Javier Chavez Gonzalez v. Merrick Garland

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1924
JAVIER CHAVEZ GONZALEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: September 21, 2021 Decided: October 20, 2021
Before FLOYD, THACKER, and HARRIS, Circuit Judges.
Petition for review granted in part and denied in part; vacated and remanded by published
opinion. Judge Thacker wrote the opinion, in which Judge Floyd and Judge Harris joined.
ARGUED: Benjamin Ross Winograd, IMMIGRANT & REFUGEE APPELLATE
CENTER, LLC, Alexandria, Virginia, for Petitioner. Sara J. Bayram, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Rebekah
G. Grafton, FAY GRAFTON NUNEZ, Raleigh, North Carolina, for Petitioner. Brian M.
Boynton, Acting Assistant Attorney General, John W. Blakeley, Assistant Director, Office
of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
THACKER, Circuit Judge:
In August 2016, Javier Chavez Gonzalez (“Petitioner”) was granted deferred action
on his removal from the United States pursuant to the Deferred Action for Childhood
Arrivals program (“DACA”). As a result of his conviction for a misdemeanor in North
Carolina, the United States Department of Homeland Security (“DHS”) terminated
Petitioner’s grant of deferred action, and Petitioner was immediately placed in removal
proceedings.
However, during the course of his proceedings before the immigration judge (“IJ”),
DHS officially restored Petitioner’s DACA grant of deferred action. As a result, Petitioner
asked the IJ to either administratively close his case, terminate the removal proceedings,
or grant a continuance based on his mother’s pending application to be a legal permanent
resident (“LPR”). The IJ denied all requests for relief, and Petitioner appealed to the Board
of Immigration Appeals (“BIA”).
While the matter was pending in the BIA, Petitioner’s mother obtained LPR status,
and Petitioner filed a motion to remand with the BIA. The BIA affirmed the IJ’s decision
and denied the motion to remand. Relying on Matter of S-O-G- & F-D-B-, 27 I. & N. Dec.
462 (A.G. 2018), the BIA reasoned that neither the IJs nor the BIA possess the authority to
terminate removal proceedings. The BIA also found administrative closure and a
continuance to be inappropriate based on the speculative possibility of Petitioner’s mother
earning LPR status. The BIA denied the motion to remand because Petitioner failed to
present prima facie evidence that his mother’s LPR status would qualify him for
cancellation of removal. Petitioner timely filed this petition for review.
2
We hold today that the IJs and BIA possess the inherent authority to terminate
removal proceedings, abrogating Matter of S-O-G- & F-D-B-. We likewise conclude the
BIA improperly denied Petitioner’s request for administrative closure because it failed to
address Petitioner’s specific argument based on his DACA status. However, we find no
error in the IJ’s decision to deny Petitioner’s request for a continuance and the BIA’s
decision to deny the motion to remand. We therefore grant the petition for review in part,
deny it in part, vacate the BIA’s decision, and remand for proceedings consistent with this
opinion.
I.
Factual and Procedural History
A.
The DACA Program
In 2012, DHS created the DACA program for “certain young people who were
brought to this country as children.” Dep’t of Homeland Sec. v. Regents of the Univ. of
Cal., 140 S. Ct. 1891, 1901 (2020) (internal quotation marks omitted). Through the
program, noncitizens who satisfy certain criteria -- i.e., noncitizens who came to the United
States before age 16 and were under age 31 in 2012; have continuously resided here since
2007; are current students, have completed high school, or are honorably discharged
veterans; have not been convicted of any serious crimes; and do not threaten national
security or public safety -- could receive renewable grants of “deferred action” for
renewable two-year terms. Id. “This commendable exercise in administrative discretion”
may be exercised “at any stage of the administrative process.” Reno v. American-Arab
3
Anti-Discrimination Comm., 525 U.S. 471, 484 (1999) (quoting Gordon, Mailman & Yale-
Loehr, Immigration Law and Procedure Vol. 6, § 72.03(2)(h) (1998)). Those granted such
relief “are also eligible for work authorization and various federal benefits.” Dep’t of
Homeland Sec., 140 S. Ct. at 1901. However, noncitizens are not eligible to receive relief
pursuant to DACA if they have been “convicted of multiple misdemeanors, a single
significant misdemeanor, or any felony offense.” Ariz. Dream Act Coal. v. Brewer, 757
F.3d 1053, 1058 (9th Cir. 2014).
From around 2013 to 2018, DHS automatically terminated a grant of deferred action
and placed DACA recipients in removal proceedings upon the issuance of a Notice to
Appear (“NTA”). But in February 2018, the Central District of California issued a
preliminary injunction to a nationwide class of DACA recipients who have had or will have
their DACA grant and employment authorization revoked without notice or an opportunity
to respond, prohibiting DHS from automatically terminating deferred action upon an
issuance of an NTA without notice and opportunity to respond. See Inland Empire-
Immigrant Youth Collective v. Nielsen, No. 17-cv-2048, 2018 WL 1061408, at *2 (C.D.
Cal. Feb. 26, 2018) (“Inland Empire”).
