937 F.3d 282 (4th Cir. 2019), 18-1850, Romero v. Barr

Docket Nº18-1850
Citation937 F.3d 282
Opinion JudgeAGEE, Circuit Judge:
Party NameJesus Humberto Zuniga ROMERO, Petitioner, v. William P. BARR, Attorney General, Respondent.
AttorneyBenjamin Ross Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Rebecca Hoffberg Phillips, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Georgeanna M. Gardner, GARDNER LAW, PLLC, Raleigh, North Carolina, for Petitioner. Joseph H. H...
Judge PanelBefore AGEE, FLOYD, and THACKER, Circuit Judges.
Case DateAugust 29, 2019
CourtUnited States Courts of Appeals, United States Court of Appeals (4th Circuit)

Page 282

937 F.3d 282 (4th Cir. 2019)

Jesus Humberto Zuniga ROMERO, Petitioner,

v.

William P. BARR, Attorney General, Respondent.

No. 18-1850

United States Court of Appeals, Fourth Circuit

August 29, 2019

Argued: May 8, 2019

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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On Petition for Review of an Order of the Board of Immigration Appeals.

ARGUED:

Benjamin Ross Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner.

Rebecca Hoffberg Phillips, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

ON BRIEF:

Georgeanna M. Gardner, GARDNER LAW, PLLC, Raleigh, North Carolina, for Petitioner.

Joseph H. Hunt, Assistant Attorney General, John S. Hogan, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before AGEE, FLOYD, and THACKER, Circuit Judges.

OPINION

Petition for review granted by published opinion.

Judge Agee wrote the opinion, in which Judge Floyd and Judge Thacker joined.

AGEE, Circuit Judge:

Page 286

After an immigration judge ("IJ") denied Jesus Zuniga Romero’s request for administrative closure of his case— which would have removed it from the IJ’s active docket pending the completion of a separate immigration proceeding— Romero petitioned the Board of Immigration Appeals ("BIA") for review. Although the BIA initially sustained Romero’s appeal and administratively closed his case, it later dismissed the appeal after a precedential decision issued by the Attorney General in Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018). In Castro-Tum, the Attorney General concluded that IJs and the BIA do not have the general authority to administratively close cases. Romero now brings a petition for review of the BIA’s decision to this Court. For the reasons we discuss below, we grant Romero’s petition for review, vacate the BIA’s decision, and remand for proceedings consistent with this opinion.

I.

In 2013, the Department of Homeland Security ("DHS") commenced removal proceedings against Romero, a citizen of Honduras, for being present in the United States without being admitted or paroled. See 8 U.S.C. § 1182(a)(9)(B)(ii). Although Romero accepted a grant of voluntary departure at a hearing before an IJ in 2014, he subsequently sought and received reopening of his case after the IJ determined that Romero was the beneficiary of a pending Form I-1301 filed by his wife, who was then a lawful permanent resident ("LPR").

After the I-130 had been approved, Romero filed a motion for administrative closure, advising that his wife had since become a naturalized U.S. citizen and that he wished to file a Form I-601A2 for a provisional unlawful presence waiver. In order to file the Form, the removal proceedings had to be administratively closed. See 8 C.F.R. § 212.7(e)(4)(iii). As discussed further below, administrative closure is a

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procedural mechanism primarily employed for the convenience of the adjudicator (namely, IJs and the BIA) in order to allow cases to be removed from the active dockets of immigration courts, often so that individuals can pursue alternate immigration remedies— such as, in Romero’s case, pursuing a provisional unlawful presence waiver. Romero advised that if his case were administratively closed, then once the waiver had been approved, he intended to move to re-calendar and terminate removal proceedings so that he could then go through the consular process in Honduras.

At the final hearing in March 2017, the IJ ultimately denied Romero’s motion for administrative closure on the basis that he did not satisfy any of the factors outlined in Matter of Avetisyan, 25 I. & N. Dec. 688 (B.I.A. 2012). Romero appealed to the BIA, which sustained his appeal, concluding in part that he had met "several if not all" of the Avetisyan factors. A.R. 21. The BIA then administratively closed Romero’s case.

In December 2017, DHS filed a motion to reconsider. While that motion was pending, the Attorney General issued a precedential decision in Matter of Castro-Tum concluding that no statute or regulation grants IJs or the BIA the general authority to administratively close proceedings. Further, the Attorney General held that IJs and the BIA may only administratively close cases in situations where a specific regulation or judicially-approved settlement expressly authorizes such action. In June 2018, the BIA granted DHS’ motion, concluding that Castro-Tum represented "a significant change in the law" and that it precluded the BIA from exercising any general administrative closure authority. A.R. 3. The BIA then dismissed Romero’s appeal and ordered him removed to Honduras.

