Abner Arcos Sanchez v. Attorney General United States ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No: 20-1843
_______________
ABNER ANTONIO ARCOS SANCHEZ,
a/k/a Abner Arcos, a/k/a Abner Sanchez,
a/k/a Abner A. Snachez-Acros, a/k/a Abner Antonio
Acros-Sanchez,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_______________
On Petition for Review of an Order of the
Board of Immigration Appeals
(BIA 1:A204-362-439)
Immigration Judge: Mirlande Tadal
_______________
Argued: January 26, 2021
Before: JORDAN, MATEY, Circuit Judges,
and HORAN, * District Judge.
(Filed: May 5, 2021)
_______________
Jerard A. Gonzalez [ARGUED]
BASTARRIKA SOTO GONZALEZ & SOMOHANO
3 Garret Mountain Plaza - Suite 302
Woodland Park, NJ 07424
Cheryl Lin
338 Palisade Avenue - Suite 255
Jersey City, NJ 07307
Counsel for Petitioner
William P. Barr
Micah Engler
Brendan P. Hogan [ARGUED]
UNITED STATES DEPARTMENT OF JUSTICE
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
*
Honorable Marilyn Horan, United States District
Judge for the Western District of Pennsylvania, sitting by
designation.
2
_______________
HORAN, District Judge.
Abner Antonio Arcos Sanchez petitions for review of
the Board of Immigration Appeals’ (“Board”) decision
dismissing his appeal of an Immigration Judge’s (“IJ”) denial
of his application for asylum, withholding of removal under 8
U.S.C. § 1231(b)(3), and withholding of removal under the
Convention Against Torture (“CAT”). The Board also denied
Arcos Sanchez’s request for remand to the IJ for administrative
closure, which would have given time for renewal of his
Deferred Action for Childhood Arrivals (“DACA”) status. On
this latter issue, the Board cited then Attorney General
Sessions’ decision in Matter of Castro-Tum, 27 I. & N. Dec.
271 (A.G. 2018). The Board determined that the IJ and the
Board did not have authority to administratively close
proceedings, unless a “regulation or a previous judicially
approved settlement expressly authorizes such an action” as set
forth in Castro-Tum. A.R. 4. As such, remand for
consideration of administrative closure, while Arcos Sanchez
pursued DACA status renewal, was denied. For the reasons
we discuss below, we grant Arcos Sanchez’s petition for
review, vacate the Board’s decision, and remand for
proceedings consistent with this opinion.
I. Facts and Procedural History
In 2002, at the age of seven, Arcos Sanchez, a native
and citizen of Mexico, entered the United States without
3
inspection. In 2012, he applied for DACA 1 status, which was
approved. The Department of Homeland Security periodically
granted his requests for renewals. On April 8, 2019, Arcos
Sanchez was arrested and charged in New Jersey with sexual
assault and endangering the welfare of a child. On May 17,
2019, based upon that arrest and those charges, the United
States Citizenship and Immigration Services (“USCIS”)
revoked Arcos Sanchez’s DACA status. In June 2019, the
1
Since June 15, 2012, DACA has granted certain
immigrant children and young adults deferred action, a form of
prosecutorial discretion where the Department of Homeland
Security (“DHS”) formally decides not to pursue removal of
otherwise deportable non-citizens. See DHS, Memorandum
from Sec’y of Homeland Sec. Janet Napolitano, “Exercising
Prosecutorial Discretion with Respect to Individuals Who
Came to the United States as Children, (June 15, 2012),
https://www.dhs.gov/xlibrary/assets/s1-exercising-
prosecutorial-discretion-individuals-who-came-to-us-as-
children.pdf, Addendum A (“Napolitano Memorandum”). To
be considered for DACA, applicants must satisfy the
requirements set forth in the Napolitano Memorandum.