B.
The IJ Proceedings
Petitioner entered the United States from Mexico on October 20, 1998, when he was
three years old, and he has not left the United States since. On August 10, 2016, Petitioner
was granted deferred action pursuant to DACA for a two-year period, which he has
continually renewed every two years. Prior to Inland Empire, on October 6, 2017,
4
Petitioner pled guilty to misdemeanor possession of drug paraphernalia in North Carolina
state court. Thereafter, DHS terminated Petitioner’s grant of deferred action, and three
days later, Petitioner was placed in removal proceedings, without being given notice or an
opportunity to respond.
Less than a month after Inland Empire’s nationwide injunction, on March 22, 2018,
Petitioner appeared for his initial hearing before the IJ. Petitioner conceded he was
inadmissible for being present in the United States without being admitted or paroled, but
he advised the IJ that DHS had revoked his grant of deferred action without notice, and
that, as a result, he intended to request administrative closure. DHS responded that the
Inland Empire injunction “doesn’t operate to resolve removal proceedings or affect
removal proceedings in any fashion.” A.R. 80–81 (emphases supplied). 1 Rather, DHS
opined that the injunction “only operates to control whether or not an alien can actually be
removed.” Id. at 81. Therefore, DHS stated that it would “not agree[] to administrative[ly]
clos[e]” Petitioner’s removal proceedings. Id. Petitioner also pointed out that his mother
had a pending application for LPR status, and if his mother achieved LPR status, Petitioner
could apply for cancellation of removal.
On March 30, 2018, about a week after Petitioner’s initial hearing, DHS officially
restored Petitioner’s DACA grant of deferred action pursuant to Inland Empire. At that
point, Petitioner again asked the IJ to either administratively close his case or terminate the
1
Citations to the “A.R.” refer to the Administrative Record submitted by the parties
in this agency review appeal.
5
proceedings. In the alternative, Petitioner sought a continuance or administrative closure
because his mother had submitted an application to become an LPR, which was still
pending. 2
On April 12, 2018, the IJ held Petitioner’s final hearing. The IJ denied Petitioner’s
request for a continuance pursuant to 8 C.F.R. § 1003.29 for “failure to show good cause”
because Petitioner was not at that time eligible for any relief from removal. A.R. 63; see
id. at 86 (“You made a motion for a continuance which I denied because [Petitioner]
doesn’t have any current relief.”). Even though Petitioner’s grant of deferred action had
been restored, the IJ reasoned that Petitioner remained subject to his removability charge,
and thus denied the motion to terminate the proceedings. The IJ also denied the request
for administrative closure because Petitioner was not eligible for “immediately
foreseeable” relief. Id. at 90.
The IJ then issued summary orders denying the requests for termination,
continuance, and closure and ordered Petitioner removed to Mexico. Petitioner timely
appealed to the BIA.
2
By doing so, Petitioner hoped to file a request for cancellation of removal. The
Immigration and Nationality Act provides, “The Attorney General may cancel removal of
. . . an alien who is inadmissible or deportable from the United States if the alien,” inter
alia, “establishes that removal would result in exceptional and extremely unusual hardship
to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien
lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D) (emphases
supplied).
6
C.
The BIA Proceedings
While Petitioner’s BIA appeal was pending, in May 2018, Attorney General
Jefferson Sessions issued a decision holding that IJs and the BIA did not have the general
authority to administratively close cases. See Matter of Castro-Tum, 27 I. & N. Dec. 271,
272 (A.G. 2018). Four months after that, Attorney General Sessions issued another
decision holding that IJs and BIA also lacked the general authority to terminate
proceedings. See Matter of S-O-G- & F-D-B-, 27 I. & N. Dec. 462, 463 (A.G. 2018).
After filing his appeal with the BIA, but before Petitioner’s appeal was decided, two
significant events occurred. First, this court overruled Castro-Tum, relying on two
regulations that bestow the IJ and BIA authority to administratively close cases -- 8 C.F.R.
§§ 1003.10(b) and 1003.1(d)(1)(ii). See Romero v. Barr, 937 F.3d 282, 292–94 (4th Cir.
2019). And second, Petitioner’s mother attained LPR status.
As a result, Petitioner argued to the BIA that the IJ should have either terminated or
administratively closed the proceedings because his grant of deferred action had been
restored. Alternatively, Petitioner argued that the IJ should have administratively closed
or continued the proceedings, pending the adjudication of his mother’s application for LPR
status, to allow him to apply for cancellation of removal. Petitioner also filed a motion to
remand based on the change in his mother’s status.
On August 6, 2020, the BIA denied Petitioner’s appeal in a single member,
unpublished decision. The BIA addressed Petitioner’s claims de novo without adopting
the IJ’s decision.
7
As to the denial of Petitioner’s request to terminate his proceedings, the BIA
explained, “[W]e agree that the [IJ] lacks the authority to terminate these proceedings.”
