Jose Faudoa-Gonzalez v. William Barr, U. S. Atty G ( 2020 )

Case: 19-60131 Document: 00515636193 Page: 1 Date Filed: 11/12/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 12, 2020
No. 19-60131
Lyle W. Cayce
Clerk
Jose Faudoa-Gonzalez,
Petitioner,
versus
William P. Barr, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A097 683 522
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
An immigration judge (IJ) ordered Jose Faudoa-Gonzalez, a native
and citizen of Mexico, removed after denying his requests for continuance,
administrative closure, and termination. Faudoa appealed to the Board of
Immigration Appeals (BIA), asserting the IJ erred by denying him a
continuance, or alternatively, administrative closure. The BIA dismissed
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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Faudoa’s appeal, concluding that Matter of Castro-Tum, 27 I&N Dec. 271(Att’y Gen. 2018), foreclosed his request for administrative closure and
Matter of L-A-B-R-, 27 I&N Dec. 405 (Att’y Gen. 2018), precluded him from
establishing good cause for continuance. Faudoa now petitions this court for
review of the BIA’s dismissal. Because the BIA abused its discretion in
retroactively applying Castro-Tum, but not in applying L-A-B-R-, we grant in
part and deny in part Faudoa’s petition for review.
I.
Faudoa arrived in the United States in December 2010 without
inspection. In April 2016, the Department of Homeland Security (DHS)
charged Faudoa with being removable under § 212(a)(6)(A)(i) of the
Immigration and Nationality Act (INA). See 8 U.S.C. § 1182(a)(6)(A)(i). At
his first hearing, Faudoa admitted the allegations set forth by DHS and
conceded his removability. Although Faudoa did not apply for relief, Laura
Robles, Faudoa’s wife and a United States citizen, filed an I-130 “Petition for
Alien Relative” on Faudoa’s behalf.1
Over the next 18 months, the immigration court continued Faudoa’s
removal proceedings six times. Of the six continuances, the court granted
three at Faudoa’s request, pending the adjudication of Robles’s I-130
application. Robles’s I-130 petition was approved on July 21, 2017.
Nonetheless, on November 2, 2017, Faudoa moved for a fourth continuance.
In his fourth motion, Faudoa requested a continuance until August
2018. According to Faudoa, this continuance would allow the National Visa
Center (NVC) time to process the approved I-130 petition and would give
United States Citizenship and Immigration Services (USCIS) time to
1
According to Laura Robles’s petition, Robles and Faudoa married on September
25, 2012.
2
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adjudicate his subsequent I-601A provisional unlawful presence waiver. In
the alternative, Faudoa requested that the court administratively close or
terminate his case.2 While DHS did not oppose the continuance of Faudoa’s
removal proceedings, the agency opposed administrative closure or
termination of Faudoa’s removal action.
On November 7, 2017, the IJ denied Faudoa’s fourth continuance
motion, concluding (1) good cause for continuance did not exist, (2) there
was no legitimate reason for administrative closure, and (3) Faudoa failed to
articulate any legal basis for terminating his case. In denying Faudoa’s
request for administrative closure, the IJ weighed the factors applicable to
Faudoa’s case as set forth in Matter of Avetisyan, 25 I&N Dec. 688, 696 (BIA
2012). The IJ then explained that because the court could not provide
Faudoa with any further relief, Faudoa would have to voluntarily depart the
United States or be removed. Faudoa refused voluntary departure, so the IJ
ordered his removal. On December 28, 2017, Faudoa appealed the IJ’s
decision to the BIA.
Before the BIA, Faudoa asserted that the IJ erred by denying him a
continuance, or, alternatively, administrative closure. Faudoa argued that
the BIA should not retroactively apply the Attorney General’s (AG)
intervening decisions, Matter of Castro-Tum, 27 I&N Dec. 271 (AG 2018),
and Matter of L-A-B-R-, 27 I&N Dec. 405 (AG 2018), to bar his request for
2
“Administrative closure is a procedural device that temporarily takes a removal
case off of an [IJ]’s calendar, preventing it from moving forward.” Morales v. Barr, 973
F.3d 656, 664 (7th Cir. 2020) (citation omitted). Termination, on the other hand, ends a
case. Generally, “[i]mmigration regulations give enforcement officials, not [IJs] or the
BIA, discretionary authority to terminate removal proceedings or move for
the termination of removal proceedings.” Panova-Bohannan v. Ashcroft, 74 F. App’x 424,
425 (5th Cir. 2003) (per curiam).