Specifically, the applicant must: 1. Have entered the United
States under the age of 16; 2. Have continuously resided in the
United States since June 15, 2007; 3. Be currently enrolled in
school, have graduated from high school, have obtained a
general education development certificate, or have been
honorably discharged from the U.S. Coast Guard or Armed
Forces; 4. Have not been convicted of a felony offense, a
significant misdemeanor offense, multiple misdemeanor
offenses, or are otherwise not a threat to national security or
public safety; and 5. Have been under the age of 30 as of
June 5, 2012. Napolitano Memorandum at 1.
4
Department of Homeland Security took Arcos Sanchez into
custody, served him with a Notice to Appear, and charged him
as being present without having been admitted or paroled. See
8 U.S.C. § 1182(a)(9)(B)(ii).
In removal proceedings before the IJ, Arcos Sanchez
applied for asylum, withholding of removal, and for relief
under CAT. The IJ denied asylum, finding that Arcos Sanchez
failed to meet the one-year filing deadline or show
extraordinary circumstances in the delay. The IJ denied
withholding of removal, finding the proposed social group was
not cognizable. Finally, the IJ denied his CAT claim, finding
he did not demonstrate at least a fifty percent chance he would
be tortured upon his return to Mexico. On November 6, 2019,
the IJ issued his decision and ordered Arcos Sanchez’s removal
to Mexico. Two weeks later, his state criminal charges were
dismissed.
On appeal to the Board, Arcos Sanchez challenged the
IJ’s decision and requested the Board remand his case to the IJ
for consideration of administrative closure. He argued that,
because the state criminal charges were dismissed, he was
“eligible for renewal of his DACA and re-filed with UCIS on
January 28, 2020[,]” which would impact the disposition of his
removal proceeding. A.R. 26. The Board denied remand,
citing the binding precedent of then-Attorney General
Sessions’ Castro-Tum decision, which held that, under the
regulations governing the Executive Office of Immigration
Review, IJs and the Board do not have the general authority to
indefinitely suspend immigration proceedings by
administrative closure. The Board found that, since Arcos
Sanchez did not show that his request for remand for
administrative closure fell within the express exceptions under
5
Castro-Tum, his case could not be administratively closed. 27
I. & N. Dec. at 283. 2 Arcos-Sanchez petitioned for review of
the Board’s decision.
II. Jurisdiction
We have jurisdiction to review petitions under 8 U.S.C.
§ 1252(a). We review legal conclusions of the Board de novo,
subject to established rules of deference. Da Silva v. Att’y Gen.
of the U.S., 948 F.3d 629, 633 (3d Cir. 2020). Here, we are
presented with the question whether then Attorney General
Sessions’ Castro-Tum decision properly concluded that 8
C.F.R. §§ 1003.1(d)(1)(ii) and 1003.10(b) unambiguously do
not grant IJs and the Board the general authority to
administratively close cases. The Board denied Arcos
Sanchez’s remand request based on the Attorney General’s
conclusion that there is no such general authority. Arcos
Sanchez challenges the Board’s reliance on that conclusion,
which we will review de novo. See Da Silva, 948 F.3d at 633.
III. History of Administrative Closure
A. Pre Castro-Tum
Since at least the 1980s, IJs and the Board have utilized
administrative closure as a docketing tool to remove cases from
their active dockets as a matter of “administrative
2
As noted below, the Department of Justice amended 8
C.F.R. §§ 1003.1(d)(1)(ii) and 1003.10(b) for removal
proceedings initiated after January 15, 2021. As this matter
was initiated before January 15, 2021, the Court reviews the
pre-amendment text.
6
convenience.” In re Gutierrez-Lopez, 21 I. & N. Dec. 479, 480
(B.I.A. 1996) (internal quotation marks omitted); see also
Matter of Amico, 19 I. & N. Dec. 652, 654 n.1 (B.I.A. 1988)
(“The administrative closing of a case does not result in a final
order,” but “is merely an administrative convenience which
allows the removal of cases from the calendar in appropriate
situations.”). Administrative closure allows an IJ or the Board
to “temporarily pause removal proceedings” and place the case
on hold because of a pending alternative resolution or because
events outside the control of either party may affect the case.