A.R. 3 (citing Matter of S-O-G-, 27 I. & N. Dec. 462). In addition, the BIA reasoned that
Petitioner’s deferred action “does not confer any legal status.” Id. And because Petitioner
did not contest that he is removable as charged and did not assert that his status had been
adjusted or changed, the BIA concluded “the ground of removability was properly
sustained and termination of proceedings was not warranted.” Id.As to Petitioner’s request for administrative closure, the BIA recognized that
Castro-Tum had been abrogated by this court in Romero; therefore, it recognized that the
IJ and BIA had general authority to administratively close cases. Even so, the BIA
reasoned that administrative closure “is not to be used where an event is speculative, where
the event causes unreasonable delay, or where collateral events may be potentially
irrelevant to removal proceedings.” A.R. 4. In this vein, the BIA also noted that
Petitioner’s motion “at the time it was presented to the [IJ], was based on speculative relief
before [United States Citizenship and Immigration Services] and that closure could be for
a potentially indefinite period of time.” Id. The BIA further noted that Petitioner “did not
establish whether his mother was likely to obtain adjustment of status, and that he would
meet the hardship requirement for cancellation of removal.” Id. As a result, the BIA denied
Petitioner’s motion for administrative closure.
As to Petitioner’s request for a continuance, the BIA affirmed the IJ’s denial,
reasoning that Petitioner did not establish good cause, “given the speculative nature of the
8
relief sought and potentially indeterminate period of time for [Petitioner] to be eligible for
any relief before the [IJ].” A.R. 4.
Finally, the BIA denied Petitioner’s motion to remand, reasoning that, despite the
fact that Petitioner’s mother is now a qualifying relative for Petitioner to claim cancellation
of removal, Petitioner “has not supported his motion with other evidence establishing his
prima facie eligibility for cancellation of removal, such as evidence that his mother would
suffer exceptional and extremely unusual hardship in the event of his removal.” A.R. 4
(citing Matter of Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992)).
II.
Petitioner filed a petition for this court’s review of the BIA’s decision on August
27, 2020. We possess jurisdiction pursuant to 8 U.S.C. § 1252(a). Where, as here, the BIA
issues a stand-alone opinion upon de novo review of the case without adopting the
immigration judge’s opinion, this court reviews solely the BIA’s decision and does not
separately consider the IJ’s decision. See Martinez v. Holder, 740 F.3d 902, 908 & n.1
(4th Cir. 2014); see also Asentic v. Sessions, 873 F.3d 974, 980 (7th Cir. 2017) (“[W]hen
the [BIA] has issued a stand-alone decision, even if that decision endorses the [IJ]’s
reasoning, we review only the [BIA]’s decision.”).
III.
Termination of Removal Proceedings
A.
Attorney General Sessions concluded in Matter of S-O-G- that IJs and the BIA may
only exercise the powers delegated to them by statute or federal regulation, and that no
9
statute or regulation confers to IJs and the BIA the general authority to terminate
proceedings. See 27 I. & N. Dec. 462, 465–68 (A.G. 2018). Therefore, Attorney General
Sessions concluded that neither IJs nor the BIA have the inherent power to terminate
proceedings after they have begun. See id. at 463, 467. Here, the BIA relied on Matter of
S-O-G- to reject Petitioner’s request to terminate his removal proceedings. But for his part,
Petitioner contends that the immigration courts have the inherent authority to terminate
removal proceedings, and this court should overrule the Attorney General’s decision in
Matter of S-O-G-.
B.
Questions concerning the authority of the immigration courts are legal questions
reviewed de novo, while “afford[ing] appropriate deference” to the BIA’s interpretation of
the Immigration and Nationality Act (“INA”) and attendant regulations. Romero v. Barr,
937 F.3d 282, 290 (4th Cir. 2019). Generally, “if a regulation is ambiguous, the Court
gives substantial deference to an agency’s interpretation of its own regulation pursuant to
Auer v. Robbins, 519 U.S. 452, 461 (1997).” Id. However, Auer deference “can arise only
if a regulation is genuinely ambiguous.” Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019).
And a regulation can only be deemed “genuinely ambiguous if uncertainty exists even after
a court has resorted to all the standard tools of interpretation, including consideration of
‘text, structure, history, and purpose of a regulation, in all the ways it would if it had no
agency to fall back on.’” Romero, 937 F.3d at 291 (quoting Kisor, 139 S. Ct. at 2415)
(alterations and some internal quotation marks omitted).
10
C.
Petitioner argues that certain immigration regulations “confer the general authority
to administratively close proceedings,” and therefore, “they [also] provide the general
authority to terminate proceedings.” Pet’r’s Br. 19 (emphases supplied) (citing Romero v.
Barr, 937 F.3d 282 (4th Cir. 2019)). To digest this argument, we start with the language
of the immigration regulations.
Petitioner relies on 8 C.F.R. § 1003.10(b) and 8 C.F.R. § 1003.1(d)(1)(ii). The
former, which pertains to IJs, provides:
In deciding the individual cases before them, . . . 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.
8 C.F.R. § 1003.10(b) (emphasis supplied). And the latter, which pertains to the BIA,
similarly provides, “[A] panel or [BIA] 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.” 8 C.F.R. § 1003.1(d)(1)(ii) (emphasis
supplied).
