ANTONIO LUNA GARCIA v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL
No. 20-1641
United States Court of Appeals FOR THE SECOND CIRCUIT
MARCH 31, 2023
AUGUST TERM 2021
Before: WALKER, NARDINI, and MENASHI, Circuit Judges.
20-1641-ag
Garcia v. Garland
In the United States Court of Appeals FOR THE SECOND CIRCUIT
On Petition for Review of an Order of the Board of Immigration Appeals
ARGUED: SEPTEMBER 14, 2021
DECIDED: MARCH 31, 2023
BIBIANA C. ANDRADE, New York, NY, for Petitioner.
COLIN
MENASHI, Circuit Judge:
Antonio Luna Garcia petitions for review of a decision of the Board of Immigration Appeals (“BIA“) affirming the denial of his request for administrative closure of his removal proceedings. The agency relied on Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018), a then-controlling decision of the Attorney General that prohibited administrative closure. The Attorney General subsequently overruled that decision and revised the agency‘s position. See Matter of Cruz-Valdez, 28 I. & N. Dec. 326 (A.G. 2021). We deny the petition for review. First, we hold that an agency does not abuse its discretion by relying on an interpretation of its regulations that is controlling at the time of its decision—even if the agency subsequently revises that interpretation—as long as it reflects a reasonable interpretation of the regulations. Second, we conclude that the regulations in this case are at least ambiguous with respect to the availability of administrative closure and that Matter of Castro-Tum expressed a reasonable interpretation of the regulations that is entitled to deference. Third, we agree with the BIA that Matter of Castro-Tum did not authorize administrative closure in this case.
Petitioner Antonio Luna Garcia seeks review of a decision of the Board of Immigration Appeals (“BIA” or the “Board“) affirming the denial of his request for administrative closure of his removal proceedings. In denying the request, the agency relied on Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018), a then-controlling decision of the Attorney General that held that the regulations governing immigration adjudications did not allow immigration judges or the BIA to apply administrative closure except in narrow circumstances. The Attorney General has since overruled Matter of Castro-Tum. See Matter of Cruz-Valdez, 28 I. & N. Dec. 326 (A.G. 2021). As a result, this appeal presents the question of whether an agency abused its discretion when it relied on an interpretation of its regulations that was controlling at the time of its decision but that the agency has since modified. Even if it was not an abuse of discretion to apply an agency interpretation that has since changed, Garcia argues that Matter of Castro-Tum conflicted with the regulations it purported to interpret, and therefore the agency erred in applying that interpretation at any time. Garcia further argues, in the alternative, that even if Matter of Castro-Tum reflected a reasonable interpretation of the regulations, it nevertheless permitted administrative closure in his case. The agency, he argues, incorrectly interpreted Matter of Castro-Tum when it held otherwise.
We deny the petition for review. First, we hold that an agency does not abuse its discretion by relying on an interpretation of its regulations that is controlling at the time of its decision—even if the agency subsequently revises that interpretation—as long as it reflects a reasonable interpretation of the regulations. Second, we conclude that the regulations in this case are at least ambiguous with respect to the availability of administrative closure and that Matter of Castro-Tum expressed a reasonable interpretation of the regulations that is entitled to deference. Third, we agree with the BIA that Matter of Castro-Tum did not authorize administrative closure in this case.
BACKGROUND
I
An immigration judge (“IJ“) conducts removal proceedings to determine whether an alien is “removable from the United States.”
No statute or regulation expressly authorizes IJs or the BIA to employ administrative
In 1990, the BIA held that “the administrative closing procedure should not be used if it is opposed by either party to the proceedings.” Matter of Munoz-Santos, 20 I. & N. Dec. 205, 207 (BIA 1990); see also Matter of Gutierrez-Lopez, 21 I. & N. Dec. 479, 480 (BIA 1996) (“A case may not be administratively closed if opposed by either of the parties.“). The BIA did not further address administrative closure between 1996 and 2012.1 It revised its position in Matter of Avetisyan, in which the BIA decided that the limitations its precedent put on the use of administrative closure “directly conflict[ed] with the delegated authority of the Immigration Judges and the Board and their responsibility to exercise independent judgment and discretion in adjudicating cases and to take any action necessary and appropriate for the disposition of the case.” 25 I. & N. Dec. at 693. In place of its previous rule, the BIA decided that IJs or the BIA should “weigh all relevant factors” when considering a request for administrative closure. Id. at 696. Five years later, in Matter of W-Y-U-, the BIA narrowed this holding. In that case, the Department of Homeland Security requested administrative closure, but the alien objected because it would have prevented him from pursuing his asylum application. See 27 I. & N. Dec. at 17. The BIA sided with the alien, clarifying that, when a party opposes administrative closure, “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.” Id. at 20.
