Juan Hernandez-Castillo v. Jefferson Sessions, III , 875 F.3d 199 ( 2017 )

Case: 15-60847 Document: 00514230560 Page: 1 Date Filed: 11/08/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-60847 FILED
November 8, 2017
JUAN ANTONIO HERNANDEZ-CASTILLO,
Lyle W. Cayce
Clerk
Petitioner,
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals
Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
Petitioner Juan Antonio Hernandez-Castillo, a native and citizen of El
Salvador, petitions for review of the Board of Immigration Appeals’ (BIA) order
upholding the denial of his motion to reopen removal proceedings and declining
to reopen proceedings sua sponte or to grant administrative closure. Because
the BIA did not abuse its discretion in dismissing the petition and declining to
administratively close the case and because we lack jurisdiction to review the
BIA’s refusal to reopen proceedings sua sponte, we DENY in part and DISMISS
in part Hernandez-Castillo’s petition for review.
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I.
Petitioner Juan Antonio Hernandez-Castillo, a native and citizen of El
Salvador, was apprehended by Border Patrol agents on March 15, 2005, after
attempting to enter the United States from Mexico without authorization near
Eagle Pass, Texas. The following day, Hernandez-Castillo was personally
served with a notice to appear. The notice to appear charged Hernandez-
Castillo with removability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) because he
had not been admitted or paroled by the appropriate authorities. The notice
to appear informed Hernandez-Castillo that he was required to provide the
agency with his full mailing address and telephone number in writing. The
notice to appear went on to advise him that he must immediately notify the
immigration court, using Form EOIR-33, whenever he changed his address or
telephone number during the course of the proceedings, and that he would
receive any hearing notices at the address provided. The notice to appear also
stated that if he did not submit an EOIR-33 form or otherwise failed to provide
an address at which he could be reached, the government would not be required
to provide him with written notice of his hearing. Moreover, the notice to
appear advised Hernandez-Castillo that failure to attend a designated hearing
could result in the immigration judge entering an in absentia removal order.
Hernandez-Castillo signed the notice to appear, acknowledging that he
had been provided oral notice in Spanish of the time and place of his hearing
and the consequences of failing to appear. The Border Patrol released
Hernandez-Castillo on his own recognizance due to a lack of detention funds.
Hernandez-Castillo informed the Border Patrol agents that he was trying to
travel to Los Angeles, California to live with his sister. He provided a phone
number, but several attempts to establish contact at this number were
unsuccessful. Hernandez-Castillo did not provide a valid United States
address.
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On April 26, 2005, the Department of Homeland Security (DHS) filed the
notice to appear in immigration court. On May 4, 2005, a hearing was held at
which Hernandez-Castillo failed to appear. The immigration judge sustained
the charge of removability and ordered Hernandez-Castillo removed to El
Salvador in absentia. More than nine years later, Hernandez-Castillo, through
counsel, filed a motion to reopen his removal proceedings and rescind the in
absentia removal order. Hernandez-Castillo conceded that he was personally
served with a notice to appear that explained his obligation to provide a current
telephone number and mailing address and warned him of the consequences
of failing to appear at his hearing.
Nevertheless, Hernandez-Castillo contended that he should be excused
from his failure to appear because: (1) he did not receive notice of his hearing
date; (2) DHS did not detain him to ensure his appearance but instead released
him from physical custody despite the fact that he had not provided the agency
with a valid address; and (3) the notice to appear was not filed until forty-one
days after the date of issue, which made it “unreasonable” to expect that he
could provide a valid address prior to the hearing date of May 4, 2005. For the
first time, Hernandez-Castillo also alleged that he was requesting to reopen
his case so that he could seek asylum because he feared he would be murdered
or tortured by gang members if he returned to El Salvador.
