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opinion should not be published and is not precedent except under the limited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.
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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.
2
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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.
3
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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.
4