Fourth Circuit Abrogates Matter of Castro-Tum (Administrative Closure Decision)
Introduction
On August 29, 2019, the United States Court of Appeals for the Fourth Circuit published an important precedential decision titled Romero v. Barr, —- F.3d —— (4th Cir. 2019) [PDF version]. The Fourth Circuit concluded that the Department of Justice (DOJ) regulations governing the powers and conduct of immigration judges unambiguously vest in immigration judges the authority to administratively close cases. For this reason, the Fourth Circuit abrogated the decision of former Attorney General Jeff Sessions in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) [PDF version], wherein the Attorney General held that immigration judges do not have the general authority to administratively close cases. In this article, we will briefly examine the reasoning of the Fourth Circuit decision and its scope.
Please see our updated articles on Matter of Castro-Tum [see article] and related issues [see article] to learn more about the authority, or lack thereof, of immigration judges to administratively close cases.
The Fourth Circuit Decision in Romero
The petitioner (the alien) was mired in removal proceedings when he sought a provisional unlawful presence waiver [see article]. In order to have his provisional waiver granted, he needed his removal proceedings to be administratively closed. The Board of Immigration Appeals (BIA) ultimately granted the petitioner's request for administrative closure in 2017. In June 2018, however, the Board granted the Department of Homeland Security's (DHS's) motion for reconsideration of that ruling on the basis of the Attorney General's decision in Matter of Castro-Tum.
The Fourth Circuit recognized that administrative closure is not provided for in the Immigration and Nationality Act (INA). Thus, the question was whether the DOJ regulations implementing the INA vest in immigration judges general administrative closure authority. Specifically, the question was whether the Attorney General's interpretation of the regulations was entitled to Auer deference. Under Auer v. Robbins, 519 U.S. 452, 461 (1997) [PDF version], courts give substantial deference to an administrative agency's interpretation of its own ambiguous regulations. However, under Kisor v. Wilkie, 139 S.Ct. 2400, 2414 (2019) [PDF version], courts only may afford such deference only “if a regulation is genuinely ambiguous.” Thus, under the applicable Supreme Court precedents, the Fourth Circuit's first task was to determine whether the DOJ regulations governing the authority of immigration judges to conduct removal proceedings are “genuinely ambiguous.” Provided that the regulations are genuinely ambiguous, the court would then move to determine whether the agency's interpretation is “reasonable.” Kisor, at 2415. That is, even though the agency's interpretation of a genuinely ambiguous regulatory provision is generally entitled to deference, the interpretation must still be reasonable. Unreasonable constructions of ambiguous regulatory provisions are, therefore, not entitled to Auer deference. Alternatively — and pertinent to the instant case — the Fourth Circuit noted that courts generally do not provide Auer deference to new interpretations of regulations affecting regulated parties to the matter at issue. Kisor, at 2418.
The Fourth Circuit ultimately rejected Matter of Castro-Tum because the court concluded — contrary to former Attorney General Sessions — that 8 CFR 1003.10(b) and 8 CFR 1003.1(d)(1)(ii) both unambiguously give immigration judges general authority to administratively close removal proceedings. In the alternative, the Fourth Circuit would have also abrogated Matter of Castro-Tum in the instant case because of its creating an “unfair surprise” for the petitioner in his removal proceedings.
The Fourth Circuit found general administrative closure authority in two regulatory provisions, thus disagreeing with the Attorney General. 8 CFR 1003.10(b) provides that “[i]n deciding the individual cases before them … immigration judges shall exercise their independent judgment and discretion and may take any action … that is appropriate and necessary for the disposition of such cases…” (emphasis added). 8 CFR 1003.1(d)(1)(ii) also provides that the BIA “may take any action … as appropriate and necessary for the disposition of the case” (emphasis added). The Fourth Circuit read both of these regulations as unambiguously including docket management actions, such as administrative closure, in the ambient of “any action.” Because “administrative closure” is, in the Fourth Circuit's view, an “action” contemplated by these regulations to be undertaken by immigration judges (8 CFR 1003.10(b)) and Board members (8 CFR 1003.1(d)(1)(ii)), it concluded that the unambiguous language of the regulations foreclosed the Attorney General's position in Matter of Castro-Tum that the regulations do not contemplate general administrative closure authority. The Fourth Circuit did not find the fact that “any action” in the regulations is limited by the condition that the action must be “appropriate and necessary” under the circumstances of the case to change the fact that docket management tools such as administrative closure are among those “actions” contemplated under the regulations. For example, in the instant case, administrative closure was appropriate and necessary in order for the petitioner to pursue a provisional unlawful presence waiver with the United States Citizenship and Immigration Services (USCIS).
The Fourth Circuit provided an alternative rationale for rejecting Matter of Castro-Tum in the instant case — that it constituted an “unfair surprise” disrupting the expectations of the regulated parties — in this case, the petitioner in Kisor. Kisor, at 2417-18. Here, the Attorney General's position in Matter of Castro-Tum overturned at least three decades of practice in the immigration courts and the BIA. There was little warning given of the impending change. Thus, the Fourth Circuit noted that the petitioner justifiably relied on long-existing administrative closure practice in pursuing his motion for administrative closure.
The Fourth Circuit addressed a third issue — whether Matter of Castro-Tum was entitled to Skidmore deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944) [PDF version]. In considering the weight to give an agency's interpretation that is not entitled to Auer deference, courts must consider “the thoughtfulness evident in [the agency's] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it the power to persuade.” Zavaleta-Policiano v. Sessions, 873 F.3d 241, 246 n.2 (4th Cir. 2017) [PDF version]. Under these factors, the Fourth Circuit concluded that Matter of Castro-Tum lacked the power to persuade in all relevant respects, and was thus not entitled to Skidmore deference.
Scope of Decision
The Fourth Circuit's decision is only binding on the Government in cases arising in the jurisdiction of the Fourth Circuit [see article]. As a result, immigration judges and the BIA will have general administrative closure authority in cases arising in Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Immigration judges and the BIA will continue to be bound by Matter of Castro-Tum in all cases arising outside of those jurisdictions, absent further negative decisions from other Federal appellate courts.
That the Fourth Circuit provided two alternative rationales for rejecting Matter of Castro-Tum is noteworthy. First, because it found that the regulations were unambiguous, it would be unlikely in the future to accord either Auer or Skidmore deference to a new Attorney General or BIA decision employing alternative reasoning to find that there is no general administrative closure authority. The Fourth Circuit's reasoning suggests that it would be satisfied by nothing less than changes to the underlying regulations. Second, the Fourth Circuit provided an alternative rationale for rejecting Matter of Castro-Tum in the context of cases pending at the time it was decided concerning retroactivity. In the event that the Fourth Circuit reviews Romero en banc or the issue eventually makes its way to the Supreme Court of the United States, this alternative rationale may provide a basis for rejecting Matter of Castro-Tum as applied to cases that commenced prior to its publication.
Conclusion
Matter of Castro-Tum is one of the most significant precedent decisions relating to the conduct of removal proceedings. Because Matter of Castro-Tum is generally negative for aliens in proceedings, the Fourth Circuit's decision is welcome news for noncitizens in proceedings in the five states within its jurisdiction. We will continue to update the site with further developments on litigation involving Matter of Castro-Tum.