Despite this broad language, in Matter of S-O-G-, Attorney General Sessions
concluded, “[T]he relevant statutes and regulations do not give immigration judges the
discretionary authority to dismiss or terminate removal proceedings after those proceedings
have begun.” 27 I. & N. Dec. at 466. The Attorney General listed other regulations that
he believed bestow authority upon the immigration courts to terminate proceedings: i.e.,
dismissing proceedings where the Notice to Appear was improvidently issued or
11
circumstances changed such that a continuation was no longer in the best interest of the
Government, see 8 C.F.R. §§ 239.2(a)(6)–(7), 1239.2(c); terminating removal proceedings
to permit the noncitizen to proceed to a final hearing on a pending naturalization
application, see 8 C.F.R. § 1239.2(f); and terminating removal proceedings where DHS
has failed to sustain the charges of removability, see 8 C.F.R. § 1240.12(c). But Attorney
General Sessions noted that “in every other case, the removal hearing shall be completed
as promptly as possible.” Matter of S-O-G-, 27 I. & N. Dec. at 466 (quoting 8 C.F.R. §
1239.2(f)) (emphasis in S-O-G-). Attorney General Sessions concluded, “[C]onsistent with
my opinion in Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018), [IJs] have no
inherent authority to terminate or dismiss removal proceedings.” Id. at 463.
Additionally, in Castro-Tum, Attorney General Sessions addressed another
regulation, 8 C.F.R. § 1240.1(a)(1)(iv), which provides that IJs can “take any other action
consistent with applicable law and regulations as may be appropriate” -- language similar
to sections 1003.10(b) and 1003.1(d)(1)(ii). Castro-Tum, 27 I. & N. Dec. at 285 (quoting
8 C.F.R. § 1240.1(a)(1)(iv)). Relying on Castro-Tum, the Attorney General rejected the
idea that this language bestowed upon IJs the power to terminate removal proceedings. See
Matter of S-O-G-, 27 I. & N. Dec. at 466. In this regard, Attorney General Sessions
explained:
Given that [8 C.F.R. § 1240.1(a)(1)(iv)] does not permit the
[IJ] to suspend indefinitely a respondent’s removal
proceedings, see Castro-Tum, 27 I. & N. Dec. at 285, the
provision similarly cannot be read to provide the authority to
end removal proceedings entirely. Such an action would both
exceed the authorized bases for dismissal or termination in the
regulations and conflict with the limited authority to dismiss or
12
terminate removal proceedings under 8 C.F.R. § 1239.2. The
INA requires that “[a]t the conclusion of the proceeding the
immigration judge shall decide whether an alien is removable
from the United States.” 8 U.S.C. § 1229a(c)(1)(A) (emphasis
added). Consistent with that authorization, the immigration
regulations give enforcement officials, not immigration judges,
general discretionary authority to cancel a Notice to Appear
before removal proceedings commence or to move for the
dismissal of removal proceedings after they have begun. See 8
C.F.R. § 1239.2(a), (c); see also 8 C.F.R. § 1239.1.
Id. at 466–67 (some citations omitted). Attorney General Sessions did not address section
1003.10(b) or section 1003.1(d) in Matter of S-O-G-.
D.
Petitioner asserts that we should abrogate Matter of S-O-G- and conclude that IJs
and the BIA possess the inherent authority to terminate removal proceedings. For the
following reasons, we agree.
1.
We first consider the deference owed to the Attorney General’s interpretation in
Matter of S-O-G-. In doing so, we need look no further than our Romero decision.
Interpreting the very same regulations at issue here -- sections 1003.10(b) and
1003.1(d)(1)(ii) -- Romero stated, “[T]he plain language of [the regulations]
unambiguously confers upon IJs and the BIA the general authority to administratively close
cases such that an Auer deference assessment is not warranted.” 937 F.3d at 292. We
explained:
Applying the standard tools of interpretation -- namely, a
reading of the text of the relevant regulations -- we clearly
discern from the text that the authority of IJs and the BIA to
administratively close cases is conferred by the plain language
13
of 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii). See Kisor, 139
S. Ct. at 2414–15. Both regulations provide that IJs and the
BIA “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) (emphasis added). First, if we give the word “any”
its plain meaning, that language grants IJs and the BIA broad
discretion in how to manage and resolve cases because “[r]ead
naturally, the word ‘any’ has an expansive meaning, that is,
‘one or some indiscriminately of whatever kind.’” United
States v. Gonzales, 520 U.S. 1, 5 (1997) (quoting Webster’s
Third New International Dictionary 97 (1976)). Given this,
“any action . . . for the disposition of” the case is read most
naturally to encompass actions of whatever kind appropriate
for the resolution of a case. 8 C.F.R. §§ 1003.1(d)(1)(ii) &
1003.10(b) (emphasis added). In turn, this would plainly
include docket management actions such as administrative
closure, which often facilitate . . . case resolution.
