Hernandez-Serrano v. Barr

• Decision Date: 24 November 2020
• Docket Number: No. 20-3175,20-3175
• Citation: 981 F.3d 459
• Parties: Roberto Isaac HERNANDEZ-SERRANO, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

981 F.3d 459

Roberto Isaac HERNANDEZ-SERRANO, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 20-3175

United States Court of Appeals, Sixth Circuit.

Argued: October 21, 2020

Decided and Filed: November 24, 2020

KETHLEDGE, Circuit Judge.

A regulation delegating to immigration judges authority to take certain actions "[i]n deciding the individual cases before them" does not delegate to them general authority not to decide those cases at all. Yet in more than 400,000 cases in which an alien was charged with being subject to deportation or (after April 1, 1997) removal, immigration judges or the Board of Immigration Appeals have invoked such a regulation to close cases administratively—meaning the case was removed from the IJ's docket without further proceedings absent some persuasive reason to reopen it. As of October 2018, more than 350,000 of those cases had not been reopened. An adjudicatory default on that scale strikes directly at the rule of law.

In May 2018 the Attorney General formally interpreted the regulations relevant here not to provide "general authority" for administrative closure in immigration cases. Petitioner Roberto Hernandez-Serrano now challenges that interpretation, arguing that the immigration judge in his case should have had general authority to close it administratively. We reject that argument and deny the petition.

I.

Hernandez-Serrano entered the United States without inspection in September 2015, when he was 16 years old. He was promptly placed in removal proceedings before an immigration judge (IJ). A year later, a juvenile court in Tennessee made findings that rendered Hernandez-Serrano potentially eligible for "Special Immigrant Juvenile" status. See 8 U.S.C. § 1101(a)(27)(J). Hernandez-Serrano submitted to the United States Citizenship and Immigration Services (CIS) an application for that status, which, if granted, would allow Hernandez-Serrano to petition for status as a lawful permanent resident. See 8 U.S.C. § 1255(h). In June 2017, Hernandez-Serrano moved for administrative closure of his removal case until CIS made a decision as to his application for Special Immigrant Juvenile status. (Unexplained on this record is why he did not seek a simple continuance instead.) The IJ denied that motion on the apparent ground that, even if Hernandez-Serrano were granted that status, he would remain on a waiting list for consideration of a follow-on petition for status as a lawful permanent resident. In April 2018, the IJ denied other forms of relief and ordered Hernandez-Serrano removed to El Salvador.

Hernandez-Serrano filed an appeal with the Board of Immigration Appeals. Three weeks later, CIS granted his application for Special Immigrant Juvenile status. On that ground, Hernandez-Serrano moved to remand his case to the IJ. In his merits brief to the Board, Hernandez-Serrano challenged only the IJ's denial of his motion for administrative closure, arguing that he was "very close to being able to adjust status." The Board dismissed Hernandez-Serrano's appeal and denied his motion to remand, holding that the IJ lacked authority to close Hernandez-Serrano's case administratively under the relevant regulations as interpreted in the Attorney General's decision in Matter of Castro-Tum , 27 I. & N. Dec. 271 (U.S.A.G. 2018). This petition followed.

II.

The Board applied Castro-Tum as binding precedent in dismissing Hernandez-Serrano's appeal. The question presented here is thus one of law, namely whether the Attorney General correctly interpreted 8 C.F.R. §§ 1003.10 and 1003.1(d) when holding, in Castro-Tum , that "immigration judges and the Board do not have the general authority to suspend indefinitely immigration proceedings by administrative closure." Id. at 271. We review that question de novo. See Ruiz-Del-Cid v. Holder , 765 F.3d 635, 639 (6th Cir. 2014). In doing so, we construe the regulations as we would any text, and consider deferring to the agency's interpretation only if a regulation remains genuinely ambiguous after exhausting "all the traditional tools of construction." Kisor v. Wilkie , ––– U.S. ––––, 139 S.Ct. 2400, 2415, 204 L.Ed.2d 841 (2019) (internal quotation marks omitted). (That this case concerns review of the Executive's interpretation of a regulation, as opposed to review of an agency's rulemaking procedures, means that the Attorney General's reliance in his briefing here upon the Supreme Court's decision in Vermont Yankee is completely inapposite. See 435 U.S. 519, 529, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978).)