The immigration judge denied the motion to reopen removal proceedings,
concluding that written notice of the hearing was not required because there
was no record that Hernandez-Castillo ever provided the immigration court
with an address until he filed his motion to reopen. The immigration judge
also found that Hernandez-Castillo had received an admonition in Spanish of
the consequences of failing to appear. Moreover, the immigration judge
rejected the argument that reopening was required because Hernandez-
Castillo was released from custody before the notice to appear was filed with
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the immigration court. The immigration judge noted that even in the absence
of a charging document, any address provided to the court would have been
“placed in a suspense file in the database to be available when a charging
document is filed; not returned, rejected or destroyed.” The immigration judge
concluded that there were no exceptional circumstances warranting a sua
sponte reopening of the case because, among other things, Hernandez-Castillo
failed to provide an address to the court and made no attempt to contact the
court after release from custody.
Hernandez-Castillo appealed the immigration judge’s decision to the
BIA. He argued that the immigration judge had erred in determining that he
had failed to meet his burden to provide a valid address and in rejecting his
lack-of-notice claim against the government. He further argued that
regardless of the BIA’s decision as to his other arguments, the BIA should sua
sponte reopen his proceedings and grant administrative closure of his case
based on “humanitarian factors” and his eligibility for withholding of removal
and relief under the Convention Against Torture.
The BIA affirmed the immigration judge’s decision “for the reasons cited
therein,” stating that Hernandez-Castillo had failed to fulfill his obligation to
provide the immigration court with a valid address and that, consequently, the
court was not required to provide notice of the hearing. The BIA agreed with
the immigration judge that Hernandez-Castillo’s release from custody before
he had provided a valid address had “no bearing on his noncompliance with his
obligation to provide the [c]ourt with his address.” In addition, the BIA found
that it was immaterial that the notice to appear was not filed with the court
until approximately forty days after Hernandez-Castillo was served, because
if he had attempted to provide an address, the court would have placed the
address in a suspense file to be available when the charging document was
filed. Considering the “totality of the circumstances,” which included
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Hernandez-Castillo’s humanitarian considerations, the BIA upheld the
immigration judge’s decision. The BIA found that Hernandez-Castillo had not
presented any factors “either individually or in the aggregate,” that were “so
exceptional as to trigger the limited authority to reopen proceedings sua
sponte.” The BIA then denied the request for administrative closure on the
grounds that the request did not “meet the standards in Matter of Avetisyan,
25 I&N Dec. 688 (BIA 2012)” because Hernandez-Castillo had “not established
prima facie eligibility for any form of relief.” Thus, the BIA dismissed the
appeal. Hernandez-Castillo timely filed a petition for review.
II.
We apply a highly deferential abuse-of-discretion standard in reviewing
the denial of a motion to reopen removal proceedings. Gomez-Palacios v.
Holder, 560 F.3d 354, 358 (5th Cir. 2009). As long as the BIA’s decision is “not
capricious, without foundation in the evidence, or otherwise so irrational that
it is arbitrary rather than the result of any perceptible rational approach,” we
must affirm it. Id. (citing Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006)).
We review the BIA’s factual findings under the substantial-evidence test,
which prevents us from reversing the BIA’s factual determinations unless the
evidence compels reversal. Id. In reviewing the denial of a motion to reopen
removal proceedings, we review the BIA’s order and will evaluate the
immigration judge’s underlying decision only if it influenced the BIA’s opinion.
Id.
III.
A.
We begin with the relevant statutory requirements. Under 8 U.S.C.
§ 1229a(b)(5)(A), an alien who fails to attend a hearing after written notice has
been provided to the alien or the alien’s counsel of record shall be ordered
removed in absentia if the government establishes by “clear, unequivocal, and
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convincing evidence” that the written notice was so provided and that the alien
is removable. 8 U.S.C. § 1229a(b)(5)(A). The government satisfies the notice
requirement for obtaining a removal order when it gives proper notice at the
most recent mailing address the alien provided. Id. However, no written
notice is required if the alien failed to provide a current mailing address. 8
U.S.C. § 1229a(b)(5)(B). Pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii), an in
absentia removal order may be rescinded “upon a motion to reopen filed at any
time if the alien demonstrates that the alien did not receive notice in
accordance with paragraph (1) or (2) of section 1229(a) of this title.” 8 U.S.C.