Matter of W-Y-U-, 27 I. & N. Dec. 17, 18 (B.I.A. 2017).
Even though IJs and the Board have used general
administrative closure for almost three decades, the
Immigration and Naturalization Act (“INA”) and the
regulations governing IJs or the Board do not expressly
authorize the practice. See Vahora v. Holder, 626 F.3d 907,
917-18 (7th Cir. 2010) (noting that the general power to
administratively close a case is employed by quasi-judicial
bodies for “orderly management of the docket” and is
reviewable by courts). Although the INA and its regulations
do not specifically reference general administrative closure
authority, the regulations both explicitly and implicitly confer
broad powers on IJs and the Board to manage their dockets. As
regards IJs’ authority, 8 C.F.R. § 1003.10(b) concerns their
“powers and duties” and states in relevant part:
In conducting hearings under section 240 of the
Act and such other proceedings the Attorney
General may assign to them, immigration judges
shall exercise the powers and duties delegated to
them by the Act and by the Attorney General
through regulation. In deciding the individual
7
cases before them, and subject to the applicable
governing standards, immigration judges shall
exercise their independent judgment and
discretion and may take any action consistent
with their authorities under the Act and
regulations that is appropriate and necessary for
the disposition of such cases. ... In all cases,
immigration judges shall seek to resolve the
questions before them in a timely and impartial
manner consistent with the Act and regulations.
Id. (emphases added). In addition, 8 C.F.R. § 1240.1(a)(iv)
provides that IJs shall have the authority in any removal
proceeding to “take any other action consistent with applicable
law and regulations as may be appropriate.” As regards the
Board’s authority, 8 C.F.R. § 1003.1(d)(1)(ii) states that Board
members:
shall exercise their independent judgment and
discretion in considering and determining the
cases coming before the Board, and a panel or
Board member to whom a case is assigned may
take any action consistent with their authorities
under the Act and the regulations as is
appropriate and necessary for the disposition of
the case.
Id. (emphases added).
Aside from regulations, Board decisions have also
recognized the authority for IJs and the Board to
administratively close cases, at first only if it was not “opposed
by either of the parties.” Matter of Gutierrez-Lopez, 21 I. & N.
8
Dec. at 479. In Matter of Avetisyan, the Board endorsed the
administrative closure practice and held that both 8 C.F.R.
§§ 1003.10(b) and 1003.1(d)(1)(ii) empower IJs and the Board
to “take any action…as is appropriate and necessary for the
disposition of [a] case.” 25 I. & N. Dec. 688, 691 (B.I.A.
2012). The Board applied a six-factor test to determine
whether administrative closure was appropriate, regardless of
government opposition. See Avetisyan, 25 I. & N. Dec. at 696.
It explained that, “[d]uring the course of proceedings, an [IJ]
or the [Board] may find it necessary or, in the interests of
justice and fairness to the parties, prudent to defer further
action for some period of time.” Id. The Board described two
mechanisms to defer action: continuance and administrative
closure. “[A] continuance may be appropriately utilized to
await additional action required of the parties that will be, or is
expected to be, completed within a reasonably certain and brief
amount of time.” Id. However, the Board observed in
Avetisyan that when the parties must “await an action or event
that is relevant to immigration proceedings but is outside the
control of the parties or the court and may not occur for a
significant or undetermined period of time,” removing a case
from the docket via administrative closure may be
“appropriate.” Id. at 692.
In addition, as described by the Board, administrative
closure can facilitate “efficient management of the resources
of the immigration courts and the Board.” Id. at 695; see also
Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 889-90 (9th Cir.
2018) (citing Matter of Avetisyan as authority for
administrative closure). Under this framework, the Board has
issued decisions recognizing the authority for IJs to
administratively close cases for many reasons related to the
interests of justice or to the conservation of court resources.
9
See e.g. Matter of Montiel, 26 I. & N. Dec. 555 (B.I.A. 2015)
(holding administrative closure appropriate when a petitioner
is awaiting resolution of a criminal conviction direct appeal).
