Garcia v. Garland ( 2023 )

20-1641-ag
Garcia v. Garland
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2021
No. 20-1641
ANTONIO LUNA GARCIA,
Petitioner,
v.
MERRICK B. GARLAND,
UNITED STATES ATTORNEY GENERAL,
Respondent.
On Petition for Review of an Order of
the Board of Immigration Appeals
ARGUED: SEPTEMBER 14, 2021
DECIDED: MARCH 31, 2023
Before: WALKER, NARDINI, and MENASHI, Circuit Judges.
Antonio Luna Garcia petitions for review of a decision of the
Board of Immigration Appeals (“BIA”) affirming the denial of his
request for administrative closure of his removal proceedings. The
agency relied on Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018),
a then-controlling decision of the Attorney General that prohibited
administrative closure. The Attorney General subsequently overruled
that decision and revised the agency’s position. See Matter of Cruz-
Valdez, 28 I. & N. Dec. 326 (A.G. 2021). We deny the petition for
review. First, we hold that an agency does not abuse its discretion by
relying on an interpretation of its regulations that is controlling at the
time of its decision—even if the agency subsequently revises that
interpretation—as long as it reflects a reasonable interpretation of the
regulations. Second, we conclude that the regulations in this case are
at least ambiguous with respect to the availability of administrative
closure and that Matter of Castro-Tum expressed a reasonable
interpretation of the regulations that is entitled to deference. Third,
we agree with the BIA that Matter of Castro-Tum did not authorize
administrative closure in this case.
BIBIANA C. ANDRADE, New York, NY, for Petitioner.
COLIN J. TUCKER, Trial Attorney, Office of Immigration
Litigation (Brian Boynton, Acting Assistant Attorney
General, Civil Division, Greg D. Mack, Senior Litigation
Counsel, Office of Immigration Litigation, on the brief),
United States Department of Justice, Washington, D.C.,
for Respondent.
MENASHI, Circuit Judge:
Petitioner Antonio Luna Garcia seeks review of a decision of
the Board of Immigration Appeals (“BIA” or the “Board”) affirming
the denial of his request for administrative closure of his removal
proceedings. In denying the request, the agency relied on Matter of
2
Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018), a then-controlling
decision of the Attorney General that held that the regulations
governing immigration adjudications did not allow immigration
judges or the BIA to apply administrative closure except in narrow
circumstances. The Attorney General has since overruled Matter of
Castro-Tum. See Matter of Cruz-Valdez, 28 I. & N. Dec. 326 (A.G. 2021).
As a result, this appeal presents the question of whether an agency
abused its discretion when it relied on an interpretation of its
regulations that was controlling at the time of its decision but that the
agency has since modified. Even if it was not an abuse of discretion
to apply an agency interpretation that has since changed, Garcia
argues that Matter of Castro-Tum conflicted with the regulations it
purported to interpret, and therefore the agency erred in applying
that interpretation at any time. Garcia further argues, in the
alternative, that even if Matter of Castro-Tum reflected a reasonable
interpretation of the regulations, it nevertheless permitted
administrative closure in his case. The agency, he argues, incorrectly
interpreted Matter of Castro-Tum when it held otherwise.
We deny the petition for review. First, we hold that an agency
does not abuse its discretion by relying on an interpretation of its
regulations that is controlling at the time of its decision—even if the
agency subsequently revises that interpretation—as long as it reflects
a reasonable interpretation of the regulations. Second, we conclude
that the regulations in this case are at least ambiguous with respect to
the availability of administrative closure and that Matter of Castro-
Tum expressed a reasonable interpretation of the regulations that is
entitled to deference. Third, we agree with the BIA that Matter of
Castro-Tum did not authorize administrative closure in this case.
3
BACKGROUND
I
An immigration judge (“IJ”) conducts removal proceedings to
determine whether an alien is “removable from the United States.”
8 U.S.C. § 1229a(c)(1)(A). But rather than proceed to a final decision,
the IJ might “administratively close” the proceedings. Matter of
W-Y-U-, 27 I. & N. Dec. 17, 18 (B.I.A. 2017). Administrative closure
does not terminate the case. Rather, it “temporarily remove[s] a case
from an Immigration Judge’s active calendar or from the [BIA’s]
docket.” Matter of Avetisyan, 25 I. & N. Dec. 688, 692 (B.I.A. 2012). Such
closure might be used “to 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.” Id. But see Matter of Castro-Tum, 27 I. & N. Dec. at 272
(“Although described as a temporary suspension, administrative
closure is effectively permanent in most instances.”).