§§ 1229a(b)(5)(C)(ii).
Paragraph (1) of § 1229(a) requires that notice of a removal hearing be
given in person or by mail if personal service is not practicable. 8 U.S.C.
§ 1229(a)(1). The notice must specify the nature of the proceedings against the
alien; the legal authority under which the proceedings are conducted; the acts
or conduct alleged to be in violation of law; the charges against the alien and
the statutory provisions alleged to have been violated; and the alien’s right to
counsel. 8 U.S.C. § 1229(a)(1)(A)–(E). The notice also must specify the alien’s
obligation immediately to provide the government with a written record of an
address and telephone number (if any) at which he may be contacted regarding
the proceedings; the alien’s obligation immediately to apprise the government
of any change in his address or telephone number; and the “consequences
under section 1229a(b)(5) of this title of failure to provide address and
telephone information.” 8 U.S.C. § 1229(a)(1)(F)(i)–(iii). Finally, the notice
must specify the time and place at which the proceedings will be held and the
“consequences under section 1229a(b)(5) of this title of the failure, except under
exceptional circumstances, to appear at such proceedings.” 8 U.S.C.
§ 1229(a)(1)(G)(i)–(ii).
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Paragraph (2) of § 1229(a) states that in the case of any change in the
time and place of removal proceedings following the original provision or
notice, written notice must be given in person, or by mail if personal service is
not practicable, specifying the new time or place of the proceedings and the
consequences of failing to attend. 8 U.S.C. § 1229(a)(2)(A). However,
paragraph (2) provides an exception: “In the case of an alien not in detention,
a written notice shall not be required under this paragraph if the alien has
failed to provide the address required . . . .” 8 U.S.C. § 1229(a)(2)(B).
In Gomez-Palacios v. Holder, we held that “an in absentia removal order
should not be revoked on the grounds that an alien failed to actually receive
the required statutory notice of his removal hearing when the alien’s failure to
receive actual notice was due to his neglect of his obligation to keep the
immigration court apprised of his current mailing address.” 560 F.3d at 360–
61 (citations omitted) (upholding the BIA’s determination that the petitioner
“was not entitled to rescission of his removal order because his failure to
receive actual notice of the time of his postponed hearing was the result of not
complying with his obligation to keep the immigration court apprised of his
current mailing address,” and concluding that “[s]uch a failure is grounds for
denying rescission of a removal order under § 1229a(b)(5)(C)(ii)”).
Here, Hernandez-Castillo concedes that he was personally served with a
notice to appear that explained his obligation to provide a valid telephone
number and mailing address and warned him of the consequences of failing to
appear at his hearing. However, he argues that he was not required to provide
the government with a viable address because, under the relevant regulations,
he did not have to provide his address until the charging document was filed.
Because the charging document was filed eight days before the hearing,
Hernandez-Castillo argues it was unlikely that notifying the government of his
change of address would have resulted in a timely notice of the hearing.
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Moreover, he contends that even if he had attempted to submit a change of
address to the immigration court before the notice to appear was filed, such a
submission likely would have been rejected.
In light of the statutory requirements, these arguments are unavailing.
There is no deep philosophical chicken-or-egg quandary here as to whether the
duty to provide the address comes before the duty to notice or vice versa.
Indeed, the controlling statutory requirements, of which Hernandez-Castillo
had personal notice, obligated him to keep the immigration court apprised of
his current contact information. 1 8 U.S.C. § 1229(a)(1)(F). Hernandez-Castillo
failed to provide DHS with a viable mailing address at any time. When an
alien fails to provide a viable mailing address to DHS, the government need
not provide notice of the alien’s hearing. 8 U.S.C. § 1229(a)(2)(B). Therefore,
Hernandez-Castillo cannot complain of a lack of notice under the relevant
statutes.
