ABNER ANTONIO ARCOS SANCHEZ, a/k/a Abner Arcos, a/k/a Abner Sanchez, a/k/a Abner A. Snachez-Acros, a/k/a Abner Antonio Acros-Sanchez, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA
No: 20-1843
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
May 5, 2021
JORDAN, MATEY, Circuit Judges, and HORAN, District Judge.
PRECEDENTIAL. On Petition for Review of an Order of the Board of Immigration Appeals (BIA 1:A204-362-439). Immigration Judge: Mirlande Tadal. Argued: January 26, 2021.
2021 Decisions
Opinions of the United States Court of Appeals for the Third Circuit
5-5-2021
Abner Arcos Sanchez v. Attorney General United States
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“Abner Arcos Sanchez v. Attorney General United States” (2021). 2021 Decisions. 406. https://digitalcommons.law.villanova.edu/thirdcircuit_2021/406
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Jerard A. Gonzalez [ARGUED]
BASTARRIKA SOTO GONZALEZ & SOMOHANO
3 Garret Mountain Plaza - Suite 302
Woodland Park, NJ 07424
Cheryl Lin
338 Palisade Avenue - Suite 255
Jersey City, NJ 07307
Counsel for Petitioner
William P. Barr
Micah Engler
Brendan P. Hogan [ARGUED]
UNITED STATES DEPARTMENT OF JUSTICE
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
HORAN, District Judge.
Abner Antonio Arcos Sanchez petitions for review of the Board of Immigration Appeals’ (“Board“) decision dismissing his appeal of an Immigration Judge‘s (“IJ“) denial of his application for asylum, withholding of removal under
I. Facts and Procedural History
In 2002, at the age of seven, Arcos Sanchez, a native and citizen of Mexico, entered the United States without inspection. In 2012, he applied for DACA1 status,
In removal proceedings before the IJ, Arcos Sanchez applied for asylum, withholding of removal, and for relief under CAT. The IJ denied asylum, finding that Arcos Sanchez failed to meet the one-year filing deadline or show extraordinary circumstances in the delay. The IJ denied withholding of removal, finding the proposed social group was not cognizable. Finally, the IJ denied his CAT claim, finding he did not demonstrate at least a fifty percent chance he would be tortured upon his return to Mexico. On November 6, 2019, the IJ issued his decision and ordеred Arcos Sanchez‘s removal to Mexico. Two weeks later, his state criminal charges were dismissed.
On appeal to the Board, Arcos Sanchez challenged the IJ‘s decision and requested the Board remand his case to the IJ for consideration of administrative closure. He argued that, because the state criminal charges were dismissed, he was “eligible for renewal of his DACA and re-filed with UCIS on January 28, 2020[,]” which would impact the disposition of his removal proceeding. A.R. 26. The Board denied remand, citing the binding precedent of then-Attorney General Sessions’ Castro-Tum decision, which held that, under the regulations governing the Executive Office of Immigration Review, IJs and the Board do not have the general authority to indefinitely suspend immigration proceedings by administrative closure. The Board found that, since Arcos Sanchez did not show that his request for remand for administrative closure fell within the express exceptions under Castro-Tum, his case could not be administratively closed. 27 I. & N. Dec. at 283.2 Arcos-Sanchez petitioned for review of the Board‘s decision.
II. Jurisdiction
We have jurisdiction to review petitions under
III. History of Administrative Closure
A. Pre Castro-Tum
Since at least the 1980s, IJs and the Board have utilized administrative closure as a docketing tool to remove cases from
Even though IJs and the Board have used general administrative closure for almost three decades, the Immigration and Naturalization Act (“INA“) and the regulations governing IJs or the Board do not expressly authorize the practice. See Vahora v. Holder, 626 F.3d 907, 917-18 (7th Cir. 2010) (noting that the general power to administratively close a case is employed by quasi-judicial bodies for “orderly management of the docket” and is reviewable by courts). Although the INA and its regulations do not specifically reference general administrative closure authority, the regulations both explicitly and implicitly confer broad powers on IJs and the Board to manage their dockets. As regards IJs’ authority,
In conducting hearings under section 240 of the Act and such other proceedings the Attorney General may assign to them, immigration judges shall exercise the powers and duties delegated to them by the Act and by the Attorney General through regulation. In deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases. ... In all cases, immigration judges shall seek to resolve the questions before them in a timely and impartial manner consistent with the Act and regulations.