No statute or regulation expressly authorizes IJs or the BIA to
employ administrative closure. See Gonzalez-Caraveo v. Sessions, 882
F.3d 885, 889 (9th Cir. 2018) (“Although [administrative closure] is
regularly used, it is not described in the immigration statutes or
regulations.”); Vahora v. Holder, 626 F.3d 907, 917 (7th Cir. 2010)
(“[A]dministrative closure is not a practice specified in the statute, nor
is it mentioned in the current regulations.”). Instead, agency
adjudicators have inferred that authority from broad regulatory
language that authorizes IJs, “[i]n deciding the individual cases before
them, and subject to the applicable governing standards,” to “take
any action consistent with their authorities under the [Immigration
and Nationality] Act and regulations that is appropriate and
4
necessary for the disposition of such cases,” 8 C.F.R. § 1003.10(b)
(2018), and that authorizes the BIA, “[s]ubject to these governing
standards,” to “take any action consistent with their authorities under
the Act and the regulations that is appropriate and necessary for the
disposition of the case,” id. § 1003.1(d)(1)(ii). See Matter of Avetisyan,
25 I. & N. Dec. at 693.
In 1990, the BIA held that “the administrative closing
procedure should not be used if it is opposed by either party to the
proceedings.” Matter of Munoz-Santos, 20 I. & N. Dec. 205, 207 (BIA
1990); see also Matter of Gutierrez-Lopez, 21 I. & N. Dec. 479, 480 (BIA
1996) (“A case may not be administratively closed if opposed by
either of the parties.”). The BIA did not further address administrative
closure between 1996 and 2012. 1 It revised its position in Matter of
Avetisyan, in which the BIA decided that the limitations its precedent
put on the use of administrative closure “directly conflict[ed] with the
delegated authority of the Immigration Judges and the Board and
their responsibility to exercise independent judgment and discretion
in adjudicating cases and to take any action necessary and
appropriate for the disposition of the case.” 25 I. & N. Dec. at 693. In
place of its previous rule, the BIA decided that IJs or the BIA should
“weigh all relevant factors” when considering a request for
administrative closure. Id. at 696. Five years later, in Matter of W-Y-U-,
the BIA narrowed this holding. In that case, the Department of
Homeland Security requested administrative closure, but the alien
objected because it would have prevented him from pursuing his
asylum application. See 27 I. & N. Dec. at 17. The BIA sided with the
1 See Elizabeth Montano, The Rise and Fall of Administrative Closure in
Immigration Courts, 129 Yale L.J. Forum 567, 571-72 (2020).
5
alien, clarifying that, when a party opposes administrative closure,
“the primary consideration for an Immigration Judge in determining
whether to administratively close or recalendar proceedings is
whether the party opposing administrative closure has provided a
persuasive reason for the case to proceed and be resolved on the
merits.” Id. at 20.
The next year, in Matter of Castro-Tum, the Attorney General
overruled Matter of Avetisyan and Matter of W-Y-U-. 2 Attorney
General Sessions said that Matter of Avetisyan departed from
“decades” of precedent limiting administrative closure. 27 I. & N.
Dec. at 273. He explained that “[g]rants of general authority to take
measures ‘appropriate and necessary for the disposition of such cases’
would not ordinarily include the authority to suspend such cases
indefinitely. Administrative closure in fact is the antithesis of a final
disposition.” 27 I. & N. Dec. at 285 (quoting 8 C.F.R. § 1003.10(b)
(2018)). The Attorney General decided that “[u]nlike the power to
grant continuances, which the regulations expressly confer,
immigration judges and the Board lack a general authority to grant
administrative closure. No Attorney General has delegated such
broad authority, and legal or policy arguments do not justify it.” Id.
at 282-83. Accordingly, the Attorney General held that “immigration
2 The Attorney General is authorized to “establish such regulations, …
issue such instructions, review such administrative determinations in
immigration proceedings, delegate such authority, and perform such other
acts as the Attorney General determines to be necessary for carrying out”
his oversight of the Executive Office for Immigration Review, the
component of the Department of Justice that conducts removal
proceedings. 8 U.S.C. § 1103(g)(2). In line with that authority, BIA decisions
may be referred for the Attorney General’s review. 8 C.F.R. § 1003.1(h)(1)
(2018).
6
judges and the Board lack this authority except where a previous
regulation or settlement agreement has expressly conferred it.” Id. at
283.
After the decision of the BIA in this case, the Attorney General
overruled Matter of Castro-Tum. Attorney General Garland said that
he had “determined that it is appropriate to overrule Attorney
General Sessions’s opinion in Castro-Tum” because it “departed from
long-standing practice” and had been rejected by some courts. Matter
of Cruz-Valdez, 28 I. & N. Dec. at 328-29. He explained that the
Department of Justice had effectively codified Castro-Tum by
regulation, 3 but the Department was reconsidering those regulations,
and while “the reconsideration proceeds and except when a court of
appeals has held otherwise, immigration judges and the Board should
apply the standard for administrative closure set out in Avetisyan and
W-Y-U-.” 28 I. & N. Dec. at 329.
II
Antonio Luna Garcia wants to become a lawful permanent
resident of the United States. But in March 2014, Garcia was served
with a notice to appear before an IJ because of his illegal entry and
presence in the United States since 1999. The notice to appear
informed Garcia that he was subject to removal under 8 U.S.C.
3 Those regulations were issued subsequent to the decision of the BIA in
this case. See Appellate Procedures and Decisional Finality in Immigration
Proceedings; Administrative Closure, 85 Fed. Reg. 81,588, 81,651, 81,655 (Dec.
16, 2020) (amending 8 C.F.R. §§ 1003.1(d)(1)(ii), 1003.10(b)). We therefore do
not consider those regulations in this appeal. This opinion relies on the 2018
edition of the Code of Federal Regulations, which contains the operative
regulations at the time of the IJ and BIA decisions in this case and at the
time the Attorney General decided Matter of Castro-Tum.
