* 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this opinion should not be published and is not precedent except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. R. 47.5.4.

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40561

JULIO LOA-HERRERA; RAMIRO CANTU-GRACIA; JUANA GUZMAN-ASCENCIO;

EFRAIN MERINO; ARTURO LOZANO-LOPEZ; ALEJANDRA GUTIERREZ; JUAN

SANCHEZ-SALINAS; ADELITA CANTU DE CABRERA

Plaintiffs - Appellants

v.

DEPARTMENT OF HOMELAND SECURITY, Harlingen Division

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas, Brownsville

USDC No. 1:94-CV-215

Before KING, DeMOSS, and OWEN, Circuit Judges.

PER CURIAM:*

The plaintiff class, which consists of lawful permanent

residents facing pending deportation or exclusion proceedings,

appeals the district court’s grant of summary judgment for the

government, contending that the court improperly limited the

scope of proceedings on remand from their prior appeal, LoaUnited States Court of Appeals

Fifth Circuit

F I L E D

June 5, 2007

Charles R. Fulbruge III

Clerk
1 Many of the events of this case involved the Immigration

and Naturalization Service (“INS”). However, as of March 1,

2003, the INS’s administrative, service, and enforcement

functions were transferred to the newly formed DHS. See Zaidi v.

Ashcroft, 374 F.3d 357, 358 n.1 (5th Cir. 2004). To avoid

confusion, we will refer solely to DHS as the relevant government

agency in this opinion.

2

Herrera v. Trominski, 231 F.3d 984 (5th Cir. 2000). For the

following reasons, we AFFIRM in part, VACATE in part, and REMAND

for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff class includes all lawful permanent residents

(“LPRs”) who are faced with pending deportation or exclusion

proceedings in which no final order of deportation or exclusion

has yet been entered, who are not presently held in detention,

and whose immigration documents have been confiscated by the

Harlingen, Texas, office of the Department of Homeland Security

(“DHS”).1 Plaintiffs’ class action challenges DHS’s practice of

seizing an LPR’s laminated Form I-151 or I-551 (“green card”) and

issuing in its place an I-94 “Temporary Evidence of Lawful

Permanent Resident” form with extraneous notations revealing that

the holder is facing removal proceedings. Plaintiffs also

contend that DHS improperly confiscates other government

documents from LPRs, such as driver’s licenses and social
2 The order provides:

1. Pursuant to the intent of the McNary Memorandum,

Defendants shall only confiscate the laminated Form

I-151 or I-551 of a non-arriving lawful permanent

resident placed under expulsion proceedings, and

not held in custody, when the INS District

Director, chief patrol agent, or officer in charge

determines that a temporary document is needed for

a justifiable, particularized reason, based on the

individual facts of the case. When such a

resident's green card is confiscated, Defendants

shall provide temporary evidence of lawful

3

security cards, and fails to provide LPRs with notice and a

hearing to determine whether they should be paroled within the

United States pending a final determination in their removal

proceedings.

In January 1999, the district court granted injunctive

relief to plaintiffs, issuing an order regulating DHS’s

confiscation of green cards and issuance of I-94 forms, requiring

DHS to afford parole hearings to LPRs placed under expulsion

proceedings, and prohibiting DHS from confiscating other

government documents from LPRs absent a good faith belief that

the documents are bona fide evidence of unlawful conduct.2 This
permanent resident status, which shall be prepared

in accordance with Operation Instruction 264.2, and

shall be issued for at least six months, and shall

contain a notation that it is renewable.

2. When a permanent resident applying for admission

to the U.S. is placed under expulsion proceedings,

Defendants may confiscate the resident's green

card, but shall afford said person a prompt hearing

before an Immigration Judge, in accordance with 8

C.F.R. § 236.1, to determine whether he or she

should be paroled into the U.S. during the pendency

of said proceedings, and if so, under what

conditions. If the person is so paroled, and not

held in custody, Defendants shall provide a

substitute document evidencing permanent resident

status, and entitlement to be employed in the U.S.;

and

3. Defendants shall not confiscate any other

lawfully issued documents from permanent residents,

absent a good faith belief that such documents

constitute bona fide evidence of unlawful conduct.