Id. at 292 (some citations omitted). In Romero, we also reasoned that the plain meaning
given to the word “any” in other cases is given a broad interpretation. See id. at 292–93
(citing Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 220 (2008) (concluding that the use of
the word “any” to modify “‘other law enforcement officer’ is most naturally read to mean
law enforcement officers of whatever kind”); Massachusetts v. EPA, 549 U.S. 497, 529
(2007) (“The definition embraces all airborne compounds of whatever stripe, and
underscores that intent through the repeated use of the word ‘any.’”); Brogan v. United
States, 522 U.S. 398, 400 (1998) (“By its terms, 18 U.S.C. § 1001 covers ‘any’ false
statement -- that is, a false statement ‘of whatever kind.’”); 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.” (emphasis in original)); Int’l All. of Theatrical & Stage
Emps. v. NLRB, 334 F.3d 27, 34 (D.C. Cir. 2003) (noting that the use of “any” to modify
14
the term “employee” “signals that ‘employee’ should receive its broadest statutory
definition”).
There is no reason to reach a different result as to the unambiguity of the regulations
with regard to termination of removal proceedings. In Romero, we read the phrase “‘any
action’” to include “docket management actions . . . which often facilitate . . . case
resolution,” such as administrative closure. 937 F.3d at 292 (quoting 8 C.F.R. §§
1003.1(d)(1)(ii), 1003.10(b)) (emphasis in Romero). Termination of proceedings certainly
falls within this court’s reading of “any action”; indeed, termination actually ends a
proceeding rather than merely “facilitat[ing]” its end. See Matter of S-O-G-, 27 I. & N.
Dec. at 466 (referring to “end[ing] removal proceedings entirely” as “an action”).
Therefore, per Romero, no deference is due Attorney General Sessions in his view of the
immigration laws and regulations in this regard.
2.
As set forth in Romero, we interpreted the “expansive language” of sections
1003.10(b) and 1003.1(d)(1)(ii) and held that “the authority of IJs and the BIA to
administratively close cases is conferred by the plain language.” 937 F.3d at 292. Thus,
we viewed the language of these regulations as encompassing “actions of whatever kind
appropriate for the resolution of a case.” Id. Termination of removal proceedings is
certainly an “action[] of whatever kind”; indeed, as stated above, the Attorney General
admitted as much in Matter of S-O-G- itself. See 27 I. & N. Dec. at 466 (referring to
“end[ing] removal proceedings entirely” as “an action”). Thus, pursuant to Romero, the
regulations clearly encompass the “action” of termination of removal.
15
The Government’s arguments to the contrary do not hold up. In arguing that the IJ
and BIA lack inherent authority to terminate proceedings and that Matter of S-O-G- should
stand, the Government first relies on the idea that “once DHS . . . initiate[s] proceedings,
an immigration judge ‘shall’ hold removal proceedings and must adjudicate the alien’s
removability.” Resp’t’s Br. 24. In turn, the Government relies on 8 U.S.C.
§ 1229a(c)(1)(A), which provides, “At the conclusion of the proceeding, the [IJ] shall
decide whether an alien is removable from the United States.” Id. (emphasis supplied).
But the requirement that an IJ “decide” whether a noncitizen is removable does not dictate
or otherwise limit the actions an IJ may take after making that determination. And it
certainly does not forbid a termination or delay of “the proceeding.” Id. Indeed, there are
other circumstances under which it is appropriate for the immigration courts to stop or
pause removal proceedings. See, e.g., 8 C.F.R. §§ 239.2(a)(6)–(7); 1239.2(c) (Government
can move for dismissal of the proceedings, and the IJ can dismiss proceedings without
prejudice, where the Notice to Appear was improvidently issued or circumstances changed
such that a continuation was no longer in the best interest of the Government); 8 C.F.R.
§ 1239.2(f) (IJ can terminate removal proceedings to permit the immigrant to proceed to a
final hearing on a pending naturalization application).
The Government also notes that §§ 1003.10(b) and 1003.1(d)(1)(ii) only authorize
IJs and the BIA to take action “consistent with their authorities under the [INA] and
regulations,” but of the regulations authorizing termination and dismissal, “none [allow]
[IJs] or the [BIA] a general, discretionary authority to terminate removal proceedings.”
Resp’t’s Br. 25–26 (internal quotation marks omitted). In Romero, we declined to address
16
whether the phrase “consistent with their authorities . . .” constituted an independent
limitation on the authority conferred by sections 1003.10(b) and 1003.1(d)(1)(ii). 937 F.3d
at 293 n.11. But we fail to see how the general power to terminate proceedings is
“[in]consistent” with the authorities bestowed by the INA. 8 C.F.R. §§ 1003.10(b),
1003.1(d)(1)(ii). We have found no provisions stating that the IJ or BIA cannot terminate
removal proceedings, and the Government does not cite to any.
The Attorney General’s decision in Matter of S-O-G- is therefore in conflict with
the plain meaning of section 1003.10(b) and 1003.1(d)(1)(ii) and must be abrogated.
3.
Even assuming the plain language of the regulations is ambiguous and implicates
Auer deference, the Government’s position fails.