7
§ 1182(a)(6)(A)(i) because he was not properly admitted and had not
been paroled.
After Garcia received the notice to appear, his wife—a U.S.
citizen—filed an I-130 Petition for Alien Relative. U.S. Citizenship and
Immigration Services (“USCIS”) approved that petition, thereby
establishing that Garcia is the husband of a U.S. citizen. Establishing
this sort of family relationship is the first step to obtaining lawful
permanent resident status. See 8 U.S.C. § 1151(b)(2)(A)(i); id.§ 1154(a)(1)(A)(i); see also Neang Chea Taing v. Napolitano, 567 F.3d 19,
21 (1st Cir. 2009) (describing the process of obtaining lawful
permanent resident status on the basis of a family relationship). Still,
the notice of approval included a disclaimer that the approval of the
I-130 petition did not constitute a visa and that the Department of
Homeland Security (“DHS”) still retained the authority to pursue
removal proceedings against Garcia.4
Garcia still needed to seek adjustment of his status through the
filing of an I-485 application. See 8 U.S.C. § 1255; see also Neang Chea
4 The notice read: “Although this application/petition has been approved,
USCIS and the U.S. Department of Homeland Security reserve the right to
verify the information submitted in this application, petition and/or
supporting documentation to ensure conformity with applicable laws,
rules, regulations, and other authorities. Methods used for verifying
information may include, but are not limited to, the review of public
information and records, contact by correspondence, the internet, or
telephone, and site inspections of businesses and residences. Information
obtained during the course of verification will be used to determine
whether revocation, rescission, and/or removal proceedings are
appropriate. Applicants, petitioners, and representatives on record will be
provided an opportunity to address derogatory information before formal
proceeding is initiated.” J. App’x 54.
8
Taing, 567 F.3d at 21. Adjustment of status is available for “an alien
who was inspected and admitted or paroled into the United States.”
8 U.S.C. § 1255(a). But because he entered the United States illegally,
Garcia was neither admitted nor paroled into the United States.
Accordingly, he needed to return to his country of origin, Mexico, to
apply for an immigrant visa from the U.S. consulate. Yet because
Garcia had been “unlawfully present in the United States for one year
or more,” he would be unable to reenter the United States if he sought
“admission within 10 years of the date of [his] departure … from the
United States.” 8 U.S.C. § 1182(a)(9)(B)(i)(II). To be able to return to
the United States from Mexico within ten years, Garcia needed to
submit an I-212 Application for Permission to Reapply for Admission
and an I-601A Application for Provisional Unlawful Presence Waiver
before leaving the country. See 8 U.S.C. § 1182(a)(9)(B)(v). 5
Garcia did not believe that he could be approved for an I-601A
waiver while he was also subject to ongoing removal proceedings.
DHS regulations provide that “an alien is ineligible for a provisional
unlawful presence waiver … if … [t]he alien is in removal
proceedings, in which no final order has been entered, unless the
5 See Villavicencio Calderon v. Sessions, 330 F. Supp. 3d 944, 957 (S.D.N.Y.
2018) (“DHS’s regulations permit an eligible alien to obtain a provisional
waiver in three steps. First, the alien’s U.S. citizen relative (e.g., a spouse)
files a Form I-130 ‘Petition for Alien Relative’ to request that the
Government recognize the alien as the citizen’s immediate relative. See 8
U.S.C. § 1154(a)(l)(A)(i). Second, the alien files a Form I-212 ‘Application for
Permission to Reapply for Admission’ to request permission to reapply for
admission into the United States. Third, the alien files a Form I-601A
‘Application for Provisional Unlawful Presence Waiver’ to request the
provisional waiver of inadmissibility. An alien is granted a provisional
waiver only if each of the forms are approved.”).
9
removal proceedings are administratively closed and have not been
recalendared at the time of filing the application for a provisional
unlawful presence waiver.” 8 C.F.R. § 212.7(e)(4)(iii) (2018). For that
reason, Garcia requested that the IJ in his removal proceedings
adjourn his merits hearing to another date so that he could pursue the
I-601A provisional waiver from DHS.
The IJ declined to order either a continuance or administrative
closure in Garcia’s case. The IJ denied Garcia’s request for a
continuance “because no good cause has been established for the
requested continuance.” J. App’x 28. The IJ also declined to grant
Garcia administrative closure because, in light of Matter of Castro-
Tum, administrative closure was “no longer an option in this case.”
Id. Garcia appealed to the BIA.
The BIA affirmed the IJ’s denial of administrative closure
because “[t]he Attorney General has explicitly held that the Board and
the Immigration Judges lack the general authority to administratively
close cases.” Id. at 9 (citing Matter of Castro-Tum, 27 I. & N. Dec. at 278
n.3, 287 n.9). The BIA additionally stated that administrative closure
was not necessary for Garcia to apply for a provisional unlawful
presence waiver. The BIA observed that “[t]he DHS has amended the
rules regarding provisional unlawful presence waivers to permit
individuals with final removal orders to apply for provisional
unlawful presence waivers in certain instances.” Id. (citing Expansion
of Provisional Unlawful Presence Waivers of Inadmissibility, 81 Fed.