The Board reaffirmed Avetisyan in Matter of W-Y-U-, and
clarified that “the primary consideration for an Immigration
Judge in determining whether to administratively close or
recalendar proceedings is whether the party opposing
administrative closure has provided a persuasive reason for the
case to proceed and be resolved on the merits. 27 I. & N. Dec.
at 20.
B. Castro-Tum
On May 17, 2018, in Matter of Castro-Tum, then
Attorney General Sessions employed administrative
adjudication under 8 C.F.R. § 1003.1(h)(1)(i), holding that IJs
and the Board lack the authority to administratively close cases
“except where a previous regulation or settlement agreement
has expressly conferred it.” 27 I. & N. Dec. at 283. In that
decision, the Attorney General overruled the contrary rulings
from Avetisyan and W-Y-U-. This decision reversed the
decades-old practice of administrative closure, endorsed by
Board decisions and rooted in prior interpretations of 8 C.F.R.
§§ 1003.10(b) and 1003.1(d)(1)(ii). The Attorney General
noted a sharp increase in administratively closed cases between
2011 and 2017, which he linked to the more permissive
standard established by Avetisyan. Id. at 273. And he observed
that no statute or regulation explicitly grants IJs a general
power of administrative closure. In concluding that the
regulations do not implicitly grant authority for administrative
closure, he held that closure cannot be “appropriate and
necessary” to the “disposition” of cases since closure is a
suspension that delays the final resolution of a case. Id. at 285.
10
He further reasoned that a general power to administratively
close cases would conflict with the regulation’s requirement
that IJs “timely” resolve their cases. Id.C. Post Castro-Tum
Since the issuance of Castro-Tum, our sister courts of
appeals have split on whether it was correctly decided. The
Fourth and Seventh Circuits have ruled that the IJ and Board
have general authority to administratively close cases. In
Romero v. Barr, the Fourth Circuit analyzed the regulations at
issue and concluded that they “unambiguously confer upon IJs
and the Board the general authority to administratively close
cases[,]” but even if they are ambiguous, “the Attorney
General’s reading of the regulations does not warrant
deference because it amounts to an ‘unfair surprise.’” 937 F.3d
282, 294-95 (4th Cir. 2019). Similarly, in Meza Morales v.
Barr, the Seventh Circuit concluded that Castro-Tum was
contrary to the unambiguous meaning of the regulations and
that IJs and the Board are “not precluded from administratively
closing cases when appropriate.” 973 F.3d 656, 667 (7th Cir.
2020) (Barrett, J.); see also Zelaya Diaz v. Rosen, 986 F.3d 687(7th Cir. 2021) (applying Meza-Morales). Thus, two circuits
have concluded that the regulations at issue unambiguously
confer general authority for administrative closure and that
Castro-Tum was wrongly decided. On the other hand, in
Hernandez-Serrano v. Barr, the Sixth Circuit held that the
regulations unambiguously do not authorize the general use of
administrative closure and that Castro-Tum was correctly
decided. 981 F.3d 459 (6th Cir. 2020). That court held that
§§ 1003.10 and 1003.1(d) do not delegate to IJs or the Board
11
“the general authority to suspend indefinitely immigration
proceedings by administrative closure.” 3 Id. at 462.
IV. Discussion
Arcos Sanchez argues that 8 C.F.R. §§ 1003.10(b) and
1003.1(d)(1)(ii) unambiguously grant IJs and the Board the
general authority to administratively close cases by authorizing
them to take “any action” that is “appropriate and necessary”
for the disposition of cases. As such, Arcos Sanchez maintains
that Castro-Tum was wrongly decided, and that the Board’s
decision should be vacated and remanded so that he may seek
administrative closure before the IJ. His position reflects the
rulings of the Fourth and Seventh Circuits.