Id. (emphases added). In addition,
shall exercise their independent judgment and discretion in considering and determining the cases coming before the Board, and a panel or Board member to whom a case is assigned may take any action consistent with their authorities under the Act and the regulations as is appropriate and necessary for the disposition of the case.
Id. (emphases added).
Aside from regulations, Board decisions have also recognized the authority for IJs and the Board to administratively close cases, at first only if it was nоt “opposed by either of the parties.” Matter of Gutierrez-Lopez, 21 I. & N. Dec. at 479. In Matter of Avetisyan, the Board endorsed the administrative closure practice and held that both
In addition, as described by the Board, administrative closure can facilitate “efficient management of the resources of the immigration courts and the Board.” Id. at 695; see also Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 889-90 (9th Cir. 2018) (citing Matter of Avetisyan, supra as authority for administrative closure). Under this framework, the Board has issued decisions recognizing the authority for IJs to administratively close cases for many reasons related to the interests of justice or to the conservation of court resources. See e.g. Matter of Montiel, 26 I. & N. Dec. 555 (B.I.A. 2015) (holding administrative closure appropriate when a petitioner is awaiting resolution of a criminal conviction direct appeal). The Board reaffirmed Avetisyan in Matter of W-Y-U-, and clarified that “the primary consideration for an Immigration Judge in determining whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits. 27 I. & N. Dec. at 20.
B. Castro-Tum
On May 17, 2018, in Matter of Castro-Tum, then Attorney General Sessions employed administrative adjudication under
C. Post Castro-Tum
Since the issuance of Castro-Tum, our sister courts of appeals have split on whether it was correctly decided. The Fourth and Seventh Circuits have ruled that the IJ and Board have general authority
IV. Discussion
Arcos Sanchez argues that
The government, on the other hand, argues that the Board was correct to apply Castro-Tum, because the unambiguous text of the regulations does not confer general authority for administrative closure. This position tracks the ruling of the Sixth Circuit. In the alternative, the government argues that, if we should find the regulations are ambiguous, then we should defer to Castro-Tum. In either case, the government asks us to uphold the Board‘s decision denying Arcos Sanchez‘s request for remand for administrative closure. We will now address the issue of the general authority of IJs and the Board to administratively close cases.
Our consideration of the regulations, and in turn Castro-Tum, begins with review of the language of
In that regard, the Fourth Circuit in Romero applied the standard tools of interpretation by first reading the text of the relevant regulations. Both regulations provide that IJs and the Board “may take any action ... appropriate and necessary for the disposition” of the case.
and necessary’ for IJs and the [Board] to administratively close a case.” 937 F.3d at 293. Specifically, this clause requires that any action taken must be appropriate and necessary for the disposition of each case consistent with authorities under the Act and regulations. Precedent shows that the phrase “аppropriate and necessary” is treated broadly. Id. (citing Michigan v. EPA, 576 U.S. 743, 752 (2015) (“One does not need to open up a dictionary in order to realize the capaciousness of this phrase [‘appropriate and necessary‘].“); see also Sossamon v. Texas, 563 U.S. 277, 286 (2011) (noting “the word ‘appropriate’ is inherently context dependent“); Armour & Co. v. Wantock, 323 U.S. 126, 129-30 (1944) (concluding the word “necessary ... has always been recognized as a word to be harmonized with its context“). We similarly conclude
Finally, Romero noted, and we agree, that “the rest of the text of the relevant regulations supports the conclusion that IJs and the [Board] possess broad discretion in hоw to manage their cases.” 937 F.3d at 294. As for IJs,
In an opinion by now-Justice Amy Coney Barrett, the Seventh Circuit concluded in Meza Morales that “the immigration regulations that grant immigration judges their general powers [are] broad enough to implicitly encompass that [administrative closure] authority.” Id. Meza Morales cited the example given by the Fourth Circuit in Romero of when “appropriate and necessary actions” could include administrative closure: “cases in which two coordinate offices in the executive branch are simultaneously adjudicating collateral applications [and] closing one proceeding might help advance a case toward resolution.” Id. (citing Romero, 937 F.3d at 293). And it rejected the Government‘s arguments, such as that other regulatory provisions would be rendered superfluous or that delays caused by administrative closure are forbidden by the regulations. The opinion concludes that the regulatory preference for timeliness “is not a hard and fast deadline; some cases are more complex and simply take longer to resolve,” and therefore that preference “doesn‘t justify departure from the plain text of the rule.” Id. at 665. In the end, “[e]xpeditiousness may be one ... goal [of the regulations], but it is not the only goal.” Id. at 666.