Nor does the lack of notice here violate due process, as Hernandez-
Castillo suggests. Even assuming arguendo that Hernandez-Castillo did not
have a duty to provide his address and could establish that he was eligible for
relief, he could not establish a due-process violation because “there is no liberty
interest at stake in a motion to reopen due to the discretionary nature of the
relief sought.” Gomez-Palacios, 560 F.3d at 361 n.2 (citing Altamirano-Lopez
1 Hernandez-Castillo seeks to rely on 8 C.F.R. § 1003.15(d)(1), which provides that if
an alien’s address is not provided on the notice to appear, “the alien must provide to the
Immigration Court where the charging document has been filed, within five days of service
of that document, a written notice of an address and telephone number at which the alien
can be contacted. The alien may satisfy this requirement by completing and filing Form
EOIR–33.” 8 C.F.R. § 1003.15(d)(1). Contrary to Hernandez-Castillo’s contention, this
regulation does not allow an alien to avoid providing a current address until the charging
document has been filed. Rather, pursuant to 8 U.S.C. § 1229(a)(1), Hernandez-Castillo’s
notice to appear required him to provide the government with an address and telephone
number at which he could be contacted and to notify the government immediately of any
change in address or phone number during the course of removal proceedings.
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v. Gonzales, 435 F.3d 547, 550 (5th Cir. 2006) (stating that “the denial of
discretionary relief does not rise to the level of a constitutional violation even
if [the moving party] had been eligible for it”); Assaad v. Ashcroft, 378 F.3d
471, 475 (5th Cir. 2004) (holding that the petitioner’s motion to reopen his
immigration proceedings “does not allege a violation of his Fifth Amendment
right to due process” because failing to receive purely discretionary relief “does
not amount to a deprivation of a liberty interest”)).
As we stated in Gomez-Palacios, “an alien’s failure to receive actual
notice of a removal hearing due to his neglect of his obligation to keep the
immigration court apprised of his current mailing address does not mean that
the alien ‘did not receive notice’ under § 1229a(b)(5)(C)(ii).” 560 F.3d at 360
(citing Jiang v. Gonzales, 239 F. App’x 62, 64 (5th Cir. 2007) (unpublished) 2
(holding that because the petitioner “was informed of his duty to provide the
immigration court with his address and failed to do so, he was not entitled to
notice of the removal hearing”); Rybakov v. Gonzales, 235 F. App’x 250, 251
(5th Cir. 2007) (unpublished) (same)). Thus, we hold that the BIA did not
abuse its discretion in upholding the denial of Hernandez-Castillo’s motion to
reopen removal proceedings.
B.
Hernandez-Castillo next argues that the BIA erred in declining to reopen
removal proceedings sua sponte. In addition to filing a statutory motion to
reopen, an alien can also file a regulatory motion to reopen, invoking the BIA’s
or immigration judge’s discretionary authority to reopen removal proceedings
sua sponte. Gonzalez-Cantu v. Sessions, 866 F.3d 302, 304 (5th Cir. 2017),
petition for cert. filed, No. 17-653 (Oct. 26, 2017); Tarango v. Sessions, 697 F.
2 Pursuant to Fifth Circuit Rule 47.5.4, unpublished opinions issued on or after
January 1, 1996 generally are not precedent, although they may be cited as persuasive
authority pursuant to Fed. R. App. P. 32.1(a).
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App’x 318, 321 (5th Cir. 2017) (unpublished). The Code of Federal Regulations
provides that an immigration judge “may upon his or her own motion at any
time . . . reopen or reconsider any case in which he or she has made a decision,
unless jurisdiction is vested with the Board of Immigration Appeals.” 8 C.F.R.