Romero timely petitioned for review with this Court, and we have jurisdiction pursuant to 8 U.S.C. § 1252(a)(5).[3]

II.

To set the context for our analysis of the merits of the parties’ arguments, we note that administrative closure is a docketing tool that has been used by IJs and the BIA since at least the late 1980s. Administrative closure allows the adjudicator to temporarily remove a case from the active docket as a matter of "administrative convenience." In re Gutierrez-Lopez, 21 I. & N. Dec. 479, 480 (B.I.A. 1996) (internal quotation marks omitted); see also

Matter of Amico, 19 I. & N. Dec. 652, 654 n.1 (B.I.A. 1988) (noting that "[t]he administrative closing of a case does not result in a final order," but "is merely an administrative convenience which allows the removal of cases from the calendar in appropriate situations"). By administratively closing a case, an IJ or the BIA "temporarily pause[s] removal proceedings" and places the case on hold, generally because there is an alternate form of case resolution pending, or because the case may be affected by events outside of the control of either party or that may not occur for some time. Matter of W-Y-U-, 27 I. & N. Dec. 17, 18 (B.I.A. 2017). After the case is administratively closed, either party

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may reactivate the case by filing a motion to re-calendar.

General administrative closure is not specifically authorized by the INA or the regulations governing IJs or the BIA. See

Vahora v. Holder, 626 F.3d 907, 917-18 (7th Cir. 2010) (noting that the general power to administratively close a case is "not a practice specified in the [INA]" or "mentioned in the current regulations," but is a "procedural device" employed by quasi-judicial bodies for "orderly management of the docket" and reviewable by courts).4 However, administrative closure is explicitly authorized or required by federal regulations addressing specific classes of potential visa recipients5 and pursuant to various judicially-approved settlement agreements. See, e.g., Barahona-Gomez v. Ashcroft, 243 F.Supp.2d 1029 (N.D. Cal. 2002) (requiring administrative closure for aliens who were improperly denied suspension of deportation but failed to appear for rescheduled hearings); Am. Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D. Cal. 1991) (requiring administrative closure for class members pending adjudication of claims by an asylum officer).

Although general administrative closure is not specifically mentioned in the INA or its regulations, the BIA has referenced two regulations that confer broad powers to IJs and the BIA to manage their dockets as the authority for administrative closure. First, 8 C.F.R. § 1003.10(b), which concerns the "powers and duties" of IJs, states in part: In conducting hearings under section 240 of the Act and such other proceedings the Attorney General may assign to them, immigration judges shall exercise the powers and duties delegated to them by the Act and by the Attorney General through regulation. In deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases. ... In all cases, immigration judges shall seek to resolve the questions before them in a timely and impartial manner consistent with the Act and regulations.

Id. (emphases added); see also 8 C.F.R. § 1240.1(a) (providing that IJs shall have the authority in any removal proceeding to "[d]etermine removability," "make decisions, including orders of removal," "determine applications," "order withholding of removal," and "take any other action consistent with applicable law and regulations as may be appropriate").

Second, 8 C.F.R. § 1003.1(d)(1)(ii), which governs the powers of the BIA, states that BIA members "shall exercise their independent

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judgment and discretion" and that "a panel or Board member to whom a case is assigned may take any action consistent with their authorities under the Act and the regulations as is appropriate and necessary for the disposition of the case." Id. (emphases added).

In Matter of Avetisyan, the BIA cited these two regulations in holding that IJs and the BIA were empowered to "take any action ... as is appropriate and necessary for the disposition of [a] case." 25 I. & N. Dec. at 691. Avetisyan continued, "[d]uring the course of proceedings, an [IJ] or the [BIA] may find it necessary or, in the interests of justice and fairness to the parties, prudent to defer further action for some period of time." Id. One way to do so would be to grant a continuance, which may be "appropriately utilized to await additional action required of the parties that will be, or is expected to be, completed within a reasonably certain and brief amount of time." Id. But when the parties must "await an...