To receive Auer deference the “agency’s reading must still be reasonable.” Kisor,
139 S. Ct. at 2415 (internal quotation marks omitted). Even then, “‘not every reasonable
agency reading’ should be accorded deference because a court must still ‘make an
independent inquiry into whether the character and context of the agency interpretation
entitles it to controlling weight.’” Romero, 937 F.3d at 291 (quoting Kisor, 139 S. Ct. at
2416). This inquiry “‘does not reduce to any exhaustive test,’ but does rely on a number of
‘especially important markers.’” Id. (quoting Kisor, 139 S. Ct. at 2416). The agency’s
interpretation of its own regulation, for example, “must be its ‘authoritative or official
position, rather than any more ad hoc statement not reflecting the agency’s views’” and
“must reflect the ‘fair and considered judgment’ of the agency, in contrast to those based
17
on ‘post hoc rationalizations’ and ‘convenient litigating positions.’” Id. (quoting Kisor,
139 S. Ct. 2416–17) (alterations omitted).
Looking to the character and context of the Government’s litigating position -- in
stark contrast to its recent regulatory position explained below -- we are quite frankly
puzzled that the Government currently stands in support of Attorney General Sessions’s
decision in Matter of S-O-G-, particularly in light of the fact that Matter of S-O-G- relies
heavily on Castro-Tum, which is no longer good law.
To begin with, this court has overruled Castro-Tum in Romero, in which we relied
on the broad language of 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) to hold that the
immigration courts possess the authority to administratively close cases. Indeed, the fact
that Castro-Tum has been overruled should not only begin the analysis here, but it should
definitively end it.
But, beyond the fact that Castro-Tum is now defunct, Attorney General Garland no
longer takes the position set forth in Castro-Tum and has since disavowed the idea that the
IJs and BIA cannot administratively close proceedings. In Matter of Cruz-Valdez, Attorney
General Garland decided, “Because Castro-Tum departed from long-standing practice, it
is appropriate to overrule that opinion in its entirety and restore administrative closure”
authority to the agency. Matter of Cruz-Valdez, 28 I. & N. Dec. 326, 329 (A.G. 2021). In
doing so, Attorney General Garland noted “three courts of appeals have rejected Castro-
Tum” and held that administrative closure is “‘plainly within an [IJ]’s authority’ under
Department of Justice regulations.” Id. at 328 (citing Arcos Sanchez v. Att’y Gen. U.S. of
Am., 997 F.3d 113, 121–22 (3d Cir. 2021); Meza Morales v. Barr, 973 F.3d 656, 667 (7th
18
Cir. 2020) (Barrett, J.); Romero, 937 F.3d at 292). Indeed, “[o]nly one court of appeals has
upheld Castro-Tum.” Id. (citing Hernandez-Serrano v. Barr, 981 F.3d 459, 464 (6th Cir.
2020). “[B]ut even that court subsequently ruled that [IJs] and the [BIA] do have authority
to grant administrative closure in order to permit a noncitizen to apply for a provisional
unlawful presence waiver.” Id. (citing Garcia-DeLeon v. Garland, 999 F.3d 986, 991–93
(6th Cir. 2021)). Attorney General Garland’s position on administrative closure in Matter
of Cruz-Valdez (and the reasoning behind it) calls into question the Government’s position
in this matter and Matter of S-O-G- that IJs and the BIA do not have the inherent authority
to terminate proceedings. 3
4.
Having decided the IJs and BIA possess the inherent authority to terminate
immigration proceedings, we hereby abrogate the Attorney General’s decision in Matter
of S-O-G- & F-D-B-, 27 I. & N. Dec. 462 (A.G. 2018). The remaining “limitation in the
text of §§ 1003.10(b) and 1003.1(d)(1)(ii) on the term ‘any action’ is that the circumstances
be ‘appropriate and necessary’” for IJs and the BIA to terminate proceedings. Romero,
937 F.3d at 293. “One does not need to open up a dictionary in order to realize the
capaciousness” of the phrase “appropriate and necessary.” Michigan v. EPA, 135 S. Ct.
3In any event, Attorney General Sessions’s construction of the immigration
regulations ignores their plain language. See Kisor, 139 S. Ct. at 2417 (“[A]n agency’s
reading of a rule must reflect ‘fair and considered judgment’ to receive Auer deference”
(quoting Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012)). As
explained, sections 1003.10(b) and 1003.1(d)(1)(ii) use extremely broad language giving
discretion to the immigration courts to take appropriate “action[s]” to dispose of a case,
and no other regulations forbid the agency from terminating removal proceedings.
19
2699, 2707 (2015). And it remains true that “IJs and the BIA possess broad discretion in
how to manage their cases.” Romero, 937 F.3d at 294. It is up to the agency, then, to
determine whether in Petitioner’s case, termination is an “appropriate and necessary”
action. Because the BIA failed to recognize its (and the IJ’s) authority to make such
determination, we are constrained to remand for consideration of the “appropriate and
necessary” inquiry. 4
E.
