Garcia-DeLeon v. Garland

Decision Date04 June 2021
Docket NumberNo. 20-3957,20-3957
Citation999 F.3d 986
Parties Carlos Alfonso GARCIA-DELEON, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
CourtU.S. Court of Appeals — Sixth Circuit

ON BRIEF: David E. Funke, DAVID FUNKE IMMIGRATION LAW GROUP, Louisville, Kentucky, for Petitioner. Yanal H. Yousef, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Cynthia M. Nunez, WALKER & ASSOCIATES OF MICHIGAN, P.C., Detroit, Michigan, for Amicus Curiae American Immigration Lawyers Association.

Before: MOORE, CLAY, and STRANCH, Circuit Judges.

Carlos Alfonso Garcia-DeLeon petitions this court for review of the decision of the Board of Immigration Appeals ("BIA") denying his motion for administrative closure. For the following reasons, we GRANT the petition for review, VACATE the BIA's order, and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

Carlos Alfonso Garcia-DeLeon ("Garcia") is a native and citizen of Mexico who entered the United States without inspection in October 2000. Administrative Record ("A.R.") at 285 (Appl. for Cancellation of Removal at 2). On July 7, 2011, the Department of Homeland Security ("DHS") served Garcia with a Notice to Appear and placed him in removal proceedings. Id. at 338–39 (Notice to Appear).

At a hearing on July 2, 2012, Garcia's counsel admitted the factual allegations in the notice to appear and conceded that Garcia was removable. Id. at 95 (07/02/12 Hr'g Tr. at 2). At that hearing, Garcia also declared his intention to apply for Cancellation of Removal, a form of discretionary relief available to noncitizens who have been present in the United States for at least ten years, who have demonstrated good moral character, who have not been convicted of certain offenses, and whose departure would cause exceptional and extremely unusual hardship to their U.S. citizen relatives, 8 U.S.C. § 1229b(b)(1). Id. at 96 (07/02/12 Hr'g Tr. at 3). He requested voluntary departure in the alternative. Id. Garcia submitted his application for Cancellation of Removal in July 2013. Id. at 284–92 (Appl. for Cancellation of Removal). On August 8, 2018, while his removal proceedings were pending, Garcia married a U.S. citizen, id. at 235 (Certificate of Marriage), who filed an I-130 Petition for Alien Relative on Garcia's behalf, id. at 216–33 (Pet. for Alien Relative).

At the merits hearing before the immigration judge ("IJ"), Garcia requested a continuance pending adjudication of his I-130 petition. Id. at 117 (08/13/18 Hr'g Tr. at 20). The IJ denied the motion for a continuance because Garcia's immigration case had been pending for seven years and should be resolved promptly. Id. at 117–18 (08/13/18 Hr'g Tr. at 20–21). Further, the IJ noted that even if U.S. Citizenship and Immigration Services ("USCIS") approved his I-130 petition, Garcia would have to leave the United States and be processed at the American consulate in Mexico to get a green card. Id. at 206 (08/13/18 Hr'g Tr. at 109). Turning to the merits of his immigration case, the IJ found Garcia ineligible for Cancellation of Removal because he had not met his burden of establishing ten years of continuous presence in the United States nor had he shown that his removal would cause exceptional and extremely unusual hardship for his qualifying relatives. Id. at 206–09 (08/13/18 Hr'g Tr. at 109–12). The IJ, however, granted Garcia's request for voluntary departure. Id. at 209 (08/13/18 Hr'g Tr. at 112).

Garcia filed a notice of appeal with the BIA. Id. at 64–72 (Notice of Appeal). While his appeal was pending, USCIS determined by clear and convincing evidence that he did not enter the marriage for the purpose of evading immigration law, 8 U.S.C. § 1255(e)(3), and approved his I-130 petition, A.R. at 15 (Approval Notice).

Despite the approval of his I-130 petition, Garcia still must clear a series of hurdles before he can become a permanent resident. Noncitizens who entered the United States without inspection, like Garcia, must travel to a United States consulate abroad to apply for an immigrant visa. Cf. 8 C.F.R. § 245.1(b)(3) (providing that noncitizens are ineligible for adjustment of status to lawful permanent residence in the United States if they were "not admitted or paroled following inspection by an immigration officer"). The catch, however, is that by leaving the United States, noncitizens who have been unlawfully present in the United States for more than one year become inadmissible to the United States for ten years from the date of departure. See 8 U.S.C. § 1182(a)(9)(B)(i)(II). To sidestep this ten-year bar due to previous unlawful presence, noncitizens seeking permanent residency first must travel abroad for consulate processing, and then, if the consular officer finds that the noncitizen is inadmissible, submit an I-601, Application for a Waiver of Inadmissibility. See 8 U.S.C. § 1182(a)(9)(B)(v) (permitting the Attorney General to waive this bar on admission for immigrants who are the spouse of a U.S. citizen if refusal of admission would result in "extreme hardship" to the U.S. citizen spouse). USCIS, however, could take over a year to process the waiver of inadmissibility, during which a noncitizen remains abroad and is separated from their U.S. citizen relatives. Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed. Reg. 536 (Jan. 3, 2013). To reduce the time that applicants for the waiver are separated from their U.S. citizen relatives, USCIS amended its regulations in 2013 to permit applicants to apply for a provisional unlawful presence waiver while in the United States and prior to departing the United States for their consulate interview. Id.