§ 1003.23(b). The regulations also provide that the BIA “may at any time
reopen or reconsider on its own motion any case in which it has rendered a
decision.” 8 C.F.R. § 1003.2(a). An immigration judge’s regulatory authority
is governed by § 1003.23(b), while the BIA’s regulatory authority is governed
by § 1003.2(a). Gonzalez-Cantu, 866 F.3d at 304.
Under our existing precedent, however, we lack jurisdiction to review the
BIA’s decision to decline sua sponte reopening. See Enriquez-Alvarado v.
Ashcroft, 371 F.3d 246, 249–50 (2004) (stating that “[t]he Code of Federal
Regulations suggests that no meaningful standard exists against which to
judge an [immigration judge’s] decision to exercise sua sponte authority to
reopen deportation proceedings” and thus holding that we lack jurisdiction to
review such a decision); see also Barillas-Rivera v. Lynch, 668 F. App’x 81, 82
(5th Cir. 2016) (unpublished) (holding that we lack jurisdiction to review the
BIA’s refusal to reopen removal proceedings sua sponte and noting that “[t]he
Supreme Court’s recent decision in [Mata v. Lynch] 3 did not disturb our court’s
precedent on this point. 135 S. Ct. at 2155”).
Our precedent here accords with the holdings of at least eight other
courts of appeals. Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006); Calle-
Vujiles v. Ashcroft, 320 F.3d 472, 474–75 (3d Cir. 2003); Mosere v. Mukasey,
552 F.3d 397, 400–01 (4th Cir. 2009); Anaya-Aguilar v. Holder, 683 F.3d 369,
371–73 (7th Cir. 2012); Tamenut v. Mukasey, 521 F.3d 1000, 1004 (8th Cir.
3 The Supreme Court in Mata v. Lynch assumed arguendo that federal courts of
appeals lack jurisdiction to review the BIA’s decisions regarding whether to reopen removal
proceedings sua sponte. 135 S. Ct. 2150, 2155 (2015).
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2008) (en banc); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002); Belay-
Gebru v. INS, 327 F.3d 998, 1000–01 (10th Cir. 2003); Lenis v. U.S. Att’y Gen.,
525 F.3d 1291, 1294 (11th Cir. 2008). Therefore, we lack jurisdiction to review
the BIA’s refusal to reopen sua sponte Hernandez-Castillo’s removal
proceedings.
C.
Hernandez-Castillo also argues that the BIA erred as a matter of law in
denying his motion to administratively close proceedings. An immigration
judge may use administrative closure to remove a case temporarily from his or
her active calendar; the BIA may use it to remove a case temporarily from its
docket. Avetisyan, 25 I.&N. Dec. 688, 692 (BIA 2012). As the BIA has stated,
“[i]n general, administrative closure may be appropriate to 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.” Id. (footnote omitted).
In the context of denials of administrative closure, we have assumed
without explicitly deciding our jurisdiction and have denied relief. See, e.g.,
Momin v. Holder, 516 F. App’x 366, 367 (5th Cir. 2013) (unpublished) (stating
that the petitioners had not made a showing on one of the factors relevant to
the administrative-closure determination and therefore holding that the BIA
did not abuse its discretion in rejecting their request for administrative
closure); Cantu-Delgadillo v. Holder, 584 F.3d 682, 686 (5th Cir. 2009) (holding
that the BIA properly denied the petitioner’s request for administrative
closure).
Today we join several of our sister circuits in holding that federal courts
of appeals have jurisdiction to review denials of administrative closure. See
Gonzalez-Vega v. Lynch, 839 F.3d 738, 741 (8th Cir. 2016) (expressly joining
other circuits in holding that federal courts of appeals have jurisdiction to
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review denials of motions for administrative closure); Santos-Amaya v. Holder,
544 F. App’x 209, 209 (4th Cir. 2013) (unpublished) 4 (reviewing a denial of
administrative closure for abuse of discretion); Vahora v. Holder, 626 F.3d 907,
918–19 (7th Cir. 2010) (stating that “the decision to grant or deny
administrative closure is cut of the same cloth as various other decisions that
we review with regularity in both administrative and non-administrative
arenas” and therefore holding that the court had jurisdiction to review such
decisions); Garza-Moreno v. Gonzales, 489 F.3d 239, 242 (6th Cir. 2007)
(holding that the court had jurisdiction to review the denial of administrative
closure). But see Diaz-Covarrubias v. Mukasey, 551 F.3d 1114, 1120 (9th Cir.
