Immigration – AG Sessions’ opinion on authority of immigration judges abrogated

Where former U.S. Attorney General Sessions opined that immigration judges and the Board of Immigration Appeals, or BIA, lack authority to administratively close cases, but his opinion was at odds with the plain meaning of the regulations and the government has since disavowed it, Sessions’ opinion is abrogated.

Background

In August 2016, Javier Chavez Gonzalez was granted deferred action on his removal from the United States pursuant to the Deferred Action for Childhood Arrivals program, or DACA. As a result of a subsequent misdemeanor conviction, the Department of Homeland Security, or DHS, terminated petitioner’s grant of deferred action, and placed him in removal proceedings.

However, during the course of his proceedings before the immigration judge, or IJ, DHS officially restored petitioner’s DACA grant of deferred action. As a result, petitioner asked the IJ to either administratively close his case, terminate the removal proceedings or grant a continuance based on his mother’s pending application to be a legal permanent resident, or LPR. The IJ denied all requests for relief, and petitioner appealed to the BIA.

While the matter was pending in the BIA, petitioner’s mother obtained LPR status, and petitioner filed a motion to remand with the BIA. The BIA affirmed the IJ’s decision and denied the motion to remand. It relied on Matter of S-O-G- & F-D-B-, 27 I. & N. Dec. 462 (A.G. 2018), where Attorney General Sessions concluded that IJs and the BIA may only exercise the powers delegated to them by statute or federal regulation, and that no statute or regulation confers to IJs and the BIA the general authority to terminate proceedings.

The BIA also found administrative closure and a continuance to be inappropriate based on the speculative possibility of petitioner’s mother earning LPR status. The BIA denied the motion to remand because petitioner failed to present prima facie evidence that his mother’s LPR status would qualify him for cancellation of removal.

Deference

In Romero v. Barr, 937 F.3d 282 (4th Cir. 2019), interpreting the very same regulations at issue here, the court held that “the plain language of [the regulations] unambiguously confers upon IJs and the BIA the general authority to administratively close cases such that an Auer deference assessment is not warranted.” There is no reason to reach a different result as to the unambiguity of the regulations with regard to termination of removal proceedings. Therefore, per Romero, no deference is due to the attorney general in his view of the immigration laws and regulations in this regard.

Merits

As set forth in Romero, this court interpreted the “expansive language” of sections 1003.10(b) and 1003.1(d)(1)(ii) and held that “the authority of IJs and the BIA to administratively close cases is conferred by the plain language.” Thus, pursuant to Romero, the regulations clearly encompass the “action” of termination of removal. The government’s arguments to the contrary do not hold up. This court has found no provisions stating that the IJ or BIA cannot terminate removal proceedings, and the government does not cite to any. The attorney general’s decision in Matter of S-O-G- is therefore in conflict with the plain meaning of section 1003.10(b) and 1003.1(d)(1)(ii) and must be abrogated.

Even assuming the plain language of the regulations is ambiguous and implicates Auer deference, the government’s position fails. To begin with, this court has overruled Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018), in Romero. Further, Attorney General Garland no longer takes the position set forth in Castro-Tum and has since disavowed the idea that the IJs and BIA cannot administratively close proceedings. The attorney general’s decision in Matter of S-O-G- is hereby abrogated.

Closure

Petitioner next challenges the BIA’s rejection of his request for administrative closure without specifically addressing DACA as a basis for his request. The government does not dispute that the BIA did not mention DACA in rejecting petitioner’s request. Furthermore, the government admits that in some cases, the agency will (and has) granted administrative closure based on DACA. Therefore, upon remand, the BIA must address petitioner’s DACA-based administrative closure argument.

Remaining arguments

Petitioner next contends that the IJ abused its discretion in denying petitioner’s request for a continuance in order to allow him to apply for cancellation of removal based on his mother’s then-pending LPR application. Because the IJ’s decision was not without rational explanation, did not inexplicably depart from established policies or did not rest on an impermissible basis, this argument is rejected.

Finally, petitioner contends that the BIA erred in declining to remand his case so that he could apply for cancellation of removal based on his mother’s newly awarded LPR status. The court disagrees. However, that on remand, petitioner may choose to renew his request for cancellation of removal based on his mother’s LPR status.

Petition granted in part, denied in part, vacated and remanded.

Gonzalez v. Garland (Lawyers Weekly No. 001-179-21, 26 pp.) (Stephanie Thacker, J.) Case No. 20-1924. Oct. 20, 2021. From the Board of Immigration Appeals. Benjamin Ross Winograd for Petitioner. Sara J. Bayram for Respondent.