3
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continuance or administrative closure.3 The BIA disagreed and dismissed
Faudoa’s appeal.
In its January 31, 2019 dismissal decision, the BIA affirmed the IJ’s
denial of administrative closure, concluding Castro-Tum foreclosed Faudoa’s
request. The BIA also affirmed the IJ’s denial of continuance for lack of good
cause, citing L-A-B-R-, 27 I&N Dec. 405, 415–417. The BIA explained that
[t]he respondent, who is married to a United States citizen,
sought a continuance so that he can begin the process of
applying for the necessary waivers of inadmissibility required
for him to obtain an immigrant visa . . . . However, the
respondent is ineligible to adjust his status in this country
under section 245(a) of the Immigration and Nationality Act, 8
U.S.C. § 1255(a), because he is present without having been
admitted or inspected and consequently he must leave the
United States in order to obtain an immigrant visa. We
therefore affirm the [IJ]’s denial of the respondent’s request
for a continuance because the respondent is ineligible for any
relief from removal in these proceedings. See Matter of L-A-B-
R-, 27 I&N Dec.405,415–417 (A.G. 2018) (stating that good
cause for a continuance does not exist where the potential
collateral relief sought will not materially affect the outcome of
removal proceedings).
The BIA rejected Faudoa’s contention that he would have applied for
cancellation of removal if he had known that Castro-Tum and L-A-B-R- would
apply to his claims because Faudoa could not show that he was physically
3
The AG issued Castro-Tum on May 17, 2018 and L-A-B-R- on August 16, 2018.
In Castro-Tum, the AG held “that [IJs] and the [BIA] do not have the general authority to
suspend indefinitely immigration proceedings by administrative closure.” 27 I&N Dec. at
272. In L-A-B-R-, the AG held “that an [IJ] should assess whether good cause supports
such a continuance by applying a multifactor analysis, which requires that the [IJ]’s
principal focus be on the likelihood that the collateral relief will be granted and will
materially affect the outcome of the removal proceedings.” 27 I&N Dec. at 406.
4
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present in the United States for ten continuous years.4 And the BIA rejected
Faudoa’s contention that he should be granted relief because removal would
result in financial hardship to himself and his family. Finally, the BIA
determined that Faudoa waived any argument that the IJ erred in denying his
request for termination because he did not identify any such error on appeal.
Faudoa now petitions this Court for review, asserting the BIA erred by
retroactively applying Castro-Tum and L-A-B-R-.5
II.
On appeal, we examine only the BIA’s decision “unless the IJ’s
decision has some impact on the BIA’s decision.” Wang v. Holder, 569 F.3d
531, 536 (5th Cir. 2009) (citation omitted). Although the BIA agreed with
the IJ’s determination here, it did not base its decision on the IJ’s opinion.
We thus confine our review to the BIA’s analysis.
We review the BIA’s “factual findings for substantial evidence and
conclusions of law de novo.” Avelar-Oliva v. Barr, 954 F.3d 757, 763 (5th
Cir. 2020). The BIA’s affirmance of the IJ’s denial of a continuance and
administrative closure is examined for abuse of discretion. Hernandez-
Castillo v. Sessions, 875 F.3d 199, 208–09 (5th Cir. 2017) (administrative
closure); Masih v. Mukasey, 536 F.3d 370, 373 (5th Cir. 2008) (continuance).
4
“[C]ancellation of removal is a form of discretionary relief from removal” set
forth in 8 U.S.C. § 1229. Perez-Macedo v. Holder, 405 F. App’x 828, 829 (5th Cir. 2010)
(per curiam). To be eligible for this relief, which would adjust Faudoa’s status to “an alien
lawfully admitted for permanent residence,” Faudoa would have to meet the requirements
set forth in § 1229(b)(1). One of these requirements is “physical[] presen[ce] in the United
States for a continuous period of not less than 10 years.” See 8 U.S.C. § 1229(b)(1).
5
Faudoa’s alternative request for termination is not at issue on appeal.
5
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III.
To begin, we address standing. The government contends that
Faudoa lacks standing to challenge the BIA’s retroactive application of
Castro-Tum because he never received the benefit of administrative closure.
We disagree.
Article III limits the power of federal courts to ongoing cases and
controversies. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing
U.S. Const. art. III, § 2); Alwan v. Ashcroft, 388 F.3d 507, 511 (5th Cir.
