Sanchez v. Attorney Gen. U.S.

• Decision Date: 05 May 2021
• Docket Number: No: 20-1843,: 20-1843
• Citation: 997 F.3d 113
• Parties: Abner Antonio ARCOS SANCHEZ, a/k/a Abner Arcos, a/k/a Abner Sanchez, a/k/a Abner A. Snachez-Acros, a/k/a Abner Antonio Acros-Sanchez, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA
• Court: U.S. Court of Appeals — Third Circuit

997 F.3d 113

Abner Antonio ARCOS SANCHEZ, a/k/a Abner Arcos, a/k/a Abner Sanchez, a/k/a Abner A. Snachez-Acros, a/k/a Abner Antonio Acros-Sanchez, Petitioner

v.ATTORNEY GENERAL UNITED STATES OF AMERICA

No: 20-1843

United States Court of Appeals, Third Circuit.

Argued: January 26, 2021

Filed: May 5, 2021

OPINION OF THE COURT

HORAN, District Judge.

Abner Antonio Arcos Sanchez petitions for review of the Board of Immigration Appeals’ ("Board") decision dismissing his appeal of an Immigration Judge's ("IJ") denial of his application for asylum, withholding of removal under 8 U.S.C. § 1231(b)(3), and withholding of removal under the Convention Against Torture ("CAT"). The Board also denied Arcos Sanchez's request for remand to the IJ for administrative closure, which would have given time for renewal of his Deferred Action for Childhood Arrivals ("DACA") status. On this latter issue, the Board cited then Attorney General Sessions’ decision in Matter of Castro-Tum , 27 I. & N. Dec. 271 (A.G. 2018). The Board determined that the IJ and the Board did not have authority to administratively close proceedings, unless a regulation or a previous judicially approved settlement expressly authorizes such an action" as set forth in Castro-Tum . A.R. 4. As such, remand for consideration of administrative closure, while Arcos Sanchez pursued DACA status renewal, was denied. For the reasons we discuss below, we grant Arcos Sanchez's petition for review, vacate the Board's decision, and remand for proceedings consistent with this opinion.

I. Facts and Procedural History

In 2002, at the age of seven, Arcos Sanchez, a native and citizen of Mexico, entered the United States without inspection. In 2012, he applied for DACA¹ status, which was approved. The Department of Homeland Security periodically granted his requests for renewals. On April 8, 2019, Arcos Sanchez was arrested and charged in New Jersey with sexual assault and endangering the welfare of a child. On May 17, 2019, based upon that arrest and those charges, the United States Citizenship and Immigration Services ("USCIS") revoked Arcos Sanchez's DACA status. In June 2019, the Department of Homeland Security took Arcos Sanchez into custody, served him with a Notice to Appear, and charged him as being present without having been admitted or paroled. See 8 U.S.C. § 1182(a)(9)(B)(ii).

In removal proceedings before the IJ, Arcos Sanchez applied for asylum, withholding of removal, and for relief under CAT. The IJ denied asylum, finding that Arcos Sanchez failed to meet the one-year filing deadline or show extraordinary circumstances in the delay. The IJ denied withholding of removal, finding the proposed social group was not cognizable. Finally, the IJ denied his CAT claim, finding he did not demonstrate at least a fifty percent chance he would be tortured upon his return to Mexico. On November 6, 2019, the IJ issued his decision and ordered Arcos Sanchez's removal to Mexico. Two weeks later, his state criminal charges were dismissed.

On appeal to the Board, Arcos Sanchez challenged the IJ's decision and requested the Board remand his case to the IJ for consideration of administrative closure. He argued that, because the state criminal charges were dismissed, he was "eligible for renewal of his DACA and re-filed with UCIS on January 28, 2020[,]" which would impact the disposition of his removal proceeding. A.R. 26. The Board denied remand, citing the binding precedent of then-Attorney General Sessions’ Castro-Tum decision, which held that, under the regulations governing the Executive Office of Immigration Review, IJs and the Board do not have the general authority to indefinitely suspend immigration proceedings by administrative closure. The Board found that, since Arcos Sanchez did not show that his request for remand for administrative closure fell within the express exceptions under Castro-Tum , his case could not be administratively closed. 27 I. & N. Dec. at 283.² Arcos-Sanchez petitioned for review of the Board's decision.

