Gonzalez-Penaloza v. Garland
20-60241
5th Cir.Aug 3, 2021Background
- Petitioner Juan Jose Gonzalez-Penaloza sought administrative closure of his immigration proceedings so he could file a Form I-601A provisional unlawful-presence waiver with USCIS.
- The Board of Immigration Appeals (BIA) denied the motion, relying on Matter of Castro-Tum, which limited the BIA’s use of administrative closure.
- Petitioner asked the Fifth Circuit to join the Third, Fourth, and Seventh Circuits in holding Castro-Tum was incorrectly decided.
- After oral argument, the Attorney General issued Matter of Cruz-Valdez, overruling Castro-Tum and directing the BIA and immigration judges to apply the pre-Castro-Tum standard for administrative closure while the DOJ reconsiders a challenged regulation.
- The Attorney General filed an unopposed motion to remand; the Fifth Circuit granted the remand and returned the case to the BIA to reconsider administrative closure for Petitioner.
- Judge Duncan dissented, arguing the regulations foreclose general administrative closure, that Castro-Tum was correctly decided, and expressing skepticism that Cruz-Valdez merits Auer deference.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA may administratively close proceedings to allow filing of an I-601A provisional waiver | Gonzalez-Penaloza: BIA should exercise discretion to administratively close under pre-Castro-Tum practice (Avetisyan/W-Y-U standard) | BIA/AG (per Castro-Tum): regulations and Castro-Tum bar general use of administrative closure | Court did not decide merits; granted AG’s unopposed remand so BIA can reconsider under Cruz-Valdez guidance |
| Whether Castro-Tum remains controlling and whether Cruz-Valdez merits deference (Auer) | Petitioner: Castro-Tum was wrongly decided; other circuits rejected its reasoning | Dissent/AG (prior position): Castro-Tum correctly interpreted regulations; dissent doubts Cruz-Valdez receives Auer deference | Court avoided resolving validity/deference questions; remanded instead; dissent would have denied petition on the merits |
Key Cases Cited
- Romero v. Barr, 937 F.3d 282 (4th Cir. 2019) (rejected broad prohibition on administrative closure)
- Meza Morales v. Barr, 973 F.3d 656 (7th Cir. 2020) (held Castro-Tum was wrongly decided)
- Arcos Sanchez v. Attorney General, 997 F.3d 113 (3d Cir. 2021) (rejected Castro-Tum’s reasoning)
- Hernandez-Serrano v. Barr, 981 F.3d 459 (6th Cir. 2020) (narrowed Castro-Tum’s application in provisional-waiver contexts)
- Garcia-DeLeon v. Garland, 999 F.3d 986 (6th Cir. 2021) (applied Hernandez-Serrano reasoning)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (limits on Auer deference)