Reg. 50,244, 50,275-76 (July 29, 2016); 8 C.F.R. § 212.7(e)(4)(iv) (2018)).
It noted that Garcia could request an administrative stay of removal
from DHS instead.
Garcia petitioned for review of the BIA’s decision.
10
DISCUSSION
We review the denial of administrative closure for abuse of
discretion. Mi Young Lee v. Lynch, 623 F. App’x 33, 34 (2d Cir. 2015);
see also Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006) (reviewing
the denial of a motion for a continuance for abuse of discretion). The
agency abuses its discretion when its decision “rests on an error of
law … or a clearly erroneous factual finding or … cannot be located
within the range of permissible decisions.” Morgan v. Gonzales, 445
F.3d 549, 551-52 (2d Cir. 2006).
In this appeal, we consider (1) whether the agency’s subsequent
overruling of Matter of Castro-Tum renders its previous reliance on
that decision an abuse of discretion; (2) if not, whether Matter of
Castro-Tum represented a reasonable interpretation of the applicable
regulations; and (3) whether the agency misapplied Matter of Castro-
Tum in holding that it precluded Garcia from obtaining
administrative closure. We address each question in turn.
I
Since the BIA issued its decision in this case, the Attorney
General has supplanted Matter of Castro-Tum with a new
interpretation of the applicable regulations, set forth in Matter of Cruz-
Valdez. 28 I. & N. Dec. at 329. The government argues, however, that
the BIA “reasonably relied upon Matter of Castro-Tum—at a time
when it was still good law—to deny Petitioner’s administrative
closure request.” Letter at 2, Garcia v. Garland, No. 20-1641, ECF No. 76
(2d Cir. Sept. 17, 2021). In the government’s view, “the agency does
not abuse its discretion by relying on precedent that is controlling at
the time it renders its decision,” and for that reason “the BIA did not
abuse its discretion by citing Matter of Castro-Tum as one ground for
11
denying Petitioner’s request for administrative closure.” Id. at 1-2. We
agree.
An agency has not abused its discretion when it relied on an
agency interpretation—such as the BIA’s reliance on Matter of Castro-
Tum—that was valid and applicable at the time the agency rendered
its decision. Admittedly, that is not how the overturning of precedent
works in the judicial system. “Because a judicial overruling is a
reinterpretation of existing law, it typically takes effect immediately;
the Court’s new interpretation will apply to all pending disputes,
including those arising out of events that pre-dated the new
opinion.” 6
But agencies are not courts. When an agency interprets an
ambiguous statute or regulation, it “may conduct what looks like an
adjudicatory proceeding,” but “in that proceeding the agency hardly
interprets or applies a preexisting legal rule to the specifics of a case
or controversy.” De Niz Robles v. Lynch, 803 F.3d 1165, 1173 (10th Cir.
2015) (Gorsuch, J.). Courts defer to the agency’s interpretation not
“because it represents a superior interpretation of existing law” but
“because the agency has been authorized to fill gaps in statutory law
with its own policy judgments.” Id. That means the agency acts “less
like a judicial actor interpreting existing law and a good deal more
6 Deborah A. Widiss, How Courts Do—and Don’t—Respond to Statutory
Overrides, 104 Judicature 51, 53 (2020); see Harper v. Va. Dep’t of Tax., 509 U.S.
86, 97 (1993) (“When this Court applies a rule of federal law to the parties
before it, that rule is the controlling interpretation of federal law and must
be given full retroactive effect in all cases still open on direct review and as
to all events, regardless of whether such events predate or postdate our
announcement of the rule.”).
12
like a legislative actor making new policy” that may differ at different
times. Id. 7
Under Chevron v. Natural Resources Defense Council, 467 U.S. 837(1984), and related cases, a court does not treat an agency’s overruling
of its own prior interpretation as if it were a judicial reinterpretation
of existing law. Rather, when an agency reinterprets an ambiguous
statutory provision, it is making policy within the bounds of
discretion that Congress has conferred on the agency by statute. “[A]
statute’s ambiguity constitutes an implicit delegation from Congress
to the agency to fill in the statutory gaps,” FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 159 (2000), and “the whole point of Chevron
7 Even when an executive agency acts like a legislative or judicial actor, it
still exercises executive power. See City of Arlington v. FCC, 569 U.S. 290, 304
n.4 (2013) (“Agencies make rules … and conduct adjudications … and have
done so since the beginning of the Republic. These activities take
‘legislative’ and ‘judicial’ forms, but they are exercises of—indeed, under
our constitutional structure they must be exercises of—the ‘executive
Power.’”) (quoting U.S. Const. art. II, § 1, cl. 1); see also William Baude,
Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1577 (2020) (“Many
… instances of non-Article III adjudication occur in true members of the
executive branch—administrative agencies.”). In Humphrey’s Executor v.
United States, the Supreme Court contemplated that an agency might “act[]
in part quasi-legislatively and in part quasi-judicially” if it performs its
“duties as a legislative or as a judicial aid.” 295 U.S. 602, 628 (1935). Such an
agency “cannot in any proper sense be characterized as an arm or an eye of
the executive” because “[i]ts duties are performed without executive leave
and … must be free from executive control.” Id.; see also Seila Law LLC v.