We are fully persuaded that, as discussed in Romero and Meza Morales, the regulations afford IJs and the Board authority to take any action (including administrative closure) as is appropriate and necessary (in the context of each case) for the disposition of such case to resolve questions in a timely and impartial manner consistent with the Act and regulations. After applying the standard tools of
Yet, the government argues that the very same regulations unambiguously do not confer general authority for administrative closure.6 In Castro-Tum, the Attorney General
Notes
Both Castro-Tum and Hernandez-Serrano emphasize a concern that administrativе closure leads to delay or no final decision in removal cases. In fact, the opening sentence of the Hernandez-Serrano majority opinion states: “[a] regulation delegating to immigration judges authority to take certain actions ‘[i]n deciding the individual cases before them’ does not delegate to them general authority not to decide those cases at all.” 981 F.3d at 461. That court also observed, “[t]hus the reality is that, in hundreds of thousands of cases, administrative closure has amounted to a decision not to apply the Nation‘s immigration laws at all.” Id. at 463. Concern about administrative closures causing widespread delay and non-decision appears to have motivated both the Attorney General‘s and the Sixth Circuit‘s decisions. If IJs are abusing their discretion, that may very well be cause for concern, but it does not relate to the question that Castro Tum purported to answer—whether the regulations confer general authority for administrative closure. The majority in Hernandez-Serrano even conceded that “the ‘timely manner’ language is hortatory,” but cоncluded that “the IJ can resolve neither questions nor a case once it is administratively closed.” Id.
To this same point, the dissent observed, and we agree:
whether immigration courts have granted administrative closure too frequently, and have failed to reopen administratively closed cases too often, is of no significance to the question of whether Castro-Tum wrongly held that IJs and the BIA never have the discretion to decide that administrative closure is “appropriate and
necessary for the disposition” of immigration cases.
981 F.3d at 471. The authority to administratively close cases, within the appropriate and necessary context of each case, can and does permit IJs and the Board to answer the questions before them in a timely and impartial manner consistent with the Act and the regulations. Or in other words, delay in the case through administrative closure does not, by definition, prevent the timely disposition of the case and resolution of questions.
As discussed above, certain removal cases require resolution of questions that depend upon decisions from other tribunals or agencies over which neithеr the IJ nor the Board controls. The Attorney General‘s Castro-Tum decision fails to acknowledge the fact that allowing time for the IJ or the Board to receive the outcome from another tribunal or agency enables resolution of relevant questions and thus facilitates the timely disposition of a removal case. Without the general authority to administratively close appropriate cases when necessary, the IJs and the Board may not have a sufficiently developed record and may be less effective in managing cases. Such a result is not contemplated by the Act or the regulations.
That some IJs and the Board may have used, or misused, administrative closure to unduly delay or permanently close and not decide cases does not answer the legal question of whether IJs or the Board have the general authority to administratively close cases under the regulations. Improper use of administrative closure to attain objectives not authorized by the regulations is appropriаtely challenged and redressed through appropriate review, including judicial review under an abuse-of-discretion standard. See Vahora, 626 F.3d at 917 (review of administrative closure under an abuse of discretion standard).
In addition, the INA grants the Attorney General rulemaking authority to set standards for immigration judges and the Board.