II. Jurisdiction

We have jurisdiction to review petitions under 8 U.S.C. § 1252(a). We review legal conclusions of the Board de novo, subject to established rules of deference. Da Silva v. Att'y Gen. of the U.S. , 948 F.3d 629, 633 (3d Cir. 2020). Here, we are presented with the question whether then Attorney General Sessions’ Castro-Tum decision properly concluded that 8 C.F.R. §§ 1003.1(d)(1)(ii) and 1003.10(b) unambiguously do not grant IJs and the Board the general authority to administratively close cases. The Board denied Arcos Sanchez's remand request based on the Attorney General's conclusion that there is no such general authority. Arcos Sanchez challenges the Board's reliance on that conclusion, which we will review de novo. See Da Silva, 948 F.3d at 633.

III. History of Administrative Closure

A. Pre Castro-Tum

Since at least the 1980s, IJs and the Board have utilized administrative closure as a docketing tool to remove cases from their active dockets 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) ("The 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."). Administrative closure allows an IJ or the Board to "temporarily pause removal proceedings" and place the case on hold because of a pending alternative resolution or because events outside the control of either party may affect the case. Matter of W-Y-U- , 27 I. & N. Dec. 17, 18 (B.I.A. 2017).

Even though IJs and the Board have used general administrative closure for almost three decades, the Immigration and Naturalization Act ("INA") and the regulations governing IJs or the Board do not expressly authorize the practice. See Vahora v. Holder , 626 F.3d 907, 917-18 (7th Cir. 2010) (noting that the general power to administratively close a case is employed by quasi-judicial bodies for "orderly management of the docket" and is reviewable by courts). Although the INA and its regulations do not specifically reference general administrative closure authority, the regulations both explicitly and implicitly confer broad powers on IJs and the Board to manage their dockets. As regards IJs’ authority, 8 C.F.R. § 1003.10(b) concerns their "powers and duties" and states in relevant 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). In addition, 8 C.F.R. § 1240.1(a)(iv) provides that IJs shall have the authority in any removal proceeding to "take any other action consistent with applicable law and regulations as may be appropriate." As regards the Board's authority, 8 C.F.R. § 1003.1(d)(1)(ii) states that Board members:

shall exercise their independent judgment and discretion in considering and determining the cases coming before the Board, and 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).

Aside from regulations, Board decisions have also recognized the authority for IJs and the Board to administratively close cases, at first only if it was not "opposed by either of the parties." Matter of Gutierrez-Lopez , 21 I. & N. Dec. at 479. In Matter of Avetisyan , the Board endorsed the administrative closure practice and held that both 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) empower IJs and the Board to "take any action...as is appropriate and necessary for the disposition of [a] case." 25 I. & N. Dec. 688, 691 (B.I.A. 2012). The Board applied a six-factor test to determine whether administrative closure was appropriate, regardless of government opposition. See Avetisyan , 25 I. & N. Dec. at 696. It explained that, "[d]uring the course of proceedings, an [IJ] or the [Board] 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. The Board described two mechanisms to defer action: continuance and administrative closure. "[A] continuance 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. However, the Board observed in Avetisyan that when the parties must "await an action or event that is relevant to immigration proceedings but is outside the control of the parties or the court and may not occur for a significant or undetermined period of time," removing a case from the docket via administrative closure may be "appropriate." Id. at 692.

In addition, as described by the Board, administrative closure can facilitate "efficient management of the resources of the immigration courts and the Board." Id. at 695 ; see also Gonzalez-Caraveo v. Sessions , 882 F.3d 885, 889-90 (9th Cir. 2018) (citing Matter of Avetisyan as authority for administrative closure). Under this framework, the Board has issued decisions recognizing the authority for IJs to administratively close cases for many reasons related to the interests of...