4

court vacated that order in October 2000 and remanded for further
5

proceedings. Loa-Herrera v. Trominski, 231 F.3d 984, 987 (5th

Cir. 2000). Specifically, this court held, inter alia, that the

district court improperly relied on an internal government policy

memorandum in granting plaintiffs relief on the question of

confiscation and issuance of immigration documents, and we

remanded “so the [district] court can determine whether an

injunction is appropriate in light of” 8 C.F.R. § 264.5(g)

(2000). Id. at 989. This court further noted the government’s

claim that the district court failed to give the government an

opportunity to present argument before issuing its order, and we

observed that on remand, DHS “assuredly will have ample

opportunity to press any additional legal or factual arguments it

wishes to make and thereby to cure any procedural defects

regarding the order.” Id. at 988. We also held that the

district court lacked jurisdiction to adjudicate deprivations of

plaintiffs’ rights to parole under 8 U.S.C. § 1226(e).

On remand, plaintiffs initially sought to obtain additional

discovery on the parole question but were denied when the

district court granted the government’s motion for a protective

order. The district court also denied plaintiffs’ motion for

leave to amend the pleadings. In September 2002, the magistrate

judge determined that two issues remained on remand: first,

whether the manner in which DHS exercises its parole authority

with respect to LPRs who were not arrested on a warrant is

constitutional, and second, whether certain legal authorities
6

limit DHS’s ability to place notations on temporary green cards

that disclose personal information. After briefing, the

magistrate judge recommended that summary judgment be granted in

favor of the government on the first issue, finding that

plaintiffs’ challenge on the parole issue was foreclosed by

Supreme Court precedent. The judge further recommended that

summary judgment be granted in favor of plaintiffs on the second

issue, determining that the placement of extraneous notations on

immigration documents issued per 8 C.F.R. § 264.5(g) violates

LPRs’ confidentiality rights under 8 U.S.C. § 1304(b).

In February 2006, the district court declined to adopt in

part and modified in part the magistrate judge’s recommendation. 

On the parole claim, the district court found that “[t]he Fifth

Circuit did not remand any portion of this issue to this Court”

and held that it therefore did not have jurisdiction to consider

additional arguments on the parole issue. With regard to the

extraneous notations claim, the district court construed the sole

issue on remand as whether an injunction was appropriate under

the terms of 8 C.F.R. § 264.5(g) and held that the provision does

not prohibit notations on the documents. Accordingly, the court

granted summary judgment for the government and denied the

plaintiffs’ sought injunction. The court did not explicitly

address the third issue from the original order, which was

whether DHS improperly confiscates other government documents

from plaintiffs.
7

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo, viewing all

evidence in the light most favorable to the nonmoving party and

drawing all reasonable inferences in that party’s favor. See

Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.

2000). “Summary judgment is proper when the evidence reflects no

genuine issues of material fact and the non-movant is entitled to

judgment as a matter of law.” Id. (citing FED. R. CIV. P. 56(c)). 

The denial of a preliminary or permanent injunction is reviewed

for abuse of discretion. See Speaks v. Kruse, 445 F.3d 396, 399

(5th Cir. 2006); Test Masters Educ. Servs., Inc. v. Singh, 428

F.3d 559, 576 (5th Cir. 2005). Moreover, “[w]e review de novo a

district court's interpretation of our remand order, including

whether the law-of-the-case doctrine or mandate rule forecloses

any of the district court's actions on remand.” United States v.

Pineiro, 470 F.3d 200, 204 (5th Cir. 2006) (italics omitted).

