Gonzalez-Penaloza v. Garland

Case: 20-60241     Document: 00515964030         Page: 1     Date Filed: 08/03/2021




              United States Court of Appeals
                   for the Fifth Circuit                        United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                                  August 3, 2021
                                  No. 20-60241                    Lyle W. Cayce
                                                                       Clerk

   Juan Jose Gonzalez-Penaloza, also known as Juan Terrasco-
   Torres,

                                                                         Petitioner,

                                       versus

   Merrick Garland, U.S. Attorney General,

                                                                      Respondent.


                      Petition for Review of an Order of the
                          Board of Immigration Appeals
                           Agency No. A-205-665-068



   Before Wiener, Dennis, and Duncan, Circuit Judges.
   Wiener, Circuit Judge:*
          This case arises from the denial of Petitioner Juan Jose Gonzalez-
   Penaloza’s motion requesting that the Board of Immigration Appeals
   (“BIA”) administratively close his case so that he could file a Form I-601A
   application with United States Citizenship and Immigration Services. The


          *
            Pursuant to 5th Circuit Rule 47.5, the court has determined that this
   opinion should not be published and is not precedent except under the limited
   circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-60241          Document: 00515964030             Page: 2       Date Filed: 08/03/2021




                                          No. 20-60241


   BIA denied the motion, believing it lacked the general authority to
   administratively close cases in light of Matter of Castro-Tum, 27 I&N Dec.
   271, 283 (Att’y Gen. 2018). On appeal, Petitioner asks us to join the Third,
   Fourth, and Seventh Circuits in holding that Castro-Tum was incorrectly
   decided.1
           After we heard oral argument in this case but before we issued an
   opinion, the Attorney General issued an opinion in Matter of Cruz-Valdez, 28
   I&N Dec. 326 (Att’y Gen. 2021), expressly overruling Castro-Tum. In Cruz-
   Valdez, the Attorney General noted that three courts of appeals had already
   rejected Castro-Tum’s reasoning and that the case “departed from long-
   standing practice.”2 The Attorney General also noted that, although the
   Department of Justice (“DOJ”) had promulgated a new regulation in
   December 2020 which effectively codified Castro-Tum’s prohibition of
   administrative closure, it is currently subject to a nationwide injunction 3 and
   the DOJ “is now engaged in a reconsideration of that regulation.”4 The


           1
               See Sanchez v. Att’y Gen., No. 20-1843, 2021 WL 1774965 (3d Cir. May 5, 2021);
   Romero v. Barr, 937 F.3d 282, 292 (4th Cir. 2019); Meza Morales v. Barr, 973 F.3d 656, 667
   (7th Cir. 2020).
           2
             28 I&N Dec. at 328, 329 (citing Romero, 937 F.3d at 292; Meza Morales v. Barr,
   973 F.3d 667; Acros Sanchez, 997 F.3d at 121-22). The Attorney General also stressed that
   even the Sixth Circuit, which upheld Castro-Tum, subsequently rejected the prohibition on
   administrative closure in cases in which the alien, like the petitioners in Cruz-Valdez and
   the instant case, sought the ability to apply for a provisional unlawful presence waiver. Id.
   at 328 (citing Hernandez-Serrano v. Barr, 981 F.3d 459, 464 (6th Cir. 2020); Garcia-DeLeon
   v. Garland, 999 F.3d 986, 989 (6th Cir. 2021)).
           3
            See Centro Legal de la Raza v. E.O.I.R., No. 21-CV-463, 2021 WL 916804 (N.D.
   Cal. Mar. 10, 2021).
           4
               28 I&N Dec. at 329.




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Case: 20-60241          Document: 00515964030              Page: 3      Date Filed: 08/03/2021




                                           No. 20-60241


   Attorney General stated that, while reconsideration of the regulation is
   ongoing, “immigration judges and the Board should apply the standard for
   administrative closure set out in [Matter of Avetisyan, 25 I&N Dec. 688, 692
   (BIA 2012)] and [Matter of W-Y-U, 27 I&N Dec. 17, 18 (BIA 2017)].”5
           Late last week, the Attorney General filed an unopposed motion to
   remand the case to the BIA and, in the alternative, an unopposed alternative
   motion to extend time for filing the parties’ supplemental briefs for 15 days
   from the denial of the motion to remand. In light of this development, the
   Attorney General’s unopposed motion to remand the case to the BIA is
   GRANTED. The Attorney General’s unopposed alternative motion to
   extend time for filing the parties’ supplemental briefs for 15 days from the
   denial of the motion to remand is DENIED as moot. The instant matter is
   REMANDED to the BIA to consider whether Petitioner’s case should be
   administratively closed to allow him to file a Form I-601A.6




           5
               Id.
           6
               Our dissenting colleague would reach the issue in this case on the merits because
   he believes the regulations foreclose the general use of administrative closure. Neither does
   the dissenter believe that Cruz-Valdez merits Auer deference. However, we need not reach
   these issues because the Attorney General filed an unopposed motion to remand the case
   to the BIA. Furthermore, we have not and need not consider the validity of Cruz-Valdez
   because the Attorney General’s new interpretation was not applied by the BIA in this case.




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Case: 20-60241      Document: 00515964030          Page: 4     Date Filed: 08/03/2021




                                    No. 20-60241


   Stuart Kyle Duncan, Circuit Judge, dissenting:
          Instead of remanding, I would deny the petition for review on the
   ground that the regulations foreclose the general use of administrative
   closure. See 8 C.F.R. §§ 1003.10(b); 1003.1(d)(1)(ii). In Matter of Castro-
   Tum, 27 I. & N. Dec. 271 (A.G. 2018), the Attorney General correctly
   interpreted those regulations, and the BIA did not err by following that
   decision and denying Petitioner’s motion for administrative closure. See
   Hernandez-Serrano v. Barr, 981 F.3d 459, 466 (6th Cir. 2020); Arcos Sanchez
   v. Attorney General, 997 F.3d 113, 124 (3d Cir. 2021) (Matey, J., dissenting).
          My view is not changed by the Attorney General’s new opinion in
   Cruz-Valdez, which purports to overrule Castro-Tum. See Matter of Cruz-
   Valdez, 28 I. & N. Dec. 326 (A.G. 2021). I have serious doubts that Cruz-
   Valdez merits any deference under Auer v. Robbins, 529 U.S. 452 (1997). See
   Kisor v. Wilkie, 139 S. Ct. 2400, 2415–18 (2019). Because I would reach this
   issue, and the majority does not, I respectfully dissent.




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