YEISON MEZA MORALES, Petitioner, v. WILLIAM P. BARR, Attorney General of the United States, Respondent.
No. 19-1999
United States Court of Appeals For the Seventh Circuit
ARGUED APRIL 7, 2020 — DECIDED JUNE 26, 2020
Petition for Review of an Order of the Board of Immigration Appeals. No. A216-222-551
Before ROVNER, HAMILTON, and BARRETT, Circuit Judges.
Meza Morales petitioned us for review of the removal order. He contends that the immigration judge’s initial waiver of both grounds of inadmissibility precluded their use as grounds for an order of removal. We disagree; Meza Morales’s position would effectively turn the inadmissibility waiver into a substitute for the U visa itself. We nevertheless grant his petition for review on two other bases. Meza Morales had asked the immigration judge to continue or administratively close his case instead of ordering removal. The immigration judge entered the removal order based on the conclusion that those alternative procedures were inappropriate, and the Board affirmed on the same basis. But those alternatives were wrongly rejected. We grant the petition for review and remand the case so that the Board can reconsider.
I.
A noncitizen who becomes a victim of certain crimes while in the United States may petition for U nonimmigrant status—more commonly known as a U visa.
The decision whether to grant a U visa petition is committed by statute to the Secretary of Homeland Security, who exercises this authority through U.S. Customs & Immigration Services (USCIS). See
In addition to those specific requirements, a noncitizen seeking a U visa must be “admissible” to the United States—in other words, eligible for a visa and lawful entry into the United States.
But inadmissibility is not a complete obstacle to acquiring a U visa; a noncitizen can apply to have her inadmissibility waived for the purpose of petitioning for U nonimmigrant status. In this circuit, there are two ways for a U visa petitioner to secure a waiver of inadmissibility. The first is by application to USCIS. Congress provided that the Secretary of Homeland Security can waive almost any ground of inadmissibility for a noncitizen who is applying for a U visa.
U visa petitioners in this circuit have an additional option for obtaining a
But before we get to the procedural posture of Meza Morales’s case, another feature of the U visa scheme bears mention: the waiting list. By statute, USCIS may issue no more than 10,000 U visas per calendar year.
With the U visa scheme laid out, we turn to the present case. Meza Morales is a native and citizen of Mexico. As a child, he entered the United States without inspection in December 2002, and he has lived in the United States ever since. In October 2013, Meza Morales was walking home through his neighborhood in Indianapolis when he encountered a group of men arguing. He ran from them, but one of the men shot him in the ankle while he was running. Meza Morales recovered from the shooting and cooperated in the police investigation that followed.
As a shooting victim, Meza Morales applied for a U visa in August 2017. But before USCIS acted on his U visa petition,
Meza Morales appealed to the Board of Immigration Appeals, arguing that the removal order was inconsistent with the waiver and that the immigration judge should have entered a continuance or administrative closure. The Board affirmed the removal order, and soon ICE began the process of removing Meza Morales. He applied to our court for an emergency stay of removal, which we granted. Then, collateral to the removal proceedings, USCIS adjudicated his U visa petition. The office deemed him eligible for a U visa but placed him on the waiting list due to the statutory cap. It then granted Meza Morales deferred action, and accordingly, released him from detention. The removal order remains on the books, though, and Meza Morales continues to petition our court for review of it.
II.
Before we can assess the merits of Meza Morales’s petition, we must assure ourselves of our jurisdiction. By statute, we have jurisdiction to address questions of law raised in a petition for review from a final removal order.
Federal court jurisdiction is limited to the resolution of “Cases” and “Controversies.”
The government misunderstands both the relief that Meza Morales requests and the effect of his U visa adjudication. The crux of Meza Morales’s appeal is that the immigration judge was wrong to order him removed instead of granting a con-tinuance or administrative closure. The relief that he has requested all along is vacatur of the removal order. It is still possible for us to grant that relief because the removal order remains in place. By regulation, favorable
True, Meza Morales may not in fact be removed anytime soon because it is ICE policy not to remove a noncitizen who is placed on the U visa waiting list and granted deferred action. ICE Fact Sheet. But protection from removal is not guaranteed. USCIS retains discretion to remove him from the waiting list and withdraw his deferred action.
III.