2009) (holding that the court lacked jurisdiction to review denials of
administrative closure because there was no “sufficiently meaningful
standard” against which to judge the BIA’s decision); Lin v. Att’y Gen. of U.S.,
127 F. App’x 36, 39 (3d Cir. 2005) (unpublished) 5 (holding that the court lacked
jurisdiction to review a denial of administrative closure because “[l]ike
decisions to sua sponte reopen a case, decisions to administratively close cases
are decisions that are purely committed to the BIA’s or [immigration judge’s]
discretion”).
We believe that the Eighth Circuit’s reasoning is particularly cogent
here. In Gonzalez-Vega v. Lynch, the Eighth Circuit discussed its jurisdictional
determination in Hernandez v. Holder, 606 F.3d 900 (8th Cir. 2010), in light of
the BIA’s decision in Avetisyan. 839 F.3d at 741. The Eighth Circuit stated
that “the BIA in Avetisyan supplied a useable standard for reviewing denials
of motions for administrative closure. Balancing considerations is a common,
4 The Fourth Circuit permits citations to its unpublished opinions issued on or after
January 1, 2007. 4th Cir. R. 32.1(a).
5 The Third Circuit does not prohibit citations to its unpublished opinions but “by
tradition does not cite to its not precedential opinions as authority.” 3d Cir. I.O.P. 5.7.
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workaday judicial function, even if in a given case the balancing can be
difficult.” Id. Based on the evaluative factors provided in Avetisyan, the
Eighth Circuit expressly joined other circuits in holding that federal courts of
appeals have jurisdiction to review denials of motions for administrative
closure. 6 Id.
This analysis is persuasive. Unlike a refusal to sua sponte reopen
proceedings, the denial of a motion for administrative closure does not lack
meaningful standards against which to judge the determination. Regarding
decisions to reopen proceedings sua sponte, the regulations provide that the
BIA “may at any time reopen or reconsider on its own motion any case in which
it has rendered a decision.” 8 C.F.R. § 1003.2(a). Thus, “[t]he regulations vest
the decision of whether to sua sponte reopen entirely in the discretion of the
immigration judge or the BIA.” Tarango, 697 F. App’x at 321. By contrast, the
BIA has provided standards for evaluating when administrative closure may
be appropriate. Avetisyan, 25 I.&N. Dec. at 696 (providing six factors and
describing how they might appropriately be applied). 7
6 Moreover, the Immigration Trial Handbook cites the Eighth Circuit’s decision in
Gonzalez-Vega v. Lynch as supporting an alien’s ability to appeal a denial of administrative
closure. Immigr. Trial Handbook § 5:25 n.17 (Westlaw 2017).
7 The government argues here that, as with a refusal to sua sponte reopen proceedings,
we lack jurisdiction to review denials of administrative closure because there are no
“meaningful standards of review” for such decisions. The Ninth Circuit has held as much in
Diaz-Covarrubias v. Mukasey, 551 F.3d 1114, 1117–18, 1120 (9th Cir. 2009). However, the
Ninth Circuit decided Diaz-Covarrubias before the BIA announced standards for evaluating
requests for administrative closure in Avetisyan, 25 I.&N. Dec. 688, 696 (BIA 2012). Cf.