2004). “Standing to sue is a doctrine rooted in the traditional understanding
of a case or controversy.” Spokeo, Inc., 136 S. Ct. at 1547. Under this
requirement, “throughout the litigation, the plaintiff must have suffered, or
be threatened with, an actual injury traceable to the defendant and likely to
be redressed by a favorable judicial decision.” Spencer v. Kemna, 523 U.S. 1,
7 (1998) (internal quotation marks and citation omitted).
In contending that Faudoa lacks standing to challenge the BIA’s
retroactive application of Castro-Tum, the government cites Ryan v.
Brookdale, Int’l Sys., 230 F. App’x 366, 367–68 (5th Cir. 2007) (per curiam).
Ryan is a products-liability case involving smoke hoods. Id. at 367. There,
we concluded the plaintiff lacked standing because he had never used the
subject smoke hoods, much less suffered an injury from them. Id. at 367–68.
But Ryan is not comparable to the matter at hand.
Here, the IJ’s denial of administrative closure is the root of Faudoa’s
petition for review. Indeed, Faudoa initially appealed to the BIA, asserting
that the IJ erred in ordering him removed rather than granting him a
continuance or administrative closure. The BIA affirmed the IJ’s denial of
administrative closure but did so by retroactively applying Castro-Tum, not
by adopting the IJ’s analysis. Faudoa now asks this court to reverse the BIA’s
retroactive application of Castro-Tum and remand so that the BIA may
6
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address his appeal under Avetisyan, the precedent applied by the IJ that
controlled prior to Castro-Tum. See 8 U.S.C. § 1252(a)(2)(D)
(acknowledging court of appeals jurisdiction to address questions of law
raised in a petition for review).
Faudoa has standing in this case. Faudoa’s injury, i.e., the IJ’s denial
of administrative closure, still exists. Redressability also exists; the IJ’s order
may be reversed in a decision favorable to Faudoa. Accordingly, we turn to
the merits of Faudoa’s petition.
IV.
Faudoa asserts the BIA erred by retroactively applying Castro-Tum
and L-A-B-R- in dismissing his appeal. Although we recognize that AG
precedents are typically binding upon the BIA, see Matter of Abdelghany, 26
I&N Dec. 254, 265 (BIA 2014), we are aware of no rule that allows the BIA
“the benefit of retroactivity always and automatically.” See De Niz Robles v.
Lynch, 803 F.3d 1165, 1173 (10th Cir. 2015) (discussing same). On the
contrary, our precedent on administrative retroactivity instructs that
“retroactivity must be balanced against the mischief of producing a result
which is contrary to a statutory design or to legal and equitable
principles. Microcomputer Tech. Inst. v. Riley, 139 F.3d 1044, 1050 (5th Cir.
1998) (quoting SEC v. Chenery Corp., 332 U.S. 194, 202 (1947)). “To apply
that instruction, this court ‘balance[s] the ills of retroactivity against the
disadvantages of prospectivity.’”6 Monteon-Camargo v. Barr, 918 F.3d 423,
6
For example, “in McDonald v. Watt, 653 F.2d 1035 (5th Cir. Unit A. Aug. 1981),
we examined the extent of the agency’s departure from previous interpretation and the
reasonableness of the aggrieved party’s reliance on one side of the balance, and the
statutory or regulatory interest in retroactivity, on the other.” Microcomputer Tech. Inst.,
139 F.3d at 1050. Although other circuits have adopted the five-factor test set forth in
Retail, Wholesale & Dep’t Store Union v. N.L.R.B., 466 F.2d 380, 390 (D.C. Cir. 1972), we
have not done so. Id.7
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430 (5th Cir. 2019) (quoting Microcomputer Tech. Inst., 139 F.3d at 1050. If
the disadvantage of prospectivity “is greater than the ill effect of the
retroactive application of a new standard, it is not the type of retroactivity
which is condemned by law.” Id. (quoting Chenery, 332 U.S. at 203).
In Monteon-Camargo, we considered the BIA’s retroactive application
of In re Diaz-Lizarraga, 26 I&N Dec. 847, 848 (BIA 2016), which altered its
interpretation of a “crime of moral turpitude.” Id. We noted that applying
the new definition to Monteon-Camargo’s 2007 conviction “contravene[d]
basic presumptions about our legislative system” and “would compromise
the ‘familiar due process considerations of fair notice, reasonable reliance,
and settled expectations.’” Id. at 430–31 (quoting Landgraf v. USI Film
Prods., 511 U.S. 244, 270 (1994)) (cleaned up). Against these grave
disadvantages, the Government had failed to offer a single advantage. Id. at
431. We thus concluded that the BIA had erred in retroactively applying
Diaz-Lizarraga. Id.