CFPB, 140 S. Ct. 2183, 2198 (2020) (“Rightly or wrongly, the Court viewed
the FTC (as it existed in 1935) as exercising ‘no part of the executive
power.’”). The Supreme Court has said that Humphrey’s Executor’s
“conclusion that the FTC did not exercise executive power has not
withstood the test of time.” Seila Law, 140 S. Ct. at 2198 n.2. However that
may be, we are here considering an executive agency.
13
is to leave the discretion provided by the ambiguities of a statute with
the implementing agency,” Smiley v. Citibank (S.D.), N.A., 517 U.S. 735,
742 (1996). That is because filling statutory gaps “involves difficult
policy choices that agencies are better equipped to make than courts.”
Nat’l Cable & Telecomms. Ass’n. v. Brand X Internet Servs., 545 U.S. 967,
980 (2005).
The policy choices of an agency need not remain static. As the
Supreme Court explained in Chevron, “an agency to which Congress
has delegated policymaking responsibilities may, within the limits of
that delegation, properly rely upon the incumbent administration’s
views of wise policy to inform its judgments.” Chevron, 467 U.S. at
865. Thus, “[w]ithin the limits of the text,” an agency’s interpretation
“might rest on a political judgment, which different administrations
might legitimately make in different ways.” 8 But the fact that agency
interpretations vary between administrations based on policy
considerations does not mean that the interpretation of either
administration is invalid. Cf. Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto Ins. Co., 463 U.S. 29, 59 (1983) (Rehnquist, J., concurring in
part and dissenting in part) (“As long as the agency remains within
8 Cass R. Sunstein, Chevron as Law, 107 Geo. L.J. 1613, 1626 (2019); see also
Thomas W. Merrill, The Chevron Doctrine: Its Rise and Fall, and the Future of
the Administrative State 150 (2022) (explaining that the “principle that favors
administrative interpretation is the desirability of channeling issues of
discretionary policy choice to administrative agencies” because the agency
rather than a court is “the relatively more accountable and expert
interpreter”); John F. Manning, Lessons from a Nondelegation Canon, 83 Notre
Dame L. Rev. 1541, 1564 (2008) (“If an ambiguous organic act leaves open a
question of policymaking discretion, it is preferable in our representative
system to assume that Congress intended to delegate that discretion to
more accountable agencies rather than to less accountable courts.”)
(footnote omitted).
14
the bounds established by Congress, it is entitled to assess
administrative records and evaluate priorities in light of the
philosophy of the administration.”) (footnote omitted).
Judicial deference to an agency’s interpretation of its own
regulations implicates these same considerations. In Kisor v. Wilkie,
139 S. Ct. 2400 (2019), the Supreme Court reaffirmed its holding in
Auer v. Robbins, 519 U.S. 452 (1997), that such deference is appropriate.
The Court explained that “the core theory of Auer deference is that
sometimes the law runs out, and policy-laden choice is what is left
over.” Kisor, 139 S. Ct. at 2415; see also id. at 2413 (plurality opinion)
(“[T]he presumption that Congress intended Auer deference stems
from the awareness that resolving genuine regulatory ambiguities
often entails the exercise of judgment grounded in policy concerns.”)
(internal quotation marks and alteration omitted).
Because an agency interpretation of its regulations may reflect
policy judgment, the interpretation may vary at different times—
especially between different administrations—without casting doubt
on the validity of the interpretation at either time. Indeed, in this case,
whatever authority the BIA had to decide the issues before it was
“[s]ubject to the[] governing standards” set out in 8 C.F.R.
§ 1003.1(d)(1)(ii) (2018), specifically including “decisions of the
Attorney General,” id. § 1003.1(d)(1)(i). The BIA did not abuse its
discretion when it applied Matter of Castro-Tum while that decision
was authoritative. A new Attorney General may have issued a new
decision articulating a different interpretation of the applicable
regulations, but that decision does not render the agency’s previous
compliance with the Attorney General’s decisions an abuse of
discretion. See De Niz Robles, 803 F.3d at 1173 (noting that a new
15
interpretation announced in an agency adjudication is subject to a
“presumption of prospectivity”). 9
For these reasons, the decision of the BIA cannot be invalidated
simply because it relied on a regulatory interpretation that the agency
subsequently revised. 10 To the contrary, the agency permissibly
relied on its previous interpretation of the regulations—provided, of
course, that the interpretation itself was permissible. An agency
interpretation of a regulation is permissible if it either follows from
the unambiguous language of the regulation or, if “the regulation is
genuinely ambiguous,” the agency’s interpretation of the regulation
is “reasonable” in that it falls “within the zone of ambiguity” of the
regulation. Kisor, 139 S. Ct. at 2415-16. We now turn to that question.
9 The government might have declined to defend the BIA’s decision in this
case on the ground that it relied on Matter of Castro-Tum, but it has not done
so. See Letter at 2, Garcia v. Garland, No. 20-1641, ECF No. 76 (2d Cir. Sept.