Therefore, because sections 1003.10(b) and 1003.1(d)(1)(ii) grant authority to the
IJ and BIA to terminate removal proceedings -- and in fact, such a holding is consistent
with both Romero and Attorney General Garland’s decision in Cruz-Valdez -- we remand
to the BIA for further proceedings consistent with that holding. Specifically, the
immigration courts can now determine whether the DACA grant of deferred action is
4
To the extent the Government argues that, even if the BIA possessed the authority
to terminate Petitioner’s proceedings, it did not abuse its discretion in denying Petitioner’s
request to terminate because his legal status did not change when he attained deferred status
pursuant to DACA, we reject this argument. It is clear the BIA first and foremost
“agree[d]” that the IJ “lack[ed] authority to terminate these proceedings.” A.R. 3. Its
analysis is wrapped up in that premise, presupposing that if Petitioner’s legal status had
been adjusted and/or DHS did not prove Petitioner was removable, then the IJ would have
authority to terminate. And on this point, it is hard to swallow the way the Government
argues that Petitioner’s legal status as “removable” has not changed based on his award of
deferred action, but then, when arguing the futility of remand on the administrative closure
issue, it states: “[W]hile a grant of administrative closure would prevent DHS from
removing [Petitioner] from the United States, DHS is already prevented from removing
him given his DACA status.” Resp’t’s Br. 43 (emphasis supplied). The Government
cannot have it both ways.
20
“appropriate and necessary for the disposition” of Petitioner’s case. 8 C.F.R.
§§ 1003.10(b), 1003.1(d)(1)(ii).
IV.
Administrative Closure
Petitioner next challenges the BIA’s rejection of his request for administrative
closure without specifically addressing DACA as a basis for his request. The Government
admits, “in upholding the denial of administrative closure, the [BIA] did not mention
[Petitioner]’s DACA status.” Resp’t’s Br. 40. The Government also admits, “No one
disputes that the agency in its exercise of discretion may, and has granted, administrative
closure to some DACA recipients.” Id. at 42; see also Pet’r’s Br. 34 & Exs. A, B (providing
cases where IJs have terminated proceedings against DACA recipients who, like Petitioner,
were improperly placed in removal proceedings after Inland Empire). Despite these
admissions, however, the Government contends remand would be futile because “[t]he
agency was aware that [Petitioner] had DACA status at the time it adjudicated his
administrative closure request,” and Petitioner’s “DACA status does not overcome any of
the agency’s bases for denying administrative closure.” Resp’t’s Br. 40; see also id. at 41
(“DACA does not disturb [Petitioner]’s undisputed removability.”).
Again, we agree with Petitioner. “[A]n agency’s action must be upheld, if at all, on
the basis articulated by the agency itself.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 50 (1983) (citing SEC v. Chenery Corp., 332 U.S. 194, 196
(1947)). Thus, when “a BIA order does not demonstrate that the agency has considered an
issue, ‘the proper course, except in rare circumstances, is to remand to the agency for
21
additional investigation or explanation.’” Nken v. Holder, 585 F.3d 818, 822 (4th Cir.
2009) (quoting INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam)).
The Government does not dispute that the BIA did not mention DACA in rejecting
Petitioner’s request. Furthermore, the Government admits that in some cases, the agency
will (and has) granted administrative closure based on DACA. The Supreme Court has
even cited approvingly a treatise stating that when an immigrant is granted deferred action,
“no action will thereafter be taken to proceed against [him], even on grounds normally
regarded as aggravated.” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S.
471, 484 (1999) (quoting C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and
Procedure § 72.03 (2)(h) (1998)). Therefore, colorable arguments can be made that
administrative closure is appropriate and necessary.
Therefore, upon remand, the BIA must address Petitioner’s DACA-based
administrative closure argument.
V.
Request for Continuance
Petitioner next contends that the IJ abused its discretion in denying Petitioner’s
request for a continuance in order to allow him to apply for cancellation of removal based
on his mother’s then-pending LPR application. An IJ “may grant a motion for continuance
for good cause shown.” 8 C.F.R. § 1003.29. “Whether to grant a motion to continue
deportation proceedings is within the sound discretion of the IJ and is reviewed for abuse
of discretion only.” Onyeme v. INS, 146 F.3d 227, 231 (4th Cir. 1998). Thus, we must
uphold the denial of a continuance “unless it was made without a rational explanation, it
22
inexplicably departed from established policies, or it rested on an impermissible basis, e.g.,
invidious discrimination against a particular race or group.” Id. (internal quotation marks
omitted); see also Lendo v. Gonzales, 493 F.3d 439, 441 (4th Cir. 2007).
In affirming the IJ’s denial of Petitioner’s motion to continue, the BIA explained
that at the time Petitioner sought the continuance from the IJ, his mother had not yet
attained LPR status. As a result, the continuance would have been for a “potentially
indeterminate period of time” and the relief sought was of a “speculative nature.” A.R. 4.
