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ImmIGRATION MAY 14, 2021 | The Indian Eye 46

The first step for reforming the immigration Courts is to

allow immigration Judges to administratively Close Cases

Attorney General Merrick The IJ denied his claims proach. Under this test, necessarily encompass
CYrus d. MehTa Garland to withdraw Mat- and issued an order of re- the court must determine actions of whatever kind
n May 5, 2021, ter of Castro Tum. This moval. Two weeks from (i) that the regulation is appropriate, including ad-
the majority opin- would have a great impact the IJ’s decision, the state “genuinely ambiguous” — ministrative closure, and
Oion in the Third in reducing the immigra- criminal charges were dis- the court should reach this hence there was no am-
Circuit Court of Appeals tion court backlog, bring missed. As a result of the conclusion after exhaust- biguity thus necessitating
decision in Sanchez v. At- a modicum of fairness and dismissal of the charges, ing all the “traditional Auer deference.
torney General followed allow an IJ to focus on se- Sanchez was eligible again tools” of construction; (ii) The majority in in San-
two other circuit courts rious cases. for DACA status. if the regulation is genu- chez agreed with this anal-
in holding that an Immi- The Petitioner in San- On appeal to the BIA, inely ambiguous, whether ysis. In a dissent, Judge
gration Judge (IJ) has the chez v. AG, Arcos San- Sanchez challenged the the agency’s interpretation Paul Matey said that the
authority to administra- chez, a native and citizen IJ’s decision and request- is reasonable; and (iii) even rule which states that cas-
tively close cases. If there of Mexico, entered the US ed that the BIA remand if it is a reasonable inter- es may only be adminis-
is a case that is deserving at the age of seven with- the case to the IJ for con- pretation, whether it meets tratively closed when “ap-
for an IJ to administra- out inspection. In 2012, sideration of administra- the “minimum threshold” propriate and necessary,”
tively close a case, this is it. he applied for Consider- tive closure so that his to grant Auer deference, shouldn’t be interpreted to
Former Attorney General ation of Deferred Action DACA application could requiring the court to con- grant “unfettered discre-
Sessions, under President for Childhood Arrivals be approved, which in turn duct an “independent in- tion.” According to Judge
Trump, issued Matter of (DACA) status, which would favorably impact the quiry” into whether (a) it Matey, “[t]o the contrary,
Castro Tum holding that was approved. The DHS disposition of the remov- is an authoritative or offi- ‘appropriate and neces-
an IJ and the Board of Im- periodically granted his al proceeding. The BIA cial position of the agency; sary’ is itself an important
migration Appeals (BIA) requests for renewals. In denied remand, citing the (b) it reflects the agency’s restriction on the scope
did not have this author- April 2019, Sanchez was binding decision of Castro substantive expertise; and of the attorney general’s
ity. It is about time that arrested and charged in Tum. The Third Circuit (c) the agency’s interpreta- delegation, and one that
the Biden administration New Jersey with sexual overruled the BIA and tion of the rule reflects “its comes with some bite.”
stop defending Matter of assault and endangering held that 8 CFR 1003.10(b) fair and considered judg- In a subsequent opin-
Castro Tum. There is a the welfare of a child. As a and 1003.1(d)(1(ii) unam- ment.” ion in June 2020 following
great and urgent need to result of these charges, the biguously grants IJs and A great example of Romero v. Barr by now
reform the immigration USCIS revoked Sanchez’s the BIA general authority a federal court applying Justice Amy Coney Bar-
courts, including making DACA status and placed to administratively close Kisor in an immigration rett, the Seventh Circuit in
them more independent, him in removal proceed- cases by authorizing them case is the 2019 Fourth Meza Morales v. Barr also
but a simple first step is for ings. Sanchez applied for to take “any action” that Circuit decision Romero v concluded that “the im-
asylum and related relief. is “appropriate and neces- Barr. The court in Rome- migration regulations that
sary” for the disposition of ro overturned Matter of grant immigration judges
cases. Castro-Tum by holding their general powers [are]
The majority in San- that the plain language of broad enough to implicitly
chez relied on the Su- 8 C.F.R. §§ 1003.10(b) and encompass that [adminis-
preme Court’s 2018 de- 1003.1(d)(1)(ii) unambig- trative closure] authority.”
cision in Kisor v. Wilkie, uously confers upon IJs Although the Sixth Circuit
which has come to the aid and the BIA the general in Hernandez-Serrano v.
of petitioners challenging authority to administra- Barr a few months later
DHS’s interpretation of tively close cases such that in November 2020 upheld
supposedly ambiguous im- an Auer deference assess- Castro-Tum, the Third Cir-
migration regulations. Our ment is not warranted. cuit majority in Sanchez
prior blogs addressing the Even if these regulations sided with the reasoning
beneficial impact of Kisor are ambiguous, the court in the Fourth and Seventh
v. Wilkie on federal court citing Kisor noted that Circuit. The majority in
decisions involving immi- Auer deference cannot be Hernandez-Serrano was
gration law are here and granted when the new in- concerned that when im-
here. In Auer v. Robins, terpretation results in “un- migration cases leave an
the Supreme Court held fair surprise” to regulated IJ’s active calendar they
that the same Chevron parties especially when the never come back and “[t]
type of deference applies agency’s current interpre- hus the reality is that, in
m of to the agency’s interpreta- tation conflicts with a prior hundreds of thousands of

CYRUS D. MEHTA & PARTNERS PLLC tion of its own regulations. one. The Fourth Circuit in cases, administrative clo-
After Kisor, no longer can Romero v. Barr focused sure has amounted to a

the DHS invoke Auer def- on the specific language decision not to apply the
erence with respect to its “may take any action….. Nation’s immigration laws

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­ ability to interpret its own appropriate and necessary at all.” But even if that is
regulations. The majority for the disposition” of the a legitimate concern, the
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opinion in Kisor essen- case” in 8 CFR 1003.1(d) Sanchez court reasoned
tially “cabined the scope” (1)(ii) & 1003.10(b). Ac- that the Attorney General
of Auer deference, and cording to the Fourth Cir- can amend the regulation
2 6th Floor set forth a three-step ap- cuit, this language would and it is not the role for the

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