17, 2021) (“[T]he government is not waiving the argument that the Board
reasonably relied upon Matter of Castro-Tum—at a time when it was still
good law—to deny Petitioner’s administrative closure request.”).
10 We emphasize that in Matter of Cruz-Valdez the agency reinterpreted its
procedural regulations, effectively “announcing new rules of general
applicability” and making a policy-laden judgment that, we have
explained, resembles legislation and presumably applies prospectively.
Marquez v. Garland, 13 F.4th 108, 112 (2d Cir. 2021) (quoting De Niz Robles,
803 F.3d at 1172). We recognize that when an agency adjudicator applies
“preexisting rules” to “discrete cases and controversies,” its decision may
apply retroactively to past conduct, depending on certain factors. Id. at 111-
12 (quoting De Niz Robles, 803 F.3d at 1172); see also Lugo v. Holder, 783 F.3d
119, 121 (2d Cir. 2015); Abner S. Greene, Adjudicative Retroactivity in
Administrative Law, 1991 Sup. Ct. Rev. 261, 264 (“[A]djudicative retroactivity
is generally justified on the ground that adjudicators deciding cases arising
under antecedently given rules are applying those rules to particular
cases.”).
16
II
The key question in this case is whether the agency abused its
discretion by relying on Matter of Castro-Tum. See Morgan, 445 F.3d at
551-52. Such reliance would amount to an abuse of discretion if the
regulatory interpretation reflected in Matter of Castro-Tum “rest[ed]
on an error of law.” Id. at 551. Matter of Castro-Tum would reflect a
legal error if it either (1) interpreted unambiguous regulatory
language incorrectly or (2) interpreted ambiguous regulatory
language unreasonably. See Kisor, 139 S. Ct. at 2415 (“If uncertainty
does not exist, there is no plausible reason for deference. … If genuine
ambiguity remains, moreover, the agency’s reading must still be
reasonable.”).
We conclude that the regulations considered in Matter of Castro-
Tum are at least ambiguous and that the Attorney General’s
interpretation was reasonable. The BIA did not abuse its discretion by
following that interpretation.
A
We defer to an agency’s reasonable interpretation of its own
regulations only if those regulations are “genuinely ambiguous.”
Kisor, 139 S. Ct. at 2414; see also Bey v. City of New York, 999 F.3d 157,
166 (2d Cir. 2021) (declining to defer to an interpretation of
unambiguous regulations). We have noted that the language in a
statute or regulation is ambiguous if it is “reasonably susceptible” to
two or more readings. In re Med Diversified, Inc., 461 F.3d 251, 255 (2d
17
Cir. 2006). 11 We do not interpret the language in isolation. Rather, we
look to “the language itself, the specific context in which that
language is used, and the broader context of the statute” or the
regulation “as a whole.” Union Carbide Corp. v. CIR, 697 F.3d 104, 107
(2d Cir. 2012) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341
(1997)). We “must read the words in their context and with a view to
their place in the overall statutory [or regulatory] scheme” because
we construe statutes and regulations, “not isolated provisions.”
Cuthill v. Blinken, 990 F.3d 272, 279 (2d Cir. 2021).
We conclude that the regulations at issue here are at least
ambiguous as to the permissibility of administrative closure. At the
time of the BIA’s decision affirming the IJ’s denial of administrative
closure, § 1003.1(d)(1) read, in relevant part, as follows:
(i) The Board shall be governed by the provisions and
limitations prescribed by applicable law, regulations,
and procedures, and by decisions of the Attorney
General (through review of a decision of the Board, by
written order, or by determination and ruling pursuant
to section 103 of the [Immigration and Nationality] Act).
(ii) Subject to these governing standards, Board members
shall exercise their independent judgment and discretion
11 But cf. Raymond M. Kethledge, Ambiguities and Agency Cases: Reflections
After (Almost) Ten Years on the Bench, 70 Vand. L. Rev. En Banc 315, 319
(2017) (“It matters very much … that judges work very hard to identify the
best objective meaning of the text before giving up and declaring it
ambiguous.”); Brett M. Kavanaugh, Fixing Statutory Interpretation, 129
Harv. L. Rev. 2118, 2121 (2016) (noting that a “number of canons of
statutory interpretation depend on an initial evaluation of whether the
statutory text is clear or ambiguous” but “it is so difficult to make those
clarity versus ambiguity determinations in a coherent, evenhanded way”).
18
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.
8 C.F.R. § 1003.1(d)(1) (2018). Section 1003.10 followed a similar
structure at the time of the IJ’s denial of administrative closure:
(b) Powers and duties. 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.
...
(d) Governing standards. Immigration judges shall be
governed by the provisions and limitations prescribed by
the Act and this chapter, by the decisions of the Board,
and by the Attorney General (through review of a
decision of the Board, by written order, or by
determination and ruling pursuant to section 103 of the
Act).
Id. § 1003.10.
