Salvador Gonzalez-Vega v. Loretta E. Lynch

United States Court of Appeals
For the Eighth Circuit
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No. 15-3281
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Salvador Gonzalez-Vega
lllllllllllllllllllllPetitioner
v.
Loretta E. Lynch, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: September 20, 2016
Filed: October 14, 2016
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Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
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ARNOLD, Circuit Judge.
After an immigration judge denied Salvador Gonzalez-Vega's request for
administrative closure of his immigration proceedings, he asked the Board of
Immigration Appeals to review the IJ's decision and also asked the BIA to exercise
its own independent authority to grant administrative closure. The BIA upheld the IJ's
decision but did not rule on Gonzalez-Vega's second request, and he appealed. We
affirm the BIA's affirmance of the IJ's determination, but we remand the case to the
BIA to rule on his request for administrative closure.
Gonzalez-Vega is a Mexican citizen who entered the United States in 2004
without authorization. The Department of Homeland Security initiated removal
proceedings in 2012, asserting that he was removable as an alien who was present in
the country without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i).
Gonzalez-Vega conceded that he was removable.
Being ineligible for more prosaic forms of relief from removal like asylum or
cancellation of removal, Gonzalez-Vega requested administrative closure from the
IJ. When an IJ or the BIA grants administrative closure, the alien's removal
proceedings are temporarily removed from the IJ's calendar or from the BIA's docket,
and no judgment on the merits is entered. Hernandez v. Holder, 606 F.3d 900, 904
(8th Cir. 2010). The case is simply on hold. The IJ and BIA use this procedural
convenience to control the immigration docket. Administrative closure may be
appropriate, for instance, in anticipation of an event relevant to the immigration
proceedings that the parties cannot control and that may not occur soon. In re
Avetisyan, 25 I. & N. Dec. 688, 692 (BIA 2012).
In support of his request, Gonzalez-Vega explained that his wife had given
birth to his son in the United States in January, 2014, and that this son could sponsor
a visa petition on Gonzalez-Vega's behalf once the son turned 21. He also maintained
that the son would suffer extreme hardship without Gonzalez-Vega's paternal care
and financial support; that potential future changes in law and executive policy could
make his removal a lower administrative priority than the removal of other aliens; that
his continued presence in the United States would allow him to support two other
sons living in Mexico; that he has strong ties to the community; that Mexico is too
dangerous to live in; and that he has an inconsequential criminal record. The IJ denied
Gonzalez-Vega's request for administrative closure, emphasizing that his infant son
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would not turn 21 within a reasonable time, and the lack of a pending visa application
made the anticipated duration of closure indefinite.
We first consider whether we have jurisdiction. We held in Hernandez that we
lack jurisdiction to review the denial of a motion for administrative closure because
there was no meaningful standard by which to review that decision. Gonzalez-Vega
maintains that the BIA supplied the missing standard after Hernandez when it
promulgated the following non-exclusive considerations that an IJ and the BIA
should contemplate when confronted with an administrative-closure request: the
reason administrative closure is sought, the reason administrative closure is opposed,
the likelihood the other action being pursued outside of removal proceedings will
succeed, the anticipated duration of the closure, the responsibility of either party in
contributing to any current or anticipated delay, and the ultimate outcome of the
removal proceeding once it recommences. See Avetisyan, 25 I. & N. Dec. at 696.
The government argues that we reaffirmed our holding in Hernandez that
denials of motions for administrative closure are unreviewable when we decided
Diallo v. Holder, 715 F.3d 714, 716 (8th Cir. 2013) over a year after the BIA decided
Avetisyan, meaning that Diallo requires us to reject Gonzalez-Vega's argument. But
nothing in Diallo indicates that we considered Avetisyan's potential effect on
Hernandez; indeed, the court never even mentions Avetisyan nor did the parties raise
the point. "[W]e are generally not bound by a prior panel's implicit resolution of an
issue that was neither raised by the parties nor discussed by the panel." Streu v.
Dormire, 557 F.3d 960, 964 (8th Cir. 2009).
We agree with Gonzalez-Vega that the BIA in Avetisyan supplied a useable
standard for reviewing denials of motions for administrative closure. Balancing
considerations is a common, workaday judicial function, even if in a given case the
balancing can be difficult. We therefore join the other circuits that have held that
circuit courts have jurisdiction to review denials of motions for administrative
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closure, assuming, of course, that other judicial prerequisites (like finality) are
satisfied. See Duruji v. Lynch, 630 F. App'x 589, 592 (6th Cir. 2015) (unpublished);
Santos-Amaya v. Holder, 544 F. App'x 209, 209 (4th Cir. 2013) (unpublished per
curiam).
We review the denial of a motion for administrative closure for abuse of
discretion. See Santos-Amaya, 544 F. App'x at 209. The BIA abuses its discretion
when it makes a decision "without rational explanation, departs from established
policies, invidiously discriminates against a particular race or group, or where the
agency fails to consider all factors presented by the alien or distorts important aspects
of the claim." Habchy v. Filip, 552 F.3d 911, 913 (8th Cir. 2009). The BIA must
consider the issues raised and decide in terms sufficient to allow us "to perceive that
it has heard and thought and not merely reacted." Omondi v. Holder, 674 F.3d 793,
800 (8th Cir. 2012).
Since the BIA essentially adopted the IJ's reasoning on this point, we review
the IJ's decision. See Garcia-Gonzalez v. Holder, 737 F.3d 498, 500 (8th Cir. 2013).
We discern no abuse of discretion here. The IJ explained that the Avetisyan
considerations govern and proceeded to hold that the two-decade closure period
weighed heavily against closure, and we agree. The possibility of a successful visa
petition was too remote: No application was pending, nor could one be for almost 21
years. That the IJ weighed some considerations, like the anticipated duration of the
closure, more heavily than Gonzalez-Vega would prefer does not mean that the IJ
abused its discretion. Nor does an IJ have to recite the considerations mechanically
when applying them to the facts. We require only that it be clear from the record that
the IJ had the appropriate considerations in mind and committed no clear error of
judgment in weighing them. We are convinced that the IJ had the Avetisyan
considerations firmly in mind here and committed no clear error of judgment in
weighing them: She recited each of them and referred to Avetisyan several times in
her analysis. We also conclude that the IJ did not abuse its discretion by being
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unmoved by Gonzalez-Vega's arguments in favor of administrative closure, so we
affirm on this point.
Gonzalez-Vega also argues that the BIA abused its discretion by failing to
address his request that it exercise its independent authority to grant administrative
closure. Although the BIA need not write an exegesis on every contention a movant
advances, it must give an explanation specific enough that we can discern and
evaluate its reasoning. Omondi, 674 F.3d at 800. Our reading of the BIA's opinion
reveals that it focuses only on the IJ's decision: Nowhere does the BIA allude to
Gonzalez-Vega's request that it exercise its independent authority. The government
maintains that the BIA implicitly rejected the request for administrative closure
because it considered an argument about imminent immigration reform that
Gonzalez-Vega did not advance before the IJ. Gonzalez-Vega correctly points out,
however, that he made this argument to the IJ and that he broached the subject to the
BIA to support his contention that the IJ erred. So it is unclear to us whether the BIA
heard and thought about Gonzalez-Vega's alternative request. We therefore remand
the matter to the BIA to consider whether Gonzalez-Vega's request "warrants a
favorable exercise of the BIA's discretion." See Clifton v. Holder, 598 F.3d 486, 494
(8th Cir. 2010).
Affirmed in part and remanded in part.
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