V. Conclusion
For the reasons stated above, we conclude that the relevant regulations confer the general authority to administratively close cases to IJs and the Board. We therefore grant the petition for review, vacate the Board‘s order, and remand for proceedings consistent with this opinion.
MATEY, Circuit Judge, dissenting.
For years, immigration judges (“IJs“) and the Board of Immigration Appeals (“BIA“) have used administrative closure to pause removal proceedings and place immigration cases on indefinite hold. The Attorney General ended that practice in 2018. See generally Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018).
Abner Antonio Arcos Sanchez argues that the Attorney General is wrong. Longstanding regulations, he complains, authorize IJs and the BIA to take “any action” that is “appropriate and necessary.” But Arcos Sanchez reads only half the sentence. IJs, and the BIA, may take “any action . . . appropriate and necessary for the disposition of [their] cases.”
I. THE HISTORY OF ADMINISTRATIVE CLOSURE
I begin with the history informing the Attorney General‘s decision in Matter of Castro-Tum, and agree with the majority that administrative closure is a “decades-old practice . . . endorsed by Board decisions and rooted in prior interpretations of [the governing regulations].” Maj. Op. at 10. But I read that history to show shallow foundations for allowing what is prohibited by the best reading of the regulations.
A. Unclear Origins
Modern administrative practices often have hazy heritages, and immigration administrative closure is no exception. Regulations dating to the 1950s granted “special inquiry officers,” the predecessors to IJs, and the BIA, the authority to act as “appropriate and necessary for the disposition of” their cases. 23 Fed. Reg. 2670, 2671 (Apr. 23, 1958); 23 Fed. Reg. 9115, 9117 (Nov. 26, 1958). But while BIA opinions over the next two decades sometimes noted this language, see, e.g., Matter of Manneh, 16 I. & N. Dec. 272, 272–73 (B.I.A. 1977), “there is little if any record of immigration cases being administratively closed,” Hernandez-Serrano v. Barr, 981 F.3d 459, 464 (6th Cir. 2020). Instead, by all accounts, immigration administrative closure arrived in a 1984 memо from the Chief Immigration Judge advising IJs that they could order closure in in absentia cases.1 Perhaps foreshadowing this case, the memo cited no authority.
The BIA‘s published administrative closure jurisprudence began soon after, and was similarly silent about any statutory or regulatory foundations. As the Attorney General later explained, the decisions “assumed without explanation that immigration judges and the Board possessed this general authority.” Matter of Castro-Tum, 27 I. & N. Dec. at 275. In Matter of Amico, the BIA described administrative closure as simply “an administrative convenience.” 19 I. & N. Dec. 652, 654 n.1 (B.I.A. 1988). So too in Matter of Lopez-Barrios, 20 I. & N. Dec. 203, 204 (B.I.A. 1990) and Matter of Munoz-Santos, 20 I. & N. Dec. 205, 207 (B.I.A. 1990). The BIA reaffirmed that view in 1996 in Matter of Gutierrez-Lopez, 21 I. & N. Dec. 479, 479 (B.I.A. 1996). Then, silence, and the BIA did not examine administrative closure again for over a decade. Elizabeth Montano, The Rise and Fall of Administrative Closure in Immigration Courts, 129 Yale L.J. Forum 567, 571 (2020). “Thus, by all appearances, administrative closure was simply a device created by the IJs themselves[.]” Hernandez-Serrano, 981 F.3d at 464 (internal quotation marks and citation omitted).
B. Circumscribed Regulatory Adoption
That conclusion matches the evolution of the regulatory guidance. Until the late 1990s, Department of Justice (“DOJ“) regulations did not mention administrative closure. Matter of Castro-Tum, 27 I. & N. Dec. at 276. In 1998, the Attorney General formally acknowledged the growing practice, promulgating regulations narrowly allowing administrative closure in specific circumstances. For example,
None, however, provided for administrative closure generally. So where did the IJ and BIA get the authority to close cases in all these other proceedings?
