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Immigration Court does not defer to Attorney General’s opinion

Where an opinion issued by the Attorney General, holding that immigration judges and the Board of Immigration Appeals, or BIA, lacks authority to administratively close a case, was contrary to the plain language of the regulations and would upend settled practice, the court refused to defer to the opinion and instead held the immigration judge erred by following the Attorney General’s opinion.

Background

In 2013, the Department of Homeland Security commenced removal proceedings against Jesus Zuniga Romero for being present in the United States without being admitted or paroled. Although Romero accepted a grant of voluntary departure, he subsequently sought and received reopening of his case after the immigration judge determined that Romero was the beneficiary of a pending form I-1301 filed by his wife, who was then a lawful permanent resident.

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. The BIA administratively closed Romero’s case.

DHS filed a motion to reconsider. While that motion was pending, the Attorney General issued a precedential decision in Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018), concluding that no statute or regulation grants immigration judges or the BIA the general authority to administratively close proceedings. Further, the Attorney General held that immigration judges 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. The BIA then dismissed Romero’s appeal and ordered him removed to Honduras.

Analysis

The first question before the court is whether the INA implementing regulations unambiguously provide immigration judges and the BIA with the general authority to administratively close cases. The government argues that neither 8 C.F.R. § 1003.10(b) nor § 1003.1(d)(1)(ii) provides this authority. But Romero points to the expansive language in those regulations as conferring such authority.

We agree with Romero. Applying the standard tools of interpretation—namely, a reading of the text of the relevant regulations—we clearly discern from the text that the authority of immigration judges and the BIA to administratively close cases is conferred by the plain language of 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii).

Even if we were to assume that the regulations were ambiguous, thus requiring the court’s assessment of Castro-Tum under Auer v. Robbins, 519 U.S. 452 (1997), and Kisor v. Wilkie, 139 S. Ct. 2400 (2019), the Attorney General’s reading of the regulations does not warrant deference because it amounts to an “unfair surprise” disrupting the regulated parties’ expectations. The new interpretation in Castro-Tum (1) breaks with decades of the agency’s use and acceptance of administrative closure and (2) fails to give “fair warning” to the regulated parties of a change in a longstanding procedure.

Administrative closure has been a procedural mechanism employed by immigration judges and the BIA since the late 1980s and consistently reaffirmed—even if its precise contours have changed—through the BIA’s precedential decisions. Accordingly, numerous petitioners have relied on this long-established procedural mechanism to proceed through the immigration process. To suddenly change this interpretation of the regulation undermines the significant reliance interests such petitioners have developed. A sudden shift in longstanding agency interpretation frustrates mechanisms for predictability that are supposed to be baked into the administrative process.

This conclusion is bolstered by the further consideration that Castro-Tum is internally inconsistent. Although one of its purported concerns is efficient and timely administration of immigration proceedings, it would in fact serve to lengthen and delay many of these proceedings by: (1) depriving immigration judges and the BIA of flexible docketing measures sometimes required for adjudication of an immigration proceeding and (2) leading to the reopening of over 330,000 cases upon the motion of either party, straining the burden on immigration courts that Castro-Tum purports to alleviate. For all of these reasons, Castro-Tum is not entitled to Auer deference.

Petition for review granted; vacated and remanded.

Romero v. Barr (Lawyers Weekly No. 001-167-19, 24 pp.) (Steven G. Agee, J.) Case No. 18-1850. Aug. 29, 2019. On petition for review of an order of the Board of Immigration Appeals. Benjamin Ross Winograd for Petitioner, Rebecca Hoffberg Phillips for Respondent.


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