Some courts have concluded that the “any action” and
“appropriate and necessary” language in § 1003.1(d)(1)(ii) and
§ 1003.10(b) provides an unambiguous and unalterable authorization
19
for administrative closure. See Arcos Sanchez v. Attorney General, 997
F.3d 113, 121-22 (3d Cir. 2021) (“[B]y considering the text, structure,
history, and purpose of 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii), we
hold that the plain language establishes that general administrative
closure authority is unambiguously authorized by these
regulations.”); Meza Morales v. Barr, 973 F.3d 656, 667 (7th Cir. 2020)
(“Castro-Tum’s interpretive arguments fail to convince us that
administrative closure is not plainly within an immigration judge’s
authority to take ‘any action’ that is ‘appropriate and necessary for
the disposition of ... cases.’”); Romero v. Barr, 937 F.3d 282, 292 (4th Cir.
2019) (“Applying the standard tools of interpretation … we clearly
discern from the text that the authority of IJs 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).”). Those courts reasoned that
administrative closure is an “action” as contemplated by the enabling
regulations. See, e.g., Romero, 937 F.3d at 292 (“[I]f we give the word
‘any’ its plain meaning, that language grants IJs and the BIA broad
discretion in how to manage and resolve cases.”). And the courts
decided that the use of administrative closure in several cases proves
that it is “appropriate and necessary” in many circumstances. See, e.g.,
id. at 293-94.
We disagree. The regulations do not unambiguously permit
administrative closure. The text of § 1003.1 and § 1003.10 could be
understood to put “limiting parameters on what may be considered
‘appropriate and necessary.’” Arcos Sanchez, 997 F.3d at 128 (Matey,
J., dissenting). Both § 1003.1 and § 1003.10 limit the grant of authority
to take “appropriate and necessary” measures to those measures
undertaken “for the disposition of” cases. It is at least arguable that
administrative closure does not constitute a disposition because it
20
does not resolve a case on the merits. See Matter of Avetisyan, 25 I. & N.
Dec. at 695 (“[A]dministrative closure does not result in a final
order.”). Therefore, one might reasonably conclude that
administrative closure is not necessary to dispose of cases. The canon
against surplusage requires us to “give effect, if possible, to every
clause and word of a statute,” avoiding interpretations that would
render one or more of the statute’s provisions superfluous. Panjiva,
Inc. v. CBP, 975 F.3d 171, 178 (2d Cir. 2020) (quoting Williams v. Taylor,
529 U.S. 362, 404 (2000)). To avoid superfluity, the language “for the
disposition of” must limit the category of actions considered
“appropriate and necessary.” 8 C.F.R. § 1003.1(d)(1)(ii) (2018); id.§ 1003.10(b). The language therefore makes it ambiguous whether
administrative closure is “appropriate and necessary” to dispose of
cases.
Another court has reached a similar conclusion. The Sixth
Circuit has explained that “[a]dministrative closure typically is not an
action taken ‘[i]n deciding’ a case before an IJ; instead, … 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.”
Hernandez-Serrano v. Barr, 981 F.3d 459, 463 (6th Cir. 2020). Thus,
“because the practice by design prevents the IJ from making any
disposition in the case,” the Sixth Circuit has held that “Section
1003.10 hardly provides general authority for such a practice.” Id. This
reading is not unambiguously foreclosed by the regulations.
B
Because the regulations are at least ambiguous, we consider the
reasonableness of the Attorney General’s interpretation in Matter of
21
Castro-Tum. We defer to a reasonable interpretation of ambiguous
regulations as long as that interpretation reflects the agency’s “fair
and considered judgment” and its “authoritative or official position”
on a matter that “implicate[s] its substantive expertise.” Kisor, 139
S. Ct. at 2416-17 (internal quotation marks omitted). We do not defer
to an interpretation that represents “a convenient litigating position
or a post hoc rationalization advanced by an agency seeking to defend
past agency action against attack.” Christopher v. SmithKline Beecham
Corp., 567 U.S. 142, 155 (2012) (internal quotation marks, citations, and
alteration omitted).
The interpretation reflected in Matter of Castro-Tum was
articulated by the Attorney General, pursuant to his authority to
“issue such instructions” and “review such administrative
determinations in immigration proceedings” as he “determines to be
necessary for carrying out” his oversight of the Executive Office for
Immigration Review. 8 U.S.C. § 1103(g)(2); see also 8 C.F.R.
§ 1003.1(h)(1) (2018) (providing for the referral of BIA decisions to the
Attorney General). Congress gave the Attorney General the authority
to “speak with the force of law” in reviewing immigration decisions,
and the interpretation here was issued pursuant to that authority.
United States v. Mead Corp., 533 U.S. 218, 229 (2001); see also Kisor, 139
S. Ct. at 2412 (plurality opinion) (noting the presumption that “the
power authoritatively to interpret its own regulations is a component
of the agency’s delegated lawmaking powers”) (quoting Martin v.
Occupational Safety & Health Rev. Comm’n, 499 U.S. 144, 151 (1991)).
The interpretation reflected “the agency’s ‘authoritative’ or ‘official
position,’” Kisor, 139 S. Ct. at 2416 (quoting Mead, 533 U.S. at 257-59 &
n.6 (Scalia, J., dissenting)), and its “considered judgment on the matter
in question,” Christopher, 567 U.S. at 155 (quoting Auer, 519 U.S. at
22
462), within the scope of “the agency’s ordinary duties,” Kisor, 139
S. Ct. at 2417 (internal quotation marks omitted).
We conclude that the Attorney General’s interpretation of the
regulations in Matter of Castro-Tum was reasonable. As noted above,
the phrases “any action” and “appropriate and necessary,” read in
context, are respectively modified by “subject to the applicable
governing standards” and “for the disposition of such cases.” 8 C.F.R.