III. DISCUSSION

Plaintiffs contend that the district court improperly

limited proceedings on remand in three ways. First, plaintiffs

argue that the panel in the first appeal relied on an erroneous

premise in disposing of their parole claim and that the district

court thus erred in refusing to reconsider the claim. They also

contend that the district court erred in limiting its analysis on

the extraneous notations issue to only 8 C.F.R. § 264.5(g),
8

urging that the court should have also considered the effect of 8

U.S.C. § 1304(b) and the Privacy Act, 5 U.S.C. § 552a(b). 

Finally, plaintiffs object to the district court’s failure to

address the legality of DHS’s practice of confiscating other

government documents, a claim that plaintiffs believe was not

disposed of in their prior appeal.

“This court has a limited scope of review after remand.” 

Energy Mgmt. Corp. v. City of Shreveport, 467 F.3d 471, 476 (5th

Cir. 2006). On a second appeal following remand, we must

consider whether the court below reached its decision in due

pursuance of our previous opinion and mandate, Volk v. Gonzalez,

262 F.3d 528, 533 (5th Cir. 2001), and “[t]he district court's

statements about our prior opinion and that opinion's binding

effect on the district court are properly analyzed under the law

of the case doctrine.” United States v. Elizondo, 475 F.3d 692,

695 (5th Cir. 2007). Under this doctrine, “an issue of law or

fact decided on appeal may not be reexamined either by the

district court on remand or by the appellate court on a

subsequent appeal.” United States v. Becerra, 155 F.3d 740, 752

(5th Cir. 1998) (internal quotation marks omitted) (quoting Ill.

Cent. Gulf R.R. Co. v. Int’l Paper Co., 889 F.2d 536, 539 (5th

Cir. 1989)), abrogated on other grounds as recognized by United

States v. Farias, 481 F.3d 289, 291-92 (5th Cir. 2007). “This

prohibition covers issues decided both expressly and by necessary

implication, and reflects the jurisprudential policy that once an
9

issue is litigated and decided, ‘that should be the end of the

matter.’” Pineiro, 470 F.3d at 205 (quoting United States v.

Lee, 358 F.3d 315, 320 (5th Cir. 2004)) (internal quotation marks

omitted). The mandate rule is a corollary of this doctrine and

provides “that a lower court on remand must implement both the

letter and spirit of the appellate court’s mandate” and may not

deviate from the directives of that court. Becerra, 155 F.3d at

753 (internal quotation marks, alteration marks, and citation

omitted).

A. Parole

Plaintiffs concede that the mandate rule generally bars

reconsideration of their parole claim, but contend that

exceptions to the rule spare them this consequence. “Three

exceptions to the imposition of this rule are recognized: (1)

[i]ntroduction of evidence at a subsequent trial that is

substantially different; (2) an intervening change in controlling

authority; and (3) a determination that the earlier decision was

clearly erroneous and would work a manifest injustice.” Pineiro,

470 F.3d at 205-06. Plaintiffs argue that the second and third

exception apply here.

With regard to the clear error and manifest injustice

exception, plaintiffs argue that the panel in their first appeal

relied on an error in determining that 8 U.S.C. § 1226(e) barred

jurisdiction over their parole claims. According to plaintiffs,
10

they never invoked § 1226 as the governing authority, and the

government is to blame for representing to this court that § 1226

was the relevant statute permitting parole of the LPRs involved

in this class action. The statute authorizes, inter alia,

conditional parole of LPRs arrested “[o]n a warrant issued by the

Attorney General,” 8 U.S.C. § 1226(a), and plaintiffs point out

that 8 U.S.C. 1182(d)(5) governs discretionary parole of arriving

aliens who were not arrested, such as the LPRs in the plaintiff

class. Because § 1182(d)(5) is not subject to the jurisdictional

bar of § 1226(e), plaintiffs argue that they are entitled to

pursue their constitutional claims related to parole under

§ 1182(d)(5).