The next year, in Matter of Castro-Tum, the Attorney General overruled Matter of Avetisyan and Matter of W-Y-U-.2 Attorney General Sessions said that Matter of Avetisyan departed from “decades” of precedent limiting administrative closure. 27 I. & N. Dec. at 273. He explained that “[g]rants of general authority to take
After the decision of the BIA in this case, the Attorney General overruled Matter of Castro-Tum. Attorney General Garland said that he had “determined that it is appropriate to overrule Attorney General Sessions‘s opinion in Castro-Tum” because it “departed from long-standing practice” and had been rejected by some courts. Matter of Cruz-Valdez, 28 I. & N. Dec. at 328-29. He explained that the Department of Justice had effectively codified Castro-Tum by regulation,3 but the Department was reconsidering those regulations, and while “the reconsideration proceeds and except when a court of appeals has held otherwise, immigration judges and the Board should apply the standard for administrative closure set out in Avetisyan and W-Y-U-.” 28 I. & N. Dec. at 329.
II
Antonio Luna Garcia wants to become a lawful permanent resident of the United States. But in March 2014, Garcia was served with a notice to appear before an IJ because of his illegal entry and presence in the United States since 1999. The notice to appear informed Garcia that he was subject to removal under
After Garcia received the notice to appear, his wife—a U.S. citizen—filed an I-130 Petition for Alien Relative. U.S. Citizenship and Immigration Services (“USCIS“) approved that petition, thereby establishing that Garcia is the husband of a U.S. citizen. Establishing this sort of family relationship is the first step to obtaining lawful permanent resident status. See
Garcia did not believe that he could be approved for an I-601A waiver while he was also subject to ongoing removal proceedings. DHS regulations provide that “an alien is ineligible for a provisional unlawful presence waiver ... if ... [t]he alien is in removal proceedings, in which no final order has been entered, unless the removal proceedings are administratively closed and have not been recalendared at the time of filing the application for a provisional unlawful presence waiver.”
The IJ declined to order either a continuance or administrative closure in Garcia‘s case. The IJ denied Garcia‘s request for a continuance “because no good cause has been established for the requested continuance.” J. App‘x 28. The IJ also declined to grant Garcia administrative closure because, in light of Matter of Castro-Tum, administrative closure was “no longer an option in this case.” Id. Garcia appealed to the BIA.
The BIA affirmed the IJ‘s denial of administrative closure because “[t]he Attorney General has explicitly held that the Board and the Immigration Judges lack the general authority to administratively close cases.” Id. at 9 (citing Matter of Castro-Tum, 27 I. & N. Dec. at 278 n.3, 287 n.9). The BIA additionally stated that
Garcia petitioned for review of the BIA‘s decision.
DISCUSSION
We review the denial of administrative closure for abuse of discretion. Mi Young Lee v. Lynch, 623 F. App‘x 33, 34 (2d Cir. 2015); see also Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006) (reviewing the denial of a motion for a continuance for abuse of discretion). The agency abuses its discretion when its decision “rests on an error of law ... or a clearly erroneous factual finding or ... cannot be located within the range of permissible decisions.” Morgan v. Gonzales, 445 F.3d 549, 551-52 (2d Cir. 2006).
In this appeal, we consider (1) whether the agency‘s subsequent overruling of Matter of Castro-Tum renders its previous reliance on that decision an abuse of discretion; (2) if not, whether Matter of Castro-Tum represented a reasonable interpretation of the applicable regulations; and (3) whether the agency misapplied Matter of Castro-Tum in holding that it precluded Garcia from obtaining administrative closure. We address each question in turn.