Gonzalez-Vega v. Lynch, 839 F.3d 738, 741 (8th Cir. 2016) (revisiting its decision in
Hernandez v. Holder, 606 F.3d 900 (8th Cir. 2010), in light of Avetisyan and joining other
circuits in holding that federal courts of appeals have jurisdiction to review denials of motions
for administrative closure). The Ninth Circuit in Diaz-Covarrubias analogized a lack of
jurisdiction over denials of administrative closure to a lack of jurisdiction over refusals by the
BIA to reopen proceedings sua sponte. 551 F.3d at 1117–18. However, in light of the factors
the BIA provided in Avetisyan, this analogy is no longer persuasive.
Moreover, the government cites to the Eighth Circuit’s decision in Hernandez v.
Holder as supporting its argument that we lack jurisdiction to review denials of
administrative closure. This is incorrect, as the Eighth Circuit’s decision in Gonzalez-Vega
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We have previously applied an abuse-of-discretion standard when
reviewing a denial of administrative closure. See Momin, 516 F. App’x at 367.
We think this appropriate, and we do so today. Cf. Gonzalez-Vega, 839 F.3d at
741 (reviewing the denial of a motion for administrative closure for abuse of
discretion); Santos-Amaya, 544 F. App’x at 209 (same); Vahora, 626 F.3d at
919 (same); Garza-Moreno, 489 F.3d at 242–43 (same).
The BIA has held that it is appropriate for an immigration judge or the
BIA to “weigh all relevant factors presented in the case.” Avetisyan, 25 I.&N.
Dec. at 696. These factors include but are not limited to the following:
(1) the reason administrative closure is sought; (2) the basis for any
opposition to administrative closure; (3) the likelihood the respondent
will succeed on any petition, application, or other action he or she is
pursuing outside of removal proceedings; (4) the anticipated duration of
the closure; (5) the responsibility of either party, if any, in contributing
to any current or anticipated delay; and (6) the ultimate outcome of
removal proceedings (for example, termination of the proceedings or
entry of a removal order) when the case is recalendared before the
Immigration Judge or the appeal is reinstated before the Board.
Id. By contrast, it would not be appropriate to administratively close
proceedings “if the request is based on a purely speculative event or action.”
Id.
As discussed above, the BIA held that Hernandez-Castillo’s request for
administrative closure “[did] not meet the standards in Matter of Avetisyan, 25
I&N Dec. 688 (BIA 2012)[] because he ha[d] not established prima facie
eligibility for any form of relief.” Hernandez-Castillo argues that the BIA erred
by not taking all the factors into account. This argument, however, gives too
little weight to the BIA’s discretionary authority here. The BIA need not
evaluate every factor in detail. Rather, the BIA has discretion to “weigh all
revisited Hernandez and held that the court has jurisdiction to review denials of
administrative closure. Gonzalez-Vega, 839 F.3d at 741.
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relevant factors presented in the case.” Avetisyan, 25 I.&N. Dec. at 696
(emphasis added).
For example, in Momin, we upheld the BIA’s denial of a motion to
reconsider and refusal to administratively close proceedings. 516 F. App’x at
367. We noted in Momin that “[t]he factors to consider when determining
whether to administratively close removal proceedings include whether it is
likely that the respondent will succeed on any petition, application, or other
action he or she is pursuing outside of removal proceedings.” Id. (citing
Avetisyan, 25 I.&N. Dec. 688). Finding that the Momins had not shown a
likelihood of success on any claims for relief pursued outside of removal
proceedings, we denied their petitions for review. Id.
Similarly to Momin, the BIA here found that Hernandez-Castillo had not
established prima facie eligibility for any form of relief, an analysis which falls
under the third factor in Avetisyan—the same factor we considered in Momin.
516 F. App’x at 367. As in Momin, we hold that the BIA acted within its
discretionary authority here.
IV.
Accordingly, we DISMISS the petition for review with respect to the
claim that the BIA erred in refusing to reopen removal proceedings sua sponte.
We DENY the petition for review with respect to the claims that the BIA
abused its discretion in upholding the denial of the motion to reopen removal
proceedings and in declining to administratively close the case.
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