The government now acknowledges that § 1182(d)(5) is the

proper mechanism for parole of the class members in this case,

but argues that the prior appeal’s focus on § 1226 originated

from plaintiffs, as the district court’s original order on the

parole issues, which was drafted by plaintiffs, required parole

hearings “in accordance with 8 C.F.R. § 236.1.” The government

observes that the portions of that provision detailing an

immigration judge’s authority with regard to aliens in custody is

based in the authority granted by 8 U.S.C. § 1226, which is why

the prior appeal’s parole inquiry centered on that provision.

Assuming arguendo that the previous panel’s reliance on

§ 1226 was clearly erroneous, we disagree with plaintiffs’

contention that it caused a manifest injustice. In response to
11

the government’s contention in the prior appeal that § 1226 was

applicable, plaintiffs only responded that the relevant parole

authority stemmed instead from 8 U.S.C. § 1225(b)(2)(C). We

rejected this contention because § 1225(b)(2)(C) “only authorizes

the Attorney General to return an applicant for admission to

Mexico pending the exclusion proceedings,” whereas § 1226 relates

to parole within the United States. Loa-Herrera, 231 F.3d at

991. Nowhere in their brief did plaintiffs cite § 1182(d)(5),

much less contend that the § 1226(e) jurisdictional bar did not

apply to that statutory provision. Plaintiffs had the motivation

and the opportunity to respond to the government’s § 1226(e)

argument by citing § 1182(d)(5) as the proper authority, and we

decline to revisit the prior panel’s conclusions merely because

plaintiffs have thought of better arguments after the disposition

of their parole claim. Cf. United States v. Becerra, 155 F.3d at

755-56 (finding no manifest injustice “where the party claiming

injustice had all the means and incentive to provide the relevant

information in the first appeal”); Lyons v. Fisher, 888 F.2d

1071, 1075 (5th Cir. 1989) (declining to find manifest injustice

where the party claiming injustice failed to adduce the relevant

evidence before the first appeal “despite his having both the

reason and opportunity to do so”). The circumstances in this

case simply do not rise to the “extraordinary level” required to
3 Moreover, we have recognized that “courts rarely invoke

this exception to the law of the case doctrine and when they do,

it is because of post-decision changes in evidentiary facts or in

the applicable law and not because the subsequent panel disagreed

with the earlier panel's legal conclusions.” Af-Cap Inc. v.

Republic of Congo, 383 F.3d 361, 367 n.6 (5th Cir. 2004). 

Neither of these circumstances exists here.

12

find manifest injustice.3 Becerra, 155 F.3d at 755-56.

We also disagree with plaintiffs’ contention that the

“intervening change in controlling authority” exception to the

law-of-the-case doctrine is applicable here. Plaintiffs argue

that recent Supreme Court cases hold that constitutional

challenges to the statutory framework detailed in § 1226 are not

barred by § 1226(e). See Demore v. Kim, 538 U.S. 510, 516-17

(2003); Zadvydas v. Davis, 533 U.S. 678, 688 (2001). But even if

plaintiffs are correct, they now clarify that their challenge is

to the exercise of the parole authority detailed in § 1182(d)(5),

not § 1226. Accordingly, any change in the law governing

challenges to § 1226 is irrelevant to the arguments that

plaintiffs seek to pursue.

We therefore affirm the district court’s grant of summary

judgment on the parole claim.

B. Extraneous Notations

For purposes of the extraneous notations claim, the prior
13

panel remanded “so the court can determine whether an injunction

is appropriate in light of § 264.5(g).” Loa-Herrera, 231 F.3d at

989. The district court construed this mandate narrowly, looking

only at whether the terms of § 264.5(g) proscribe extraneous

notations on the relevant immigration documents. Guided by the

prior panel’s observation that “[t]he regulation plainly does not

restrict [DHS] from attaching additional notations,” id.

(emphasis omitted), the district court granted summary judgment

for the government. Plaintiffs argue that the district court

excessively limited the scope of proceedings on remand and should

have considered their claims that extraneous notations are barred

by other legal authority, such as 8 U.S.C. § 1304(b) and the

Privacy Act, 5 U.S.C. § 552a(b).