The government, on the other hand, argues that the
Board was correct to apply Castro-Tum, because the
unambiguous text of the regulations does not confer general
authority for administrative closure. This position tracks the
ruling of the Sixth Circuit. In the alternative, the government
argues that, if we should find the regulations are ambiguous,
then we should defer to Castro-Tum. In either case, the
government asks us to uphold the Board’s decision denying
3
On December 16, 2020, the Executive Office of
Immigration Review within the Department of Justice issued a
final rule, endorsing the Sixth Circuit’s position on Castro-
Tum and codifying the Attorney General’s decision on
administrative closure. Appellate Procedures and Decisional
Finality in Immigration Proceedings; Administrative Closure,
85 Fed. Reg. 81588-01 (December 16, 2020). This rule took
effect on January 15, 2021 and is not retroactive to this case.
Id.12
Arcos Sanchez’s request for remand for administrative closure.
We will now address the issue of the general authority of IJs
and the Board to administratively close cases.
Our consideration of the regulations, and in turn Castro-
Tum, begins with review of the language of 8 C.F.R.
§§ 1003.1(d)(1)(ii) and 1003.10(b) to determine whether those
regulations are ambiguous as regards any general authority for
administrative closure. “The basic tenets of statutory
construction apply to construction of regulations.” Pa. Fed’n
of Sportsmen’s Clubs, Inc. v. Kempthorne, 497 F.3d 337, 351
(3d Cir. 2007). “If a statute or rule is unambiguous, we must
give effect to its plain meaning.” Consol Pa. Coal Co., LLC v.
Fed. Mine Safety & Health Review Comm’n, 941 F.3d 95, 104
(3d Cir. 2019) (citing Kisor v. Wilkie, 139 S. Ct. 2400, 2415
(2019)). In Kisor, the Supreme Court admonished that “hard
interpretive conundrums, even relating to complex rules, can
often be solved” without “wav[ing] the ambiguity flag.” 139
S. Ct. at 2415. Indeed, a statute or rule cannot be “genuinely
ambiguous” unless it remains unclear after we have
“exhaust[ed] all the ‘traditional tools’ of construction.” Id.Consequently, our analysis proceeds by “‘carefully
consider[ing]’ the text, structure, history, and purpose” of the
statute or regulation. Id. (citation omitted).
In that regard, the Fourth Circuit in Romero applied the
standard tools of interpretation by first reading the text of the
relevant regulations. Both regulations provide that IJs and the
Board “may take any action ... appropriate and necessary for
the disposition” of the case. 8 C.F.R. §§ 1003.1(d)(1)(ii) &
1003.10(b). In assessing the word “any” for its plain meaning,
Romero opined, “‘any action ... for the disposition of’ the case
is read most naturally to encompass actions of whatever kind
13
appropriate for the resolution of a case.” 937 F.3d at 292
(citation omitted) (emphasis added). The Fourth Circuit
concluded, 4 and we agree, “this would plainly include docket
management actions such as administrative closure, which
often facilitate…case resolution.” Id. Second, Romero
observed, and we agree, that administrative closure qualifies as
an “action” under §§ 1003.10(b) and 1003.1(d)(1)(ii). In fact,
the Castro-Tum decision describes administrative closure as an
action. 27 I. & N. Dec. at 271. Third, Romero noted the only
limitation upon “any action” within the text of §§ 1003.10(b)
and 1003.1(d)(1)(ii) “is that the circumstances be ‘appropriate
4
Romero v. Barr, 937 F.3d 282 (4th Cir. 2019),
bolstered its conclusion by comparing these regulations to the
plain meaning afforded the word “any” in other statutes or
regulations. See, e.g., Ali v. Fed. Bureau of Prisons, 552 U.S.