A.

Immigration judges "exercise the powers and duties delegated to them by the [Immigration and Nationality] Act and by the Attorney General through regulation." 8 C.F.R. § 1003.10(b). Members of the Board likewise "act as the Attorney General's delegates in the cases that come before them." Id . § 1003.1(a)(1). Here, everyone agrees that the Act itself does not grant IJs or the Board any authority to close cases administratively. Nor, everyone agrees, do the relevant regulations grant IJs or the Board any such general authority expressly. Hence the question is whether the relevant regulations do so impliedly.

The relevant delegation of authority to IJs is set forth in 8 C.F.R. § 1003.10(b), which provides in relevant part: "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." This same provision also provides that, "[i]n 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 . (emphasis added). Section 1003.10(b) thus describes actions IJs may take "[i]n deciding the individual cases before them"; and relatedly those actions must be "appropriate and necessary for the disposition of such cases." Id . (emphasis added). The relevant delegation of authority to the Board is nearly identical. See 8 C.F.R. § 1003.1(d)(1)(ii).

1.

Administrative closure is a device "created for the convenience of the Immigration Courts and the Board." Matter of Avetisyan , 25 I. & N. Dec. 688, 690 (BIA 2012) ; see also Romero v. Barr , 937 F.3d 282, 286-87 (4th Cir. 2019) ("administrative closure is a procedural mechanism primarily employed for the convenience" of IJs and the Board). The effect of administrative closure is to "remove a case from an Immigration Judge's active calendar or from the Board's docket." Avetisyan , 25 I. & N. Dec. at 692. Under the Board's precedent when the Attorney General decided Castro-Tum , the principal factor in determining whether to grant administrative closure was "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) (emphasis added). That party was typically the Department of Homeland Security (DHS)—the executive agency that prosecutes immigration cases—since, "as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States." I.N.S. v. Doherty , 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). And after a case was administratively closed, a party seeking to place it back on the IJ's active calendar likewise bore the burden of showing a "persuasive reason" to do so. W-Y-U- , 27 I. & N. Dec. at 20.

Unsurprisingly, then, "[a]lthough described as a temporary suspension" of removal proceedings, "administrative closure is effectively permanent in most instances." Castro-Tum , 27 I. & N. Dec. at 272. According to the Executive Office of Immigration Review, from fiscal year 1980 to fiscal year 2011, "283,366 cases were administratively closed." Id . at 273. The practice's usage accelerated during fiscal years 2012-2017, when another 215,285 cases were administratively closed. Id . By the end of fiscal year 2017, "some 355,835 administratively closed cases had yet to be recalendared." Id . at 293 ; see also Romero , 937 F.3d at 289 ("as of October 2018, over 330,000 cases remained administratively closed").

2.

The result of administrative closure, as described above, is that immigration cases leave an IJ's active calendar and, more often than not, never come back. Thus the reality is that, in hundreds of thousands of cases, administrative closure has amounted to a decision not to apply the Nation's immigration laws at all. Section 1003.10 hardly provides general authority for such a practice. Administrative closure typically is not an action taken "[i]n deciding" a case before an IJ; instead, as shown above, it is typically a decision not to decide the case. Nor is administrative closure typically an action "necessary for the disposition" of an immigration case. Administrative closure is not itself a "disposition" of a case, as Hernandez-Serrano concedes in this appeal. See also Avetisyan , 25 I. & N. Dec. at 695 (acknowledging "the undisputed fact that administrative closure does not result in a final order"). To the contrary, as the Attorney General has correctly observed, "[a]dministrative closure in fact is the antithesis of a final disposition"—because the practice by design prevents the IJ from making any disposition in the case. Castro-Tum , 27 I. & N. Dec. at 285. That § 1003.10(b) in its next breath admonishes IJs, "in all cases, " to "resolve the questions before them in a timely" manner only underscores the absence of any general authority in that same regulation to set aside those cases indefinitely. True, as Hernandez-Serrano points out, the "timely manner" language is hortatory, and the admonition speaks to the resolution of "questions" rather than the case itself; but the IJ can resolve neither questions nor a case once it is administratively...