IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60254

MARIE IVES GREGOIRE,

Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

Respondent

Petitions for Review of an Order

of the Board of Immigration Appeals

(A75 394 639)

Before REAVLEY, JOLLY, and STEWART, Circuit Judges.

PER CURIAM:

*

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.

United States Court of Appeals

Fifth Circuit

F I L E D

April 8, 2011

Lyle W. Cayce

Clerk

 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.

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No. 09-60254

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 petition 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 State citizen. The

parties failed to alert this court of 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 March 12, 2009 Order.

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 Espinal v. Holder. __ F.3d __, 2011 WL 1049508 (5th Cir., March

24, 2011). In Espinal we joined the majority of circuits in holding that the grant

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No. 09-60254

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 November 17 Order was a final order of

deportation, whereas the March 12 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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