I
Since the BIA issued its decision in this case, the Attorney General has supplanted Matter of Castro-Tum with a new interpretation of the applicable regulations, set forth in Matter of Cruz-Valdez. 28 I. & N. Dec. at 329. The government argues, however, that the BIA “reasonably relied upon Matter of Castro-Tum—at a time when it was still good law—to deny Petitioner‘s administrative closure request.” Letter at 2, Garcia v. Garland, No. 20-1641, ECF No. 76 (2d Cir. Sept. 17, 2021). In the government‘s view, “the agency does not abuse its discretion by relying on precedent that is controlling at the time it renders its decision,” and for that reason “the BIA did not abuse its discretion by citing Matter of Castro-Tum as one ground for denying Petitioner‘s request for administrative closure.” Id. at 1-2. We agree.
An agency has not abused its discretion when it relied on an agency interpretation—such as the BIA‘s reliance on Matter of Castro-Tum—that was valid and applicable at the time the agency rendered its decision. Admittedly, that is not how the overturning of precedent works in the judicial system. “Because a judicial overruling is a reinterpretation of existing law, it typically takes effect immediately; the Court‘s new interpretation will apply to all pending disputes, including those arising out of events that pre-dated the new opinion.”6
Under Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), and related cases, a court does not treat an agency‘s overruling of its own prior interpretation as if it were a judicial reinterpretation of existing law. Rather, when an agency reinterprets an ambiguous statutory provision, it is making policy within the bounds of discretion that Congress has conferred on the agency by statute. “[A] statute‘s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps,” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000), and “the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency,” Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742 (1996). That is because filling statutory gaps “involves difficult policy choices that agencies are better equipped to make than courts.” Nat‘l Cable & Telecomms. Ass‘n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005).
The policy choices of an agency need not remain static. As the Supreme Court explained in Chevron, “an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration‘s views of wise policy to inform its judgments.” Chevron, 467 U.S. at 865. Thus, “[w]ithin the limits of the text,” an agency‘s interpretation “might rest on a political judgment, which different administrations might legitimately make in different
Judicial deference to an agency‘s interpretation of its own regulations implicates these same considerations. In Kisor v. Wilkie, 139 S. Ct. 2400 (2019), the Supreme Court reaffirmed its holding in Auer v. Robbins, 519 U.S. 452 (1997), that such deference is appropriate. The Court explained that “the core theory of Auer deference is that sometimes the law runs out, and policy-laden choice is what is left over.” Kisor, 139 S. Ct. at 2415; see also id. at 2413 (plurality opinion) (“[T]he presumption that Congress intended Auer deference stems from the awareness that resolving genuine regulatory ambiguities often entails the exercise of judgment grounded in policy concerns.“) (internal quotation marks and alteration omitted).
Because an agency interpretation of its regulations may reflect policy judgment, the interpretation may vary at different times—especially between different administrations—without casting doubt on the validity of the interpretation at either time. Indeed, in this case, whatever authority the BIA had to decide the issues before it was “[s]ubject to the[] governing standards” set out in
For these reasons, the decision of the BIA cannot be invalidated simply because it relied on a regulatory interpretation that the agency subsequently
II
The key question in this case is whether the agency abused its discretion by relying on Matter of Castro-Tum. See Morgan, 445 F.3d at 551-52. Such reliance would amount to an abuse of discretion if the regulatory interpretation reflected in Matter of Castro-Tum “rest[ed] on an error of law.” Id. at 551. Matter of Castro-Tum would reflect a legal error if it either (1) interpreted unambiguous regulatory language incorrectly or (2) interpreted ambiguous regulatory language unreasonably. See Kisor, 139 S. Ct. at 2415 (“If uncertainty does not exist, there is no plausible reason for deference. ... If genuine ambiguity remains, moreover, the agency‘s reading must still be reasonable.“).
We conclude that the regulations considered in Matter of Castro-Tum are at least ambiguous and that the Attorney General‘s interpretation was reasonable. The BIA did not abuse its discretion by following that interpretation.
