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ImmIGRATION AUGUST 20, 2021 | The Indian Eye 36
matter of castro-tum
is dead everywhere except in the
sixth circuit:
it must be Buried there too
cyrus d. mehta and Numerous Circuit grant immigration judg- stantive expertise; and his case while he filed a
Court decisions over- es their general powers (c) the agency’s interpre- Form I-601A, Applica-
Kaitlyn BOx*
turned Castro-Tum. In [are] broad enough to tation of the rule reflects tion for Provisional Un-
n a previous blog, 2019, the Fourth Cir- implicitly encompass “its fair and considered lawful Presence Waiver,
cuit in Romero v. Barr
with USCIS. Pursuant to
that [administrative clo- judgment.”
we argued that Mat- held that the language sure] authority.” Most We have advocated 8 CFR § 212.7(e)(4)(iii),
Iter of Castro- Tum, “may take any action….. recently, the Third Cir- for Attorney General a noncitizen is not eligi-
a Trump era decision by appropriate and neces- cuit in Sanchez v. Attor- Garland to overturn Cas- ble for an I-601A waiver
then Attorney General
Jeff Sessions should be sary for the disposition” ney General, held that 8 tro- Tum and reinstate its “unless the[ir] removal
withdrawn. Matter of of the case” at 8 CFR CFR §§ 1003.10(b) and predecessor, Matter of proceedings are adminis-
Castro -Tum held that §§ 1003.1(d)(1)(ii) & 1003.1(d)(1)(ii) unam- Avetisyan, which held tratively closed and have
1003.10(b)
unambigu- biguously grant IJs and that the IJs and the BIA not been recalendared at
Immigration Judges (IJs) ously confers upon IJs the BIA general author- may administratively the time of filing the ap-
and the Board of Immi- and the BIA the gener- ity to administratively close removal proceed- plication”. Respondent’s
gration Appeals (BIA)
do not have the authority al authority to admin- close cases by authoriz- ings, even if a party op- motion was denied by
to administratively close istratively close cases. ing them to take “any ac- poses, if it is otherwise the IJ and the BIA on
cases, unless expressly Meza-Morales v. Barr, tion” that is “appropriate appropriate under the appeal on the grounds
decided by the Seventh and necessary” for the circumstances, and that that Castro-Tum prevent-
authorized by a previous Circuit in 2020, also con- disposition of cases. The IJs or the BIA should ed administrative closure
regulation or a previous cluded that the “immi- Court in Sanchez relied weigh all relevant factors of the case.
judicially approved set- gration regulations that on the Supreme Court’s in deciding whether ad- AG Garland’s de-
tlement.
2018 decision in Kisor v. ministrative closure is ap- cision noted that three
Wilkie, which held that an propriate. In prior blogs, courts of appeals have
agency’s interpretation see here and here, we rejected Castro – Tum,
of its own regulations will have argued that Aveti- “holding that adminis-
only be entitled to defer- syan sets a more com- trative closure is ‘plainly
ence if the following cri- mon sense standard for within an immigration
teria are met: i) that the administrative closure judge’s authority’ under
regulation is “genuinely that and would go a long Department of Justice
ambiguous” — the court way towards clearing regulations”, while only
should reach this conclu- the Immigration Court’s the 6th Circuit upheld it
sion after exhausting all backlogged dockets. in Hernandez-Serrano v.
the “traditional tools” of On July 15, 2021, the Barr, 981 F.3d 459 (6th
construction; (ii) if the Attorney General issued Cir. 2020). Even the 6th
regulation is genuinely a decision in Matter of Circuit eventually ruled
ambiguous, whether the Cruz-Valdez that takes that IJs and the BIA do
agency’s interpretation exactly this position, have the authority to ad-
is reasonable; and (iii) overruling Castro-Tum ministratively close cases
even if it is a reasonable in its entirety and hold- for the purpose of allow-
m of interpretation, whether ing that “[i]mmigration ing noncitizens to apply
CYRUS D. MEHTA & PARTNERS PLLC it meets the “minimum judges and the Board for provisional unlawful
threshold” to grant Auer should apply the stan- presence waivers, how-
deference, requiring the dard for administrative ever. See Garcia-DeLe-
court to conduct an “in- closure set out in Mat- on v. Garland, No. 20-
dependent inquiry” into ter of Avetisyan…” The 3957 (6th Cir. 2021). The
whether (a) it is an au- Respondent in the case decision also pointed to
thoritative or official po- was a Mexican national the 2020 DOJ final rule
sition of the agency; (b) it who had moved for ad- codifying Castro-Tum,
2 6th Floor
reflects the agency’s sub- ministrative closure of Appellate Procedures
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