C. Matter of Avetisyan and Expansion
In 2012—almost three decades into this regime—the BIA offered its first answer. The trio of 1990s-era proceedings—Matter of Munoz-Santos, Matter of Lopez-Barrios, and Matter of Gutierrez-Lopez—all permitted administrative closure as a matter of “administrative convenience,” but only when both parties supported the request. See, e.g., Matter of Gutierrez-Lopez, 21 I. & N. Dec. at 480. Since the government typically opposed, this rule operated as a sort of veto power over closure requests. Troubled, the BIA in Matter of Avetisyan changed course, replacing the consensus requirement with a multifactor analysis. 25 I. & N. Dec. 688, 694–96 (B.I.A. 2012). And, importantly, it rested this authority on two regulations that, it suggested, confer broad authority to the IJs and BIA to manage their dockets:
The first,
In deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases. . . . In all cases, immigration judges shall seek to resolve the questions before them in a timely and impartial manner consistent with the Act and regulations.
Id. (emphasis added).
The second,
Neither regulation, though, provides for “administrative closure” anywhere in its text. No matter, the BIA concluded: “During the course of proceedings, an Immigration Judge or the Board may find it necessary or, in the interests of justice and fairness to the parties, prudent to defer further action for some period of time.” Matter of Avetisyan, 25 I. & N. Dec. at 691. One option available to an IJ, the BIA acknowledged, “is a continuance.” Id. As it so happens, continuances, unlike administrative closures, are expressly permitted “[p]ursuant to regulation.” id. at 691–92; see
These decisions had immediate, practical effect: Administrative closures soared. Statistics maintained by the Executive Office of Immigration Review show that from 1980 to 2011, 283,366 cases were administratively closed (about 9,100 per year)—“[b]ut in a mere six years, from October 1, 2011 through September 30, 2017, immigration judges and the Boаrd ordered administrative closure in 215,285 additional cases,” or more than 35,000 per year. Matter of Castro-Tum, 27 I. & N. Dec. at 273; see also Romero v. Barr, 937 F.3d 282, 289 (4th Cir. 2019) (acknowledging that “as of October 2018, over 330,000 cases remained administratively closed“).
D. The Attorney General Intervenes
Eventually, the Attorney General stepped in. In 2014, the Department of Homeland Security (“DHS“) commenced removal proceedings against Reynaldo Castro-Tum. Matter of Castro-Tum, 27 I. & N. Dec. at 279. The IJ sent five separate hearing notices summoning Castro-Tum to appear. Id. at 280. Each time, Castro-Tum did not. Id. DHS asked the IJ to proceed in absentia, but the IJ refused and instead, administratively closed the case (along with ten others) over its objection. Id. The government appealed, the BIA vacated the IJ‘s decision, and the Attorney General assumed responsibility under
After reviewing the submissions,2 regulations, history, and practice of administrative closure, the Attorney General concluded that “immigration judges and the Board lack a general authority to grant administrative closure.” Id. at 282. In so doing, the Attorney General overruled the BIA‘s contrary decisions in Matter of Avetisyan and Matter of W-Y-U-. Id. at 271. The parties and amici, the Attorney General observed, “agree that no statute or regulation explicitly delegates general administrative-closure authority.” Id. at 284. But some amici, and the BIA in Matter of Avetisyan, inferred a delegation from
II. DISCUSSION
Against this backdrop, Arcos Sanchez asks for administrative closure to renew his application under the Deferred Action for Childhood Arrivals program. The BIA found that his claim was “squarely controlled by Matter of Castro-Tum.” (A.R. at 4.) Arcos Sanchez and the majority respond that Matter of Castro-Tum should not control at all, because the Attorney General‘s reading of the pertinent federal regulations—namely
I agree with the majority that when interpretation becomes challenging, we do not “throw up our hands and let regulatory agencies do it for us.” Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 707 (1991) (Scalia, J., dissenting); see also Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (stating that “a court cannot wave the ambiguity flag just because it found the regulation impenetrable on first read“). But respectfully, after exhausting “all the traditional tools of construction,” I do not agree that the majority‘s interpretation supplies the best ordinary understanding of these regulations. Kisor, 139 S. Ct. at 2415 (internal quotation marks omitted); Jaroslawicz v. M&T Bank Corp., 962 F.3d 701, 710–11 (3d Cir. 2020) (“[A]s with statutory interpretation, our review of a regulation centers on the ordinary meaning of the text.“).