A.
Turning to the instant case, we first address the BIA’s retroactive
application of Castro-Tum.7 The BIA retroactively applied Castro-Tum to
affirm the IJ’s denial of Faudoa’s request for administrative closure. In
Castro-Tum, the AG held “that [IJs] and the [BIA] do not have the general
authority to suspend indefinitely immigration proceedings by administrative
closure.” 27 I&N Dec. at 272. This decision overruled the BIA’s prior
precedential decision Matter of Avetisyan, 25 I&N Dec. 688, 690 (BIA 2012),
which held that IJs and the BIA had the authority administratively to close a
case. Castro-Tum was thus a significant departure from prior precedent.
7
Faudoa does not challenge the merits of Castro-Tum, and we likewise do not
address the validity of Castro-Tum in this opinion.
8
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Faudoa contends that he relied on prior precedent in choosing his
legal strategy of not seeking voluntary departure. Although the government
asserts that this cannot be the case, as Faudoa declined voluntary departure
after the IJ had already denied administrative closure, that contention
assumes that the BIA would have upheld the IJ’s decision under its prior
precedent, Avetisyan. We thus conclude that Faudoa justifiably relied on
prior precedent in choosing his legal strategy. 8 “Retroactively applying
[Castro-Tum] would thus compromise the familiar due process
considerations of fair notice, reasonable reliance, and settled expectations.”
Monteon-Camargo, 918 F.3d at 430–31 (quoting Landgraf, 511 U.S. at 270)
(cleaned up). On the other hand, the government has presented no
disadvantage to applying Castro-Tum prospectively, and we can see no harm
in this regard. For these reasons, we conclude the BIA abused its discretion
by retroactively applying Castro-Tum to affirm the IJ’s denial of Faudoa’s
request for administrative closure. We therefore grant Faudoa’s petition for
review of the BIA’s retroactive application of Castro-Tum and remand with
instruction to apply the factors set forth in Avetisyan, 25 I&N Dec. 688.
B.
Next, we address the BIA’s retroactive application of L-A-B-R-. The
BIA cited L-A-B-R-, 27 I&N Dec. at 415–417, in affirming the IJ’s denial of
8
Generally, to obtain an unlawful presence waiver, individuals who are in
immigration proceedings must have their proceedings administratively closed to proceed.
8 C.F.R. § 212.7(e). This is clearly what Faudoa was attempting to do. The government
notes that aliens with a final removal order may still obtain an unlawful presence waiver by
filing an I-212 request for “permission to reapply for admission” and gaining approval by
USCIS under 8 C.F.R. § 212.7(e). But this would lengthen the requisite process and thus
does not change our determination that Faudoa justifiably relied on prior precedent in
choosing his legal strategy.
9
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continuance for lack of good cause. In L-A-B-R-, the AG held “that an [IJ]
should assess whether good cause supports such a continuance by applying a
multifactor analysis, which requires that the [IJ]’s principal focus be on the
likelihood that the collateral relief will be granted and will materially affect
the outcome of the removal proceedings.” Id. at 406. Unlike Castro-Tum,
however, L-A-B-R- was not a significant departure from prior precedent.
To the contrary, prior BIA decisions are consistent with L-A-B-R-.
See, e.g., Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009) (stating that “a
variety of factors may be considered” in determining whether to grant
continuance, but “the focus of the inquiry is the apparent ultimate likelihood
of success on the [sought collateral relief]”). L-A-B-R- thus merely clarified
the relevant factors to be considered in determining whether there is good
cause for continuance.
In this action specifically, the IJ relied on Hashmi in denying Faudoa’s
motion for continuance for lack of good cause and used virtually the same
analysis as the BIA. Faudoa’s assertion that L-A-B-R- was a significant
departure from previous practice therefore falls flat. We discern no harm in
the BIA’s retroactive application of L-A-B-R-, and it follows that the BIA did
not abuse its discretion in this regard. Accordingly, we deny Faudoa’s
petition for review of the BIA’s retroactive application of L-A-B-R- to affirm
the IJ’s denial of a continuance.
V.
For the foregoing reasons, Faudoa’s petition for review is
GRANTED IN PART, DENIED IN PART, and this action is
REMANDED for further proceedings consistent with this opinion.
10