

ENTERED FOR THE COURT:

__________________________________ United States Circuit Judge