This is a permissible reason to deny a continuance. In fact, this scenario fits neatly into
our decision in Lendo v. Gonzales, where we held that the IJ did not abuse her discretion
in refusing to continue removal proceedings to await a decision on the petitioner’s wife’s
labor certification application, and the petitioner was not eligible for adjustment of status
when he sought the continuance. See 493 F.3d at 441–42; see also Oyneme, 146 F.3d at
232 (no abuse of discretion where “numerous contingencies” had to occur before
noncitizen could obtain the relief he sought but had not yet applied for).
Therefore, because the IJ’s decision was not without rational explanation, did not
inexplicably depart from established policies, or did not rest on an impermissible basis, we
deny Petitioner’s petition for review with regard to this continuance request.
VI.
Motion to Remand
Finally, Petitioner contends that the BIA erred in declining to remand his case so
that he could apply for cancellation of removal based on his mother’s newly-awarded LPR
23
status. The INA provides, “The Attorney General may cancel removal of . . . an alien who
is inadmissible or deportable from the United States if the alien” --
(A) has been physically present in the United States for a
continuous period of not less than 10 years immediately
preceding the date of such application;
(B) has been a person of good moral character during such
period;
(C) has not been convicted of an offense under section
1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title,
subject to paragraph (5); and
(D) establishes that removal would result in exceptional and
extremely unusual hardship to the alien’s spouse,
parent, or child, who is a citizen of the United States or
an alien lawfully admitted for permanent residence.
8 U.S.C. § 1229b(b)(1) (emphases supplied). On this point, Petitioner contends, “[A]fter
Petitioner’s mother acquired permanent residence while his case was on appeal, the BIA
misapplied its own precedent in Matter of Coelho, 20 I. & N. Dec. 464 (BIA 1992), in
denying his motion to remand[.]” Pet’r’s Br. 47; see also id. at 56.
We normally review the denial of a motion to remand for abuse of discretion, see
Obioha v. Gonzales, 431 F.3d 400, 408 (4th Cir. 2005), but here, Petitioner makes a legal
argument invoking de novo review, see Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir.
2010). Nonetheless, under either standard, Petitioner’s argument fails. See Tairou v.
Whitaker, 909 F.3d 702, 706 (4th Cir. 2018) (noting that the BIA “abuses its discretion in
making an error of law”).
To begin, Petitioner’s motion is not so much a motion to remand as a motion to
reopen:
24
Remand is available in two contexts before the BIA: when an
alien seeks reconsideration of a decision or when an alien seeks
to have the proceedings reopened. Although these motions are
often treated interchangeably, a request for reconsideration is
based upon “errors of fact or law in the prior Board decision,”
8 C.F.R. § 1003.2(b)(1), whereas a request to reopen
proceedings results from changed circumstances and
specifically contemplates that an alien will do so “for the
purpose of submitting an application for relief,” 8 C.F.R.
§ 1003.2(c)(1).
Obioha, 431 F.3d at 408 (emphasis supplied); see also 8 C.F.R. § 1003.2(c)(1) (motion to
reopen can be granted based “on the basis of circumstances that have arisen subsequent to
the hearing”). Here, Petitioner’s “changed circumstance[]” is his mother’s new LPR status,
which will enable him to apply for cancellation of removal. Obioha, 431 F.3d at 408. In
this way, Petitioner’s request is a classic example of a motion to reopen.
Turning to Petitioner’s argument that the BIA misapplied its own precedent in
Matter of Coelho, that decision provides:
Where a motion to remand simply articulates the remedy
requested by an appeal, we treat it as part of the appeal and do
not require it to conform to the standards for consideration of
motions. However, where a motion to remand is really in the
nature of a motion to reopen or a motion to reconsider, it must
comply with the substantive requirements for such motions.
20 I. & N. Dec. 464, 471 (BIA 1992). Relying on Coelho, Petitioner attempts to argue that
his motion is a true “motion to remand” because it merely “articulates the remedy requested
by an appeal.” Pet’r’s Br. 58. But in actuality, the BIA was correct that Petitioner is basing
his argument on the changed circumstance of his mother’s status, and therefore, he would
need to meet the requirements for motions to reopen.
25
One of these requirements is that the motion be “supported by affidavits or other
evidentiary material,” which is “material that was not available and could not have been
discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). Petitioner
concedes that he did not present any evidence of hardship, which is one of the requirements
for cancellation of removal. See Gonzalez Galvan v. Garland, 6 F.4th 552, 555 (4th Cir.
2021) (for cancellation of removal, petitioner must prove that his removal would impose
an “exceptional and extremely unusual hardship” on his United States citizen or LPR
family member, pursuant to 8 U.S.C. § 1229b(b)(1)(D)). As such, the BIA did not abuse
its discretion or commit an error of law in relying on Matter of Coelho or in denying
Petitioner’s motion to remand.
We note, however, that on remand, Petitioner may choose to renew his request for
cancellation of removal based on his mother’s LPR status. We express no opinion on the
merits or procedural propriety of any such request.
VII.
For these reasons, we grant the petition for review with regard to Petitioner’s
termination of removal and administrative closure arguments. We otherwise deny the
petition. We vacate and remand for further proceedings consistent with this opinion.
PETITION GRANTED IN PART, DENIED IN PART;
VACATED AND REMANDED
26