A. Reading 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)
IJs exercise only “the powers and duties delegated to them by the [Immigration and Nationality] Act and by the Attorney General through regulation.”
Like the BIA in Matter of Avetisyan—which Matter of Castro-Tum overruled—the majority points to
Focusing on the phrases “any action” and “appropriate and necessary,” the majority concludes that section 1003.10(b) “include[s] . . . actions such as administrative closure, which often facilitate . . . case resolution.” Maj. Op. at 14 (quoting Romero, 937 F.3d at 292). That is because, the majority notes, “[i]n case after case, [courts] have given effect to th[e] expansive sense of ‘any.‘” Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1756 (2019) (Alito, J., dissenting). So too, it argues, with the phrase “appropriate and necessary,” which is a “broad and all-encompassing term,” White Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222, 1266 (D.C. Cir. 2014) (Kavanaugh, J., concurring in part and dissenting in part).
Fair enough. But those phrases, broad or not, are not best understood to render section 1003.10(b) without limitation and provide IJs nearly unfettered discretion. To the contrary, “appropriate and necessary” is itself an important restriction on the scope of the Attorney General‘s delegation, and one that comes with some bite. A point made in the same paragraph of the same opinion the majority cites. See Maj. Op. at 15 (citing Michigan v. EPA, 576 U.S. 743, 752 (2015)). As the Michigan Court explained, “[a]lthough th[e] term [“appropriate“] leaves agencies with flexibility,” its discretion is not unlimited: “[A]n agency may not ‘entirely fai[l] to consider an important aspect of the problem‘” its regulations task it with solving. 576 U.S. at 752 (quoting Motor Vehicle Mfrs. Ass‘n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). “Appropriate and necessary” is thus “not a mere formality, but . . . a plainly expressed limitation.” Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964).
Nor is it true that “[n]othing in §§ 1003.10 or 1003.1(d)(1)(ii) suggests any limiting parameters on what may be considered ‘appropriate and necessary.‘” Maj. Op. at 15 n.5. Section 1003.10(b), after all, does not permit IJs to take “any action” so long as it is “appropriate and necessary.” Rather, IJs may take “any action” that is “appropriate and necessary for the disposition of” “the individual cases before them.”
And there is meaning to this “disposition” requirement. The Attorney General‘s regulations do not define “disposition,” but that is the usual occasion to reach for our “toolkit” containing “all the standard tools of interpretation” used to “carefully consider the text, structure, history, and purpose” of the regulation. Kisor, 139 S. Ct. at 2414–15 (internal quotation marks and alteration omitted). That allows us to “‘reach a conclusion about the best interpretation,’ thereby resolving any perceived ambiguity.” Shular v. United States, 140 S. Ct. 779, 788 (2020) (Kavanaugh, J., concurring) (quoting Kisor, 139 S. Ct. at 2448 (Kavanaugh, J., concurring in the judgment)).
And the ordinary meaning of “disposition” is that of “[a] final settlement or determination.” Black‘s Law Dictionary 505 (8th ed. 2004); see also Merriam-Webster‘s Collegiate Dictionary 361 (11th ed. 2005) (“final arrangement“); The American Heritage Dictionary 522 (4th ed. 2009) (“[a] final settlement“).5 Section 1003.10(b) is thus best understood to limit IJs to actions that are “appropriate and necessary” for the final resolution of the cases before them—not for actions merely facilitating the “efficient management of the resources of the immigration courts and the BIA.” Romero, 937 F.3d at 289 (cleaned up). That follows the construction given the term by various courts in many contexts over several decades.6 As the D.C. Circuit once put it: “After hearing argument, judges frequently tell the parties that they will advise them of the disposition of the matter. We expect that litigants, including the parties to this appeal, would be both surprised and puzzled if all we told them at the end of the day was that ‘the case has been decided‘—without telling them what that decision was.” Pub. Citizen, Inc. v. HHS, 332 F.3d 654, 663 (D.C. Cir. 2003).
