Argued: May 8, 2019
Petition for Review of an Order of the Board of Immigration
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.
Georgeanna M. Gardner, GARDNER LAW, PLLC, Raleigh, North
Carolina, for Petitioner.
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
AGEE, FLOYD, and THACKER, Circuit Judges.
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.
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-130 filed by his wife, who was then a lawful
permanent resident ("LPR").
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-601A 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 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.
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.
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
timely petitioned for review with this Court, and we have
jurisdiction pursuant to 8 U.S.C. §
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 may reactivate the case by filing a
motion to re-calendar.
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). However, administrative closure is
explicitly authorized or required by federal regulations
addressing specific classes of potential visa
recipients 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).
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 ...