Jesus Zuniga Romero v. William Barr
937 F.3d 282
| 4th Cir. | 2019Background
- In 2013 DHS initiated removal proceedings against Jesus Zuniga Romero (Honduran national); he later reopened after an approved I-130 filed by his wife.
- Romero sought administrative closure so he could apply for a Form I-601A provisional unlawful presence waiver; IJ denied the request under Matter of Avetisyan factors.
- The BIA sustained Romero’s appeal and administratively closed his case; DHS moved for reconsideration.
- The Attorney General issued Matter of Castro-Tum, ruling IJs and the BIA lack general authority to administratively close cases absent a specific regulation or judicially-approved settlement; relying on Castro-Tum the BIA reopened and dismissed Romero’s appeal and ordered removal.
- Romero petitioned for review in the Fourth Circuit seeking vacatur of the BIA’s dismissal; the Fourth Circuit concluded the governing regulations unambiguously authorize general administrative closure and vacated and remanded.
Issues
| Issue | Romero's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) unambiguously authorize IJs and the BIA to administratively close cases | The regulations’ broad phrase “may take any action…appropriate and necessary for the disposition of such cases” (and “any”) plainly includes administrative closure | Neither regulation grants general authority; Castro-Tum holds closure is allowed only by specific regulation or judicial settlement | The regs unambiguously confer general authority to administratively close cases; Castro-Tum was erroneous and BIA order vacated |
| Whether Auer (deference to agency interpretation of its own regulation) applies to Castro-Tum | If ambiguous, agency interpretation could be entitled to deference | Castro-Tum is an authoritative AG interpretation and should receive deference | No Auer deference needed because the regulations are unambiguous; even if ambiguous, Castro-Tum would not merit Auer (it upended long-standing practice and would cause unfair surprise) |
| Whether Skidmore deference supports Castro-Tum | Agency’s reasoning should be persuasive based on expertise and prior practice | The AG’s reconsideration reflects agency judgment | Skidmore deference rejected: Castro-Tum conflicts with longstanding practice, lacks persuasive force, and is internally inconsistent |
| Whether reliance interests and practical effects counsel against the AG’s revocation of general closure authority | Longstanding, consistent use of administrative closure produced significant reliance (hundreds of thousands of closed dockets); sudden change disrupts administration and fairness | Revocation improves uniformity and timeliness by eliminating indefinite suspensions | Court found reliance and practical consequences significant; Castro-Tum’s abrupt change and internal inconsistencies weighed against deferring to it |
Key Cases Cited
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretations of their own regulations under certain conditions)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (limits and conditions on Auer deference; ‘genuine ambiguity’ and ‘fair warning’ requirements)
- Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012) (refusal to defer where agency’s new interpretation would create unfair surprise after long inaction)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (weight of agency interpretations depends on persuasiveness, consistency, and expertise)
- Vahora v. Holder, 626 F.3d 907 (7th Cir. 2010) (administrative closure is a procedural device not specified in the INA but used for docket management)
- Gonzalez-Caraveo v. Sessions, 882 F.3d 885 (9th Cir. 2018) (recognizing regulatory language as authority for administrative closure)
- Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. 2007) (describing standard of review for BIA legal conclusions and regulatory interpretation)