To be sure, we do not “construe the meaning of statutory terms in a vacuum,” Tyler v. Cain, 533 U.S. 656, 662 (2001), but interpret the words of a statute or regulation “in their context and with a view to their place in the overall statutory scheme,” Davis v. Mich. Dep‘t of Treasury, 489 U.S. 803, 809 (1989). So we “extend[] our gaze from the narrow [regulatory] provision at issue to take in the larger [regulatory] landscape.” Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1722 (2017). That scheme confirms the ordinary understanding of “disposition” because sections 1003.10(b) and 1003.1(d)(1)(ii) delegate authority to take only actions that further the actual resolution of cases. After recognizing that IJs may take “appropriate and necessary” actions, for example, section 1003.10(b) concludes by directing IJs to ”resolve the questions before them in a timely and impartial manner consistent with the [INA] and regulations.” (emphases added). Section 1003.1(d)(1) provides the same. And
B. Administrative Closures Are Not “Dispositions” of Cases
All this persuades me that section 1003.10(b) does not give IJs the authority to delay, perhaps forever, in deciding a case. For, as the majority agrees, “administrative closure” does not lead to resolution. See Maj. Op. at 7 (“‘The administrative closing of a case does not result in a final order,’ but ‘is merely an administrative convenience which allows the removal of cases from the calendar in appropriate situations.‘” (quoting Matter of Amico, 19 I. & N. Dec. at 654 n.1)). It is, rather, “the antithesis of [it].” Matter of Castro-Tum, 27 I. & N. Dec. at 285.
The mechanics of administrative closure itself make this clear. Once a case is administratively closed, it is “remove[d] . . . from an Immigration Judge‘s active calendar.” Matter of Avetisyan, 25 I. & N. Dec. at 692. The BIA has described this as “temporar[y].” Id. That seems overly optimistic: “Unless a party ‘move[s] to recalendar [an administratively closed case] bеfore the Immigration Court . . . or to reinstate the appeal before the Board,’ the case remains indefinitely suspended without a final resolution.” Matter of Castro-Tum, 27 I. & N. Dec. at 272–73 (quoting Matter of Avetisyan, 25 I. & N. Dec. at 692). The case disappears from the docket, the IJ no longer tracks it, and “the alien respondent in most cases has few incentives to seek to recalendar because ‘as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.‘” Id. at 273 (quoting INS v. Doherty, 502 U.S. 314, 323 (1992)).
But we need not speculate. Since 1980, less than a third of cases administratively closed have even returned to the calendar. Id. Far from “disposing” of cases, administrative closure usually leads to no resolution at all. No doubt that is more “administrative[ly] convenien[t]” for the IJ and BIA. Maj. Op. at 6–7 (quoting Matter of Gutierrez-Lopez, 21 I. & N. Dec. at 480). But it is not an action encompassed within the Attorney General‘s delegation of authority in sections 1003.10(b) and 1003.1(d)(1)(ii).
C. Nor Are Administrative Closures “Appropriate and Necessary” For Their Disposition
Arcos Sanchez and the majority take a different tack, reasоning that even if administrative closure does not itself “dispos[e]” of a case, it may be “appropriate and necessary” because it leads to the matter‘s “disposition.” Respectfully, I am not persuaded.
Arcos Sanchez points to the facts of Matter of Avetisyan, which he argues prove how, counterintuitively, administrative closure can “expedite . . . a final disposition” of his, and others‘, cases. (Opening Br. at 18 (quoting Romero, 937 F.3d at 294 n.13).)7 As he describes it, in Matter of Avetisyan, despite several continuances, the petitioner‘s “immigration file [was] shuttled back and forth between USCIS and the Office of Chief Counsel, which in turn prevented USCIS from completing its adjudication of her visa petition.” (Opening Br. at 19.) Frustrated, the IJ administratively closed the petitioner‘s proceedings; this “provid[ed] USCIS an uninterrupted period to adjudicate the petition.” (Opening Br. at 19.) Powerful evidence, it seems, that DHS should improve its intra-agency communications, perhaps at the direction of Congress. But too light a breeze to propel a vast delegation of general administrative closure authority.