214, 220 (2008) (concluding that “any…other law enforcement
officer” means “law enforcement officers of whatever kind”);
Massachusetts v. EPA, 549 U.S. 497, 529 (2007) (repetition of
“any” embraced all airborne compounds); Brogan v. United
States, 522 U.S. 398, 400 (1998) (“any” false statement
included a false statement “of whatever kind”); United States
v. Gonzales, 520 U.S. 1, 5 (1997) (concluding that the inclusion
of the word “any” and the lack of restrictive language left no
basis for limiting a provision in a sentencing statute); Harrison
v. PPG Indus., Inc., 446 U.S. 578, 589 (1980) (concluding
Congress intended “any” as “expansive language”); Citizens’
Bank of La. v. Parker, 192 U.S. 73, 81, (1904) (“The word any
excludes selection or distinction. It declares the exemption
without limitation.”); Int’l All. of Theatrical & Stage Emps. v.
NLRB, 334 F.3d 27, 34 (D.C. Cir. 2003) (noting that the use of
“any” signals that the word it modifies should receive broad
definition).
14
and necessary’ for IJs and the [Board] to administratively close
a case.” 937 F.3d at 293. Specifically, this clause requires that
any action taken must be appropriate and necessary for the
disposition of each case consistent with authorities under the
Act and regulations. Precedent shows that the phrase
“appropriate and necessary” is treated broadly. Id. (citing
Michigan v. EPA, 576 U.S. 743, 752 (2015) (“One does not
need to open up a dictionary in order to realize the
capaciousness of this phrase [‘appropriate and necessary’].”);
see also Sossamon v. Texas, 563 U.S. 277, 286 (2011) (noting
“the word ‘appropriate’ is inherently context dependent”);
Armour & Co. v. Wantock, 323 U.S. 126, 129-30 (1944)
(concluding the word “necessary … has always been
recognized as a word to be harmonized with its context”). We
similarly conclude that the use of the phrase “disposition of …
case” relates to the context-driven phrase “appropriate and
necessary.” Board decisions have illustrated the many contexts
in which administrative closure is “appropriate and
necessary.” 5 Thus, the limiting words “appropriate and
5
See Matter of Avetisyan, 25 I. & N. Dec. 688 (B.I.A.
2012) (administrative closure granted pending visa petition on
adjustment of status); Matter of Rajah, 25 I. & N. Dec. 127,
135 n.10 (B.I.A. 2009)(administrative closure granted pending
prima facie approvable of visa petition); Matter of Hashmi, 24
I. & N. Dec. 785, 791 n.4 (administrative closure granted
pending application for provisional waiver ); see also 8 C.F.R.
§ 212.7(e)(4)(iii) (DHS regulation requiring individuals in
removal proceedings to have the proceedings administratively
closed prior to applying for a provisional waiver). Nothing in
§ 1003.10 or § 1003.1(d)(1)(ii) suggests any limiting
parameters on what may be considered “appropriate and
necessary.”
15
necessary” instruct that any action taken by the IJ or the Board
must consider case-specific circumstances.
Finally, Romero noted, and we agree, that “the rest of
the text of the relevant regulations supports the conclusion that
IJs and the [Board] possess broad discretion in how to manage
their cases.” 937 F.3d at 294. As for IJs, § 1003.10(b)
concludes, “[i]n all cases, immigration judges shall seek to
resolve the questions before them in a timely and impartial
manner consistent with the Act and regulations.” As for the
Board, § 1003.1(d)(1) likewise provides that “[t]he Board shall
resolve the questions before it in a manner that is timely,
impartial, and consistent with the Act and regulations.” We
agree with Romero that “administrative closure may—contrary
to the Attorney General’s argument in Castro-Tum, 27 I. & N.
Dec. at 288–89—in fact facilitate the timely resolution of an
issue or case.” 937 F.3d at 294. Indeed, as the Seventh Circuit
stated in Meza Morales, “not all mechanisms that lengthen the
proceedings of a case prevent ‘timely’ resolution.” Meza
Morales, 973 F.3d at 665.