§ 1003.10(b) (2018); see also id. § 1003.1(d)(1)(ii). It is reasonable to read
that language and conclude that it does not authorize administrative
closure because such closure does not bring about the “disposition”
of a case; it merely removes a case from an IJ’s or the BIA’s active
calendar without resolution. Hernandez-Serrano, 981 F.3d at 463.
Because other, enumerated authorities allow IJs and the BIA to
suspend proceedings in immigration cases, administrative closure
may not be “necessary” even if an adjudication required some
suspension of proceedings. See 8 C.F.R. § 1003.29 (2018) (authorizing
continuances); 8 C.F.R. § 1240.6 (2018) (authorizing adjournments);
see also Hernandez-Serrano, 981 F.3d at 464 (“As early as 1958,
regulations granted the predecessors to IJs … and the Board authority
to take actions ‘appropriate and necessary for the disposition of’ their
cases. Yet there is little if any record of immigration cases being
administratively closed for nearly a quarter-century afterward.”)
(internal citations omitted).
The Attorney General reasonably interpreted the regulations as
not authorizing administrative closure, and the BIA and the IJ
permissibly relied on that interpretation in declining to grant Garcia
23
administrative closure. 12 When the Attorney General decided that
the regulations did not authorize administrative closure, the BIA and
the IJ were bound by that interpretation. 13
III
Garcia argues that even accepting that Matter of Castro-Tum
bound the agency in this case, that decision allowed the IJ or the BIA
to grant his request for administrative closure. Garcia points to the
12 Indeed, the BIA and the IJ were required to follow that interpretation.
Whatever authority the BIA or an IJ has to take actions that are “appropriate
and necessary,” that authority is “[s]ubject to these governing standards,”
8 C.F.R. § 1003.1(d)(1)(ii) (2018), including “decisions of the Attorney
General,” id. § 1003.1(d)(1)(i); see also id. § 1003.10(b) (authorizing IJs to take
actions “subject to the applicable governing standards”); id. § 1003.10(d)
(providing that “[i]mmigration judges shall be governed by,” among other
things, decisions of the Attorney General).
13 Garcia argues that the agency’s reliance on Matter of Castro-Tum
subjected him to “unfair surprise” because that decision was issued just
over a month before his merits hearing. Petitioner’s Br. 13. Yet even before
Castro-Tum, whether to allow administrative closure was “a matter
reserved to the discretion of the Immigration Judge or the Board.” Matter of
Avetisyan, 25 I. & N. Dec. at 695. The denial of administrative closure in this
case did not represent an “upending of reliance” because Garcia could not
have had a settled expectation of the agency granting him administrative
closure. Kisor, 139 S. Ct. at 2418. In Castro-Tum, the Attorney General
explained that the decision “does not raise due process or retroactivity
concerns” because “[a]dministrative closure confers no legal entitlement to
indefinite closure and has always been understood as revocable.” 27 I. & N.
Dec. at 294 n.14. This case does not resemble those in which regulated
parties have been subjected to unfair surprise by the imposition of new
liability or fines. See Christopher, 567 U.S. at 155-56 (identifying unfair
surprise when the agency’s interpretation of ambiguous regulations would
“impose potentially massive liability ... for conduct that occurred well
before that interpretation was announced”).
24
DHS regulation governing eligibility for a provisional unlawful
presence waiver. That regulation provides an exception to an alien’s
ineligibility for such a waiver if the alien’s “removal proceedings are
administratively closed and have not been recalendared at the time of
filing the application for a provisional unlawful presence waiver.” 8
C.F.R. § 212.7(e)(4)(iii) (2018). Garcia argues that because the DHS
regulation expressly contemplates administrative closure in cases
such as his, administrative closure remained an option for the IJ or the
BIA in his case, despite the general rule of Matter of Castro-Tum.
But IJs and the BIA are delegates of the Attorney General, not
the Secretary of Homeland Security. See 8 U.S.C. § 1101(b)(4) (“An
immigration judge shall be subject to such supervision and shall
perform such duties as the Attorney General shall prescribe.”). 14
“Because only the Attorney General may expand the authority of
immigration judges or the Board,” a regulation promulgated by DHS
“cannot be an independent source of authority for administrative
closure.” Matter of Castro-Tum, 27 I. & N. Dec. at 287 n.9.
CONCLUSION
The agency did not abuse its discretion when it relied on the
Attorney General’s opinion in Matter of Castro-Tum to decline to grant
Garcia administrative closure. We deny the petition for review.
14 See also Exec. Office for Immigr. Rev., U.S. Dep’t of Just., Immigration
Court Practice Manual § 1.2(d) (2022) (“DHS is responsible for enforcing
immigration laws and administering immigration and naturalization
benefits. By contrast, the immigration courts and the Board of Immigration
Appeals are responsible for independently adjudicating cases under the
immigration laws. Thus, DHS is entirely separate from the Department of
Justice and the Executive Office for Immigration Review.”).
25