A
We defer to an agency‘s reasonable interpretation of its own regulations only if those regulations are “genuinely ambiguous.” Kisor, 139 S. Ct. at 2414; see also Bey v. City of New York, 999 F.3d 157, 166 (2d Cir. 2021) (declining to defer to an interpretation of unambiguous regulations). We have noted that the language in a statute or regulation is ambiguous if it is “reasonably susceptible” to two or more readings. In re Med Diversified, Inc., 461 F.3d 251, 255 (2d Cir. 2006).11 We do not interpret the language in isolation. Rather, we look to “the language itself, the specific context in which that language is used, and the broader context of the statute” or the regulation “as a whole.” Union Carbide Corp. v. CIR, 697 F.3d 104, 107 (2d Cir. 2012) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). We “must read the words in their context and with a view to their place in the overall statutory [or regulatory] scheme” because we construe statutes and regulations, “not isolated provisions.” Cuthill v. Blinken, 990 F.3d 272, 279 (2d Cir. 2021).
We conclude that the regulations at issue here are at least ambiguous as to the permissibility of administrative closure. At the time of the BIA‘s decision affirming the IJ‘s denial of administrative closure,
(i) The Board shall be governed by the provisions and limitations prescribed by applicable law, regulations, and procedures, and by decisions of the Attorney General (through review of a decision of the Board, by written order, or by determination and ruling pursuant to section 103 of the [Immigration and Nationality] Act).
(ii) Subject to these governing standards, Board members 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.
(b) Powers and duties. 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.
...
(d) Governing standards. Immigration judges shall be governed by the provisions and limitations prescribed by the Act and this chapter, by the decisions of the Board, and by the Attorney General (through review of a decision of the Board, by written order, or by determination and ruling pursuant to section 103 of the Act).
Some courts have concluded that the “any action” and “appropriate and necessary” language in
We disagree. The regulations do not unambiguously permit administrative closure. The text of
Another court has reached a similar conclusion. The Sixth Circuit has explained that “[a]dministrative closure typically is not an action taken ‘[i]n deciding’ a case before an IJ; instead, it is typically a decision not to decide the case. Nor is administrative closure typically an action ‘necessary for the disposition’ of an immigration case. Administrative closure is not itself a ‘disposition’ of a case.” Hernandez-Serrano v. Barr, 981 F.3d 459, 463 (6th Cir. 2020). Thus, “because the practice by design prevents the IJ from making any disposition in the case,” the Sixth Circuit has held that “Section 1003.10 hardly provides general authority for such a practice.” Id. This reading is not unambiguously foreclosed by the regulations.
B
Because the regulations are at least ambiguous, we consider the reasonableness of the Attorney General‘s interpretation in Matter of Castro-Tum. We defer to a reasonable interpretation of ambiguous regulations as long as that interpretation reflects the agency‘s “fair and considered judgment” and its “authoritative or official position” on a matter that “implicate[s] its substantive expertise.” Kisor, 139 S. Ct. at 2416-17 (internal quotation marks omitted). We do not defer to an interpretation that represents “a convenient litigating position or a post hoc rationalization advanced by an agency seeking to defend past agency action against attack.” Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012) (internal quotation marks, citations, and alteration omitted).
The interpretation reflected in Matter of Castro-Tum was articulated by
We conclude that the Attorney General‘s interpretation of the regulations in Matter of Castro-Tum was reasonable. As noted above, the phrases “any action” and “appropriate and necessary,” read in context, are respectively modified by “subject to the applicable governing standards” and “for the disposition of such cases.”
The Attorney General reasonably interpreted the regulations as not authorizing administrative closure, and the BIA and the IJ permissibly relied on that interpretation in declining to grant Garcia administrative closure.12 When the Attorney General decided that the regulations did not authorize administrative closure, the BIA
III
Garcia argues that even accepting that Matter of Castro-Tum bound the agency in this case, that decision allowed the IJ or the BIA to grant his request for administrative closure. Garcia points to the DHS regulation governing eligibility for a provisional unlawful presence waiver. That regulation provides an exception to an alien‘s ineligibility for such a waiver if the alien‘s “removal proceedings are administratively closed and have not been recalendared at the time of filing the application for a provisional unlawful presence waiver.”
But IJs and the BIA are delegates of the Attorney General, not the Secretary of Homeland Security. See
CONCLUSION
The agency did not abuse its discretion when it relied on the Attorney General‘s opinion in Matter of Castro-Tum to decline to grant Garcia administrative closure. We deny the petition for review.