We agree with plaintiffs that the proper scope of remand was

broader than the district court construed it to be. When our

court analyzed the legal authority regulating issuance of

temporary documents to LPRs in exclusion and deportation

proceedings, remand was required because the district court had

improperly relied on an internal government policy memorandum

instead of § 264.5(g), a regulation that was cited by neither the

district court nor any party. Although the mandate required

consideration of plaintiffs’ sought injunction “in light of”

§ 264.5(g), we do not read this as restricting the inquiry on

remand solely to the question of whether the terms of § 264.5(g)

prevent DHS from including extraneous notations on the temporary
14

documents. Rather, we read the mandate as directing the district

court to determine whether an injunction is appropriate on the

grounds proffered by plaintiffs in support of the injunction,

given that § 264.5(g) regulates issuance of the temporary

documents instead of the internal government policy memorandum on

which the district court previously relied.

This reading of the mandate is confirmed by the panel’s

observations regarding the scope and meaning of § 264.5(g), which

were meant to guide the district court on remand. Our court

recognized that § 264.5(g) does not prohibit the placement of

extraneous notations on temporary immigration documents and that

“[a]bsent any legal authority to the contrary,” the district

court may not interfere with the Attorney General’s statutory

discretion as expressed in the terms of the regulation. LoaHerrera, 231 F.3d at 989-90. The panel plainly expected the

district court to consider whether other legal authority

interferes with § 264.5(g) and to deny the sought injunction if

no such authority is identified. Consideration of the injunction

“in light of” § 264.5(g) would be incomplete if plaintiffs were

unable to challenge the legality of actions taken pursuant to

that regulation.

Accordingly, we vacate the district court’s grant of summary

judgment on the temporary documents issue and remand so that the

court can determine whether an injunction is appropriate given

the requirements of § 265.5(g), with consideration devoted to
15

whether any other legal authority contravenes the Attorney

General’s statutory discretion to balance the interests of LPRs

and employers as reflected in § 264.5(g). See Loa-Herrera, 231

F.3d at 989-90.

C. Other Government Documents

As plaintiffs point out, the prior panel vacated the

district court’s entire order. Although the panel’s opinion

explicitly described the portion of the district court’s order

prohibiting DHS from confiscating other government documents from

LPRs under certain circumstances, the opinion was not explicit

about what should be done on remand with that portion of the

order. The plaintiffs urge that we reinstate it.

Although the prior panel’s mandate did not specifically

order the district court to consider plaintiffs’ claim regarding

the confiscation of other government documents, the scope of

remand did not exclude its consideration either. In vacating the

entire order and remanding to give the government an opportunity

to press its legal and factual arguments against the order——an

opportunity that the government claimed it was denied the first

time around——the panel implicitly permitted the entire order be

considered again except as otherwise mandated by the opinion. 

See Loa-Herrera, 231 F.3d at 988. And while the panel disposed

of the aspects of the order involving plaintiffs’ parole claim

and directed the appropriate inquiry on the extraneous notations
4 Although the government asks this court to hold that the

claim was not properly pled by the plaintiffs, such an argument

would be more appropriately presented to the district court on

remand.

16

claim, the claim with respect to the other government documents

was unaddressed.

On remand, the district court did not explicitly address

this claim, and it is unclear whether the court believed that it

was prevented from doing so under the terms of the mandate or

whether the court disposed of the claim for some other reason. 

We therefore vacate the district court’s order to the extent that

it finds the claim outside of the scope of remand, and we remand

for the district court’s consideration of plaintiffs’ sought

injunction concerning the confiscation of other government

documents.4

We also note that on remand, the government remains free to

“press any additional legal or factual arguments it wishes to

make,” both with respect to the extraneous notations claim and

the other government documents claim, as provided in the previous

mandate. See Loa-Herrera, 231 F.3d at 988.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment to the government on the parole issue,

VACATE the grant of summary judgment on the extraneous notations
17

and other government documents issues, and REMAND for

consideration of the extraneous notations and other government

documents claims as specified in this opinion.