In an opinion by now-Justice Amy Coney Barrett, the
Seventh Circuit concluded in Meza Morales that “the
immigration regulations that grant immigration judges their
general powers [are] broad enough to implicitly encompass
that [administrative closure] authority.” Id. Meza Morales
cited the example given by the Fourth Circuit in Romero of
when “appropriate and necessary actions” could include
administrative closure: “cases in which two coordinate offices
in the executive branch are simultaneously adjudicating
collateral applications [and] closing one proceeding might help
advance a case toward resolution.” Id. (citing Romero, 937
F.3d at 293). And it rejected the Government’s arguments,
16
such as that other regulatory provisions would be rendered
superfluous or that delays caused by administrative closure are
forbidden by the regulations. The opinion concludes that the
regulatory preference for timeliness “is not a hard and fast
deadline; some cases are more complex and simply take longer
to resolve,” and therefore that preference “doesn’t justify
departure from the plain text of the rule.” Id. at 665. In the
end, “[e]xpeditiousness may be one … goal [of the
regulations], but it is not the only goal.” Id. at 666.
We are fully persuaded that, as discussed in Romero
and Meza Morales, the regulations afford IJs and the Board
authority to take any action (including administrative closure)
as is appropriate and necessary (in the context of each case)
for the disposition of such case to resolve questions in a timely
and impartial manner consistent with the Act and regulations.
After applying the standard tools of interpretation, by
considering the text, structure, history, and purpose of 8 C.F.R.
§§ 1003.10(b) and 1003.1(d)(1)(ii), we hold that the plain
language establishes that general administrative closure
authority is unambiguously authorized by these regulations.
Yet, the government argues that the very same
regulations unambiguously do not confer general authority for
administrative closure. 6 In Castro-Tum, the Attorney General
6
Our dissenting colleague similarly contends that the
regulations do not empower IJs or the BIA to administratively
close cases. The disagreement here, however, seems to be
directed at how broadly those regulations were interpreted and
applied prior to Castro-Tum, under the standard set out in
Avetisyan, rather than at the correctness of Castro-Tum
itself. (See Dissent at 10 (“But those phrases, broad or not, are
17
said as much and noted that, “[a]lthough described as a
temporary suspension” of removal proceedings,
“administrative closure is effectively permanent in most
instances.” 27 I. & N. Dec. at 272. He reasoned that the
regulations do not confer general administrative authority
because such action effectively amounts to an indefinite
suspension that delays or prevents the final disposition of a
case and thus conflicts with regulations requiring IJs to timely
resolve cases. 27 I. & N. at 285. The Sixth Circuit majority in
Hernandez-Serrano agreed with Castro-Tum and affirmed its
conclusion that the regulations do not confer general authority
for administrative closure.