This workaround did not extend to noncitizens in removal proceedings, "unless the removal proceedings are administratively closed and have not been recalendared at the time of filing the application for a provisional unlawful presence waiver." 8 C.F.R. § 212.7(e)(4)(iii) (emphasis added). Until recently, a noncitizen in removal proceedings, like Garcia, who sought to apply for a provisional unlawful presence waiver would request that the IJ administratively close their proceedings, and then, once closed, would apply for the provisional waiver.

Garcia's path to permanent residency already was difficult, but subsequent limits to the availability of administrative closure introduced another impediment. In 2018, then-Attorney General Sessions directed the BIA to refer a recent BIA decision to himself for further review pursuant to 8 C.F.R. § 1003.1(h)(1)(i). In his decision, Matter of Castro-Tum , 27 I. & N. Dec. 271 (A.G. 2018), the Attorney General held that immigration judges and the BIA did not have general authority to grant administrative closure.

On May 10, 2020, Garcia filed a supplemental motion with the BIA stating that USCIS had approved his I-130 petition and requesting that the BIA administratively close his proceedings or, in the alternative, remand his case to the IJ with instructions for administrative closure so that he could apply for a provisional unlawful presence waiver. A.R. at 7–44 (Garcia's Mot. to Remand). The BIA, relying on Castro-Tum , denied Garcia's request for administrative closure. Id. at 4–5 (BIA Decision at 2–3). The BIA also concluded that the IJ had not abused its discretion in denying his application for Cancellation of Removal or request for a continuance. Id. at 3–4 (BIA Decision at 1–2). Garcia does not challenge in this appeal the IJ's denial of a continuance nor the denial of Cancellation of Removal.

Garcia timely petitioned this court for review. We have jurisdiction to review the BIA's decision under 8 U.S.C. § 1252(a)(5).

II. ANALYSIS

On appeal, Garcia argues that IJs and the BIA have authority under 8 C.F.R. § 212.7(e)(4)(iii) to grant administrative closure for the limited purpose of permitting noncitizens to apply for a provisional unlawful presence waiver. We conclude that 8 C.F.R. § 212.7(e)(4)(iii), in conjunction with 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii), gives IJs and the BIA the authority for administrative closure to permit noncitizens to apply for and receive provisional unlawful presence waivers.

For at least three decades, immigration judges and the BIA regularly administratively closed cases. See, e.g. , Memorandum from William R. Robie, Chief Immigration Judge, Exec. Off. for Immigr. Rev., to All Immigration Judges 1 (Mar. 7, 1984), https://www.justice.gov/sites/default/files/eoir/legacy/2001/09/26/84-2.pdf (providing that if a noncitizen fails to appear at a hearing, the immigration judge may "order that the case be administratively closed with no further action to be taken"); Matter of Amico , 19 I. & N. Dec. 652, 653 (BIA 1988) (referencing administrative closure). In Matter of Avetisyan , 25 I. & N. Dec. 688 (BIA 2012), the BIA explicitly grounded IJs’ and the BIA's administrative closure power in their ability under 8 C.F.R. § 1003.10(b) and 8 C.F.R. § 1003.1(d)(1)(ii), respectively, "to take any action necessary and appropriate for the disposition of the case."1 Id. at 693. As an example of when administrative closure may be appropriate and necessary for the disposition of a case, the BIA pointed to when a noncitizen "demonstrates that he or she is the beneficiary of an approved visa petition filed by a lawful permanent resident spouse who is actively pursuing, but has not yet completed, an application for naturalization." Id. at 696. In 2017, the BIA clarified that "the primary consideration for an Immigration Judge in determining whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits." Matter of W-Y-U- , 27 I. & N. Dec. 17, 20 (BIA 2017).

Then, in 2018, then-Attorney General Sessions concluded in Matter of Castro-Tum , 27 I. & N. Dec. 271 (A.G. 2018), that immigration judges and the...

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7 cases
  • Gonzalez v. Garland
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 20 Octubre 2021
    ...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) c......
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    • 16 Septiembre 2021
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    ...... used to temporarily pause removal proceedings." Matter of W-Y-U-, 27 I&N Dec. 17, 18 (BIA 2017) ; see also Garcia-DeLeon v. Garland, 999 F.3d 986, 989 (6th Cir. 2021) ("For at least three decades, [IJs] and the BIA regularly administratively closed cases.").3 "Because Castro-Tum departe......
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    • U.S. DOJ Board of Immigration Appeals
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