Santos-Bautista v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFREDO SANTOS-BAUTISTA, No. 21-744
Agency No.
Petitioner, A201-945-296
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 17, 2023**
San Francisco, California
Before: WARDLAW and M. SMITH, Circuit Judges, and RAYES, *** District
Judge.
Alfredo Santos-Bautista (Santos) appeals from a Board of Immigration
Appeals (BIA) decision dismissing his appeal of an Immigration Judge’s (IJ’s)
denial of motions to continue and/or administratively close proceedings. As the
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Douglas L. Rayes, United States District Judge for
the District of Arizona, sitting by designation.
parties are familiar with the facts, we do not recount them here. We grant in
part and deny in part the petition for review, and remand to the BIA with
instructions to adjudicate Santos’s motion for administrative closure.
1. Santos was not required to exhaust his administrative closure claim.
We recognize an “exception[] to the exhaustion requirement” where a
noncitizen raises a “legal issue[] based on events that occur after briefing to the
BIA has been completed.” Alcaraz v. INS, 384 F.3d 1150, 1158 (9th Cir. 2004).
Briefing in Santos’s appeal concluded on July 14, 2021. Just one day later, the
Attorney General vacated a decision that stripped IJs and the BIA of authority
to administratively close cases, see Matter of Castro-Tum, 27 I. & N. Dec. 271,
272 (AG 2018), and restored the agency’s prior guidelines for adjudicating such
requests. See Matter of Cruz-Valdez, 28 I. & N. Dec. 326, 329 (AG 2021)
(vacating Castro-Tum).
Santos’s motion for administrative closure became viable only after the
Attorney General issued Cruz-Valdez. The government concedes that, had
Santos raised his administrative closure claim to the BIA, the agency would
have denied the motion, consistent with then-controlling BIA precedent. Santos
seeks a remedy based on a “legal issue that . . . could not be briefed on [his]
direct appeal to the BIA” due to a change in agency policy that occurred “after
the date when [Santos] w[as] required to submit [his] briefs to the BIA.”
Alcaraz, 384 F.3d at 1159. Accordingly, Santos was not statutorily required to
exhaust his claim. For the same reasons, we also reject the government’s
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argument that prudential exhaustion requirements should be imposed in this
case. See id.
2. We are not persuaded that remand to the agency to reconsider Santos’s
motion for administrative closure would be futile. “Ordinarily, where both the
IJ and BIA erred by not independently reviewing [a petitioner’s] administrative
closure request, remand would be the appropriate remedy.” Gonzalez-Caraveo
v. Sessions, 882 F.3d 885, 893 (9th Cir. 2018). Neither the IJ nor BIA gave
reasons—verbal or written—for denying Santos’s motion. On appeal, the
government gestures at statements in the BIA’s decision that pertain to the
administrative-closure factors set forth in Matter of Avetisyan, 25 I. & N. Dec.
688 (BIA 2012) and which could support the agency’s denial of the motion.
But the government’s post-hoc rationalization in litigation is no substitute for
agency adjudication in the first instance. See generally Vermont Yankee
Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 549 (1978)
(stating well-established principle that judicial review of agency decision is
limited to the “contemporaneous explanation of the agency decision”).
We conclude that Santos was not required to exhaust his administrative
closure claim and that remand would not be futile. Accordingly, as the
government concedes in its briefing, remand “is required for the [BIA] to
consider Santos’s request for administrative closure in the first instance.”
3. The BIA did not abuse its discretion in denying Santos’s motion to
continue. In adjudicating Santos’s motion, the agency weighed factors set forth
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in Matter of Sanchez Sosa, 25 I. & N. Dec. 807 (BIA 2012) and Matter of L-N-
Y-, 27 I. & N. Dec. 755 (BIA 2020). Santos argues that the agency erred by
failing to address “primary” factors—specifically, whether Santos is prima facie
eligible for a U-visa, and whether a grant of relief would “materially impact”
proceedings. L-N-Y-, 27 I. & N. Dec. at 757. But the BIA arguably addressed
such primary factors in its disposition, and clearly weighed secondary factors
that counsel against granting a continuance, including the Department of
Homeland Security’s position on the motion, the number of prior continuances
granted, and administrative efficiency concerns. As such, the BIA did not act
“arbitrarily, irrationally, or contrary to law” in denying Santos’s motion.
Hernandez-Velasquez v. Holder, 611 F.3d 1073, 1077 (9th Cir. 2010) (cleaned
up).
PETITION GRANTED and REMANDED in part and DENIED in part.
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