not best understood to render section 1003.10(b) without
limitation and provide IJs nearly unfettered discretion. To the
contrary, ‘appropriate and necessary’ is itself an important
restriction on the scope of the Attorney General’s delegation,
and one that comes with some bite.”).) To that end, the dissent
criticizes our example of an immigration adjudication
prevented by the shuttling of a file back and forth between
USCIS and the Office of Chief Counsel, calling such evidence
“too light a breeze to propel a vast delegation of general
administrative closure authority.” (Dissent at 15.) But the
question before us is not whether the regulations endow IJs and
the BIA with a “vast delegation of general administrative
closure authority.” It is whether they entirely foreclose IJs or
the BIA from ever exercising some degree of discretion to
administratively close a case, as the Attorney General decided
in Castro-Tum. Thus, the dissent’s characterization of
“administrative closure” as “the antithesis of a final
disposition” does not convince us that Castro-Tum was
correctly decided. (Dissent at 7 (quoting Castro-Tum, 27 I. &
N. Dec. at 285).
18
Both Castro-Tum and Hernandez-Serrano emphasize a
concern that administrative closure leads to delay or no final
decision in removal cases. In fact, the opening sentence of the
Hernandez-Serrano majority opinion states: “[a] regulation
delegating to immigration judges authority to take certain
actions ‘[i]n deciding the individual cases before them’ does
not delegate to them general authority not to decide those cases
at all.” 981 F.3d at 461. That court also observed, “[t]hus the
reality is that, in hundreds of thousands of cases, administrative
closure has amounted to a decision not to apply the Nation's
immigration laws at all.” Id. at 463. Concern about
administrative closures causing widespread delay and non-
decision appears to have motivated both the Attorney
General’s and the Sixth Circuit’s decisions. If IJs are abusing
their discretion, that may very well be cause for concern, but it
does not relate to the question that Castro Tum purported to
answer—whether the regulations confer general authority for
administrative closure. The majority in Herandez-Serrano
even conceded that “the ‘timely manner’ language is
hortatory,” but concluded that “the IJ can resolve neither
questions nor a case once it is administratively closed.” Id.
To this same point, the dissent observed, and we agree:
whether immigration courts have granted
administrative closure too frequently, and have
failed to reopen administratively closed cases too
often, is of no significance to the question of
whether Castro-Tum wrongly held that IJs and
the BIA never have the discretion to decide that
administrative closure is “appropriate and
19
necessary for the disposition” of immigration
cases.
981 F.3d at 471. The authority to administratively close cases,
within the appropriate and necessary context of each case, can
and does permit IJs and the Board to answer the questions
before them in a timely and impartial manner consistent with
the Act and the regulations. Or in other words, delay in the
case through administrative closure does not, by definition,
prevent the timely disposition of the case and resolution of
questions.
As discussed above, certain removal cases require
resolution of questions that depend upon decisions from other
tribunals or agencies over which neither the IJ nor the Board
controls. The Attorney General’s Castro-Tum decision fails to
acknowledge the fact that allowing time for the IJ or the Board
to receive the outcome from another tribunal or agency enables
resolution of relevant questions and thus facilitates the timely
disposition of a removal case. Without the general authority to
administratively close appropriate cases when necessary, the
IJs and the Board may not have a sufficiently developed record
and may be less effective in managing cases. Such a result is
not contemplated by the Act or the regulations.
That some IJs and the Board may have used, or misused,
administrative closure to unduly delay or permanently close
and not decide cases does not answer the legal question of
whether IJs or the Board have the general authority to
administratively close cases under the regulations. Improper
use of administrative closure to attain objectives not authorized
by the regulations is appropriately challenged and redressed
through appropriate review, including judicial review under an
20
abuse-of-discretion standard. See Vahora, 626 F.3d at 917(review of administrative closure under an abuse of discretion
standard).
In addition, the INA grants the Attorney General
rulemaking authority to set standards for immigration judges
and the Board. 8 U.S.C. § 1103(g)(2). Indeed, 8 C.F.R.
§ 1003.10(b) empowers IJs to exercise independent judgment
and discretion in their decision making, “subject to the
applicable governing standards” and other regulatory
constraints. Id. As such, concern for undue delay or non-
decision in removal dispositions through the application of that
discretion, to the extent not already addressed through the
existing regulatory framework, can be redressed through
agency rulemaking and standards. “The Attorney General may
amend these rules through the proper procedures. But he may
not, ‘under the guise of interpreting a regulation, ... create de
facto a new regulation’ that contradicts the one in place.” Meza
Morales, 973 F.3d at 667 (citation omitted). And, even if a
regulation leads to bad policy, we “may not do the Attorney
General’s work for him.” 7 Hernandez-Serrano, 981 F.3d at
474 (Clay, J., dissenting).
7
The government submitted an argument in the
alternative that, if the regulations were found to be ambiguous
to the question of general administrative authority to
administratively close immigration cases, then principles of
agency deference should be afforded to apply the agency
interpretation as presented in the Castro-Tum decision.
However, this appeal is resolved by our finding that the
regulations unambiguously grant general authority for IJs and
the Board to administratively close immigration cases. No
issue of any deference remains for discussion or decision.
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V. Conclusion
For the reasons stated above, we conclude that the
relevant regulations confer the general authority to
administratively close cases to IJs and the Board. We therefore
grant the petition for review, vacate the Board’s order, and
remand for proceedings consistent with this opinion.
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