The majority, in turn, maintains that administrative closure may be “appropriate and necessary” to halt removal proceedings while awaiting a decision from another adjudicatory body. As the majority puts it, “certain removal cases require resolution of questions that depend upon decisions from other tribunals or agencies over which neither the IJ nor the Board controls.” Maj. Op. at 20. So, “[w]ithout the general authority to administratively close appropriate cases when necessary,” it complains, “the IJs and the Board may not have a sufficiently developed record and may be less effective in managing cases.” Maj. Op. at 20.
This concern does not escape me; it would be “absurd indeed that [a petitioner] should be ordered removed because,” for example, “the file needed for one DHS office to adjudicate his [or her] I-130 petition was being held by a different DHS office, which succeeded in removing [the petitioner] because the first DHS office had failed to adjudicate the petition.” Hashmi v. Att‘y Gen., 531 F.3d 256, 261 (3d Cir. 2008). But thankfully, that is not the situation we, or Arcos Sanchez, face. Far from “fail[ing] to acknowledge the fact that allowing time for the IJ or the Board to receive the outcome from another tribunal or agency enables resolution of relevant questions,” Maj. Op. at 20, the Attorney General has already given IJs a tool for managing these exact circumstances—where, “in the interests of justice and fairness to the parties, [it may be] prudent to defer further action for some period of time,” Matter of Avetisyan, 25 I. & N. Dec. at 691. That tool, of course, is a continuance, and IJs may grant them “for good cause shown.”
III. CONCLUSION
Presumably, the scope of our decision today is limited. As the majority notes, DOJ issued a final rule largely resolving this interpretive dispute. Perhaps the arguments offered by Arcos Sanchez deserve closer attention by those charged with writing the law. But whatever the wisdom or folly of Matter of Castro-Tum as a matter of immigration policy, it is correct as a matter of interpretation. Administrative closure is a device only “created for the convenience of the Immigration Courts and the Board.” Matter of Avetisyan, 25 I. & N. Dec. at 690. As it finds no footing in section 1003.10(b) and section 1003.1(d)(1)(ii), I respectfully dissent.
not best understood to render section 1003.10(b) without limitation and provide IJs nearly unfettered discretion. To the contrary, ‘appropriate and necessary’ is itself an important restriction on the scope of the Attorney General‘s delegation, and one that comes with some bite.“). To that end, the dissent criticizes our example of an immigration adjudication prevented by the shuttling of a file back and forth between USCIS and the Office of Chief Counsel, calling such evidence “too light a breeze to propel a vast delegation of general administrative closure authority.” (Dissent at 15.) But the question before us is not whether the regulations endow IJs and the BIA with a “vast delegation of general аdministrative closure authority.” It is whether they entirely foreclose IJs or the BIA from ever exercising some degree of discretion to administratively close a case, as the Attorney General decided in Castro-Tum. Thus, the dissent‘s characterization of “administrative closure” as “the antithesis of a final disposition” does not convince us that Castro-Tum was correctly decided. (Dissent at 7 (quoting Castro-Tum, 27 I. & N. Dec. at 285). See, e.g., Lexon Ins. Co. v. Naser, 781 F.3d 335, 338 (6th Cir. 2015) (“A disposition is ‘a final settlement or determination.‘” (quoting Black‘s Law Dictionary 572 (10th ed. 2014))); United States v. Jarrell, 147 F.3d 315, 317 n.2 (4th Cir. 1998) (writing that “[a] ‘disposition’ is ‘[t]he final settlement of a matter‘” and it “does not encompass the ongoing effects of a ruling by the court” (quoting Black‘s Law Dictionary 326 (Abridged 6th ed. 1991))); Ruggieri v. Warner & Swasey Co., 938 F.2d 322, 324 (1st Cir. 1991) (“The term ‘disposition’ connotes ‘finality[.]‘“); Campbell Indus., Inc. v. Offshore Logistics Int‘l, Inc., 816 F.2d 1401, 1404 (9th Cir. 1987) (stating that to “dispose of” a motion, a court must act in a way that “indicаtes an intention that the act be final“).