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10 practice notes
  • Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure
    • United States
    • Executive Office For Immigration Review
    • Invalid date
    ...(rejecting Castro-Tum and holding that immigration judges are not precluded from administratively closing cases), and Romero v. Barr, 937 F.3d 282 (4th Cir. 2019) (same). These conflicting decisions, and the possibility of additional such decisions, create uncertainty for immigration judges......
  • Good Cause for a Continuance in Immigration Proceedings
    • United States
    • Executive Office For Immigration Review
    • Invalid date
    ...the Fourth and Seventh Circuits, though it continues to apply to immigration proceedings outside those circuits. See Romero v. Barr, 937 F.3d 282, 292-94 (4th Cir. 2019); Morales v. Barr, 963 F.3d 629, 639-40 (7th Cir. 2020). The Department also recently proposed rulemaking to codify the pr......
  • Executive Defiance and the Deportation State.
    • United States
    • Yale Law Journal Vol. 130 Nbr. 4, February 2021
    • February 1, 2021
    ...in several federal appeals courts. See Morales v. Barr, 963 F.3d 629, 640 (7th Cir. 2020) (refusing to follow Castro-Tum); Romero v. Barr, 937 F.3d 282, 286 (4th Cir. 2019) (vacating (110.) Castro-Tum, 271. & N. Dec. at 284 n.6 (acknowledging the conflict with Baez-Sanchez I). (111.) Ba......
  • A New Auer: Overview and Analysis of the Supreme Court's Decision in Kisor v. Wilkie.
    • United States
    • Case Western Reserve Law Review Vol. 70 Nbr. 1, September 2019
    • September 22, 2019
    ...(E.D. Pa. Aug. 15, 2019); Spencer v. Macado's Inc., No. 6:18-CV-00005, 2019 WL 2931304, at *6 (W.D. Va. July 8, 2019); Romer v. Barr, 937 F.3d 282, 293-94 (4th Cir. 2019); Sierra Club v. Trump, 929 F.3d 670, 693, 700 (9th Cir. (174.) No. 13-CV-1174 (VSB), 2019 WL 4515209. (175.) Id. at *6. ......
  • Request a trial to view additional results
1 cases
  • Marroquin v. Barr, No. 18-2209
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • December 9, 2019
    ......: November 7, 2019December 9, 2019 UNPUBLISHEDOn Petition for Review of an Order of ...See Romero v. Barr, 937 F.3d 282, 294 (4th Cir. 2019) ......
3 firm's commentaries
  • No Unfair Surprises Under Kisor
    • United States
    • LexBlog United States
    • March 11, 2020
    ...do not reflect “fair and considered judgment” of the agency has already received the attention of appellate courts. In Romero v. Barr, 937 F.3d 282, 296 (4th Cir. 2019), for example, the Fourth Circuit found that the Attorney General’s interpretation of regulations governing immigration pro......
  • A New Dawn For Challenges To FDA Actions? Kisor And The Tenuous Vitality Of Administrative Deference
    • United States
    • Mondaq United States
    • November 21, 2019
    ...in the judgment). 25 Id. at 2415. 26 Id. at 2417 (quoting Christopher, 567 U.S. at 155). 27 See, e.g., Romero v. Barr, No. 18-1850, 937 F.3d 282, 292, 295-96 (4th Cir. 2019) (holding that the regulation at issue unambiguously conferred the Board of Immigration Appeals ("BIA") with the autho......
  • A New Dawn for Challenges to FDA Actions? Kisor and the Tenuous Vitality of Administrative Deference
    • United States
    • JD Supra United States
    • November 13, 2019
    ...J., concurring in the judgment). Id. at 2415. Id. at 2417 (quoting Christopher, 567 U.S. at 155). See, e.g., Romero v. Barr, No. 18-1850, 937 F.3d 282, 292, 295-96 (4th Cir. 2019) (holding that the regulation at issue unambiguously conferred the Board of Immigration Appeals (“BIA”) with the......
2 books & journal articles
  • Executive Defiance and the Deportation State.
    • United States
    • Yale Law Journal Vol. 130 Nbr. 4, February 2021
    • February 1, 2021
    ...in several federal appeals courts. See Morales v. Barr, 963 F.3d 629, 640 (7th Cir. 2020) (refusing to follow Castro-Tum); Romero v. Barr, 937 F.3d 282, 286 (4th Cir. 2019) (vacating (110.) Castro-Tum, 271. & N. Dec. at 284 n.6 (acknowledging the conflict with Baez-Sanchez I). (111.) Ba......
  • A New Auer: Overview and Analysis of the Supreme Court's Decision in Kisor v. Wilkie.
    • United States
    • Case Western Reserve Law Review Vol. 70 Nbr. 1, September 2019
    • September 22, 2019
    ...(E.D. Pa. Aug. 15, 2019); Spencer v. Macado's Inc., No. 6:18-CV-00005, 2019 WL 2931304, at *6 (W.D. Va. July 8, 2019); Romer v. Barr, 937 F.3d 282, 293-94 (4th Cir. 2019); Sierra Club v. Trump, 929 F.3d 670, 693, 700 (9th Cir. (174.) No. 13-CV-1174 (VSB), 2019 WL 4515209. (175.) Id. at *6. ......

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