Meza Morales raises three challenges to the Board’s decision affirming the order of removal. First, he contends that it is logically inconsistent for an immigration judge to enter a removal order on the same grounds of inadmissibility that the immigration judge has already waived. Second, he argues that the Board misapplied relevant precedents in considering whether another continuance was warranted. And third, he asserts that the Board was wrong to hold that immigration judges lack the power to administratively close cases. We address each argument in turn.
A.
Meza Morales first argues that it is legal error to enter a removal order after granting a waiver of inadmissibility under
Meza Morales’s position has superficial appeal. It leans on the intuition that waivers of inadmissibility generally “relieve applicants of the effects of past conduct.” L.D.G., 744 F.3d at 1028. If Meza Morales has been relieved of the effects of his past conduct, then one might think it contradictory that he can be removed on the basis of that same conduct. But in Meza Morales’s case, there is no contradiction between the two. A waiver of inadmissibility granted in a removal proceeding protects a noncitizen from removal only if the noncitizen otherwise has lawful immigration status—for example, if she has a visa or the status of lawful permanent resident. In that event, the waiver clears the only obstacle to the noncitizen’s lawful presence. Meza Morales, however, has no lawful immigration status; he is still waiting on a U visa. For him, the § 1182(d)(3)(A) waiver is a necessary but insufficient step toward lawful presence.
This makes his situation relatively unique. As we have already explained, our circuit allows immigration judges to grant waivers of inadmissibility under § 1182(d)(3)(A) to U visa petitioners in removal proceedings. See L.D.G., 744 F.3d at 1022. There is essentially no other situation in which an immigration judge would
The waiver works the same way in the cases that Meza Morales invokes to support his position. He points out that in the context of other types of inadmissibility waivers, the Board has understood the grant of a waiver to foreclose removal. See Matter of Balderas, 20 I. & N. Dec. 389 (B.I.A. 1991); Matter of Mascorro-Perales, 12 I. & N. Dec. 228 (B.I.A. 1967); Matter of Edwards, 10 I. & N. Dec. 506 (B.I.A. 1963). Each of these cases involved a lawful permanent resident threatened with removal due to a conviction for crimes involving moral turpitude; in each, the Board terminated the removal proceedings after granting a waiver of inadmissibility, reasoning that “a waiver, once granted, should remain valid indefinitely for all proceedings, including both deportations and exclusion proceedings.” Balderas, 20 I. & N. Dec. at 393; see id. at 390 n.1 (explaining that a lawful permanent resident may pursue certain waivers of inadmissibility at removal if the grounds of removal are also grounds of inadmissibility). But in each of these cases, the waiver foreclosed removal because it protected the noncitizen’s status as a lawful permanent resident. The waiver was not itself the basis for lawful presence.
Meza Morales is differently situated because he lacks lawful immigration status. Being “relieved of the effects of [his] past conduct” renders Meza Morales eligible for a visa. But until he secures one, he still lacks a legal basis for lawful presence in the United States. Rather than protecting his status, the waiver is a step on the road to obtaining it.
Ignoring that distinction, Meza Morales urges us to interpret a § 1182(d)(3)(A) waiver as effectively making him unremovable. But his interpretation is at odds with the U visa provision, which makes clear that it is the visa, not the waiver, that confers status on a noncitizen.
This understanding is consistent with L.D.G. In that case, we explained that a
B.
The case does not end here. Recall that Meza Morales asked the immigration judge to continue or administratively close his case instead of ordering removal. Meza Morales argues that both procedural options were wrongly rejected.3
We’ll start with the continuance. When it declined to continue Meza Morales’s case, the Board cited to what was then its leading precedential opinion on U visa continuances, Matter of Sanchez Sosa, 25 I. & N. Dec. 807 (B.I.A. 2012).4 Meza Morales argues that the Board failed to properly apply the factors laid out in that opinion.
The government initially responded that the Board had been correct to deny the continuance. But after the briefs in this case were filed, the government asked us to remand this claim to the Board to allow it to consider two relevant new opinions. After the Board rendered its decision in this case, it issued a precedential opinion in Matter of Mayen, 27 I. & N. Dec. 755 (B.I.A. 2020), clarifying the application of the factors in Sanchez Sosa. A few months later, our court issued a decision in Guerra Rocha v. Barr, 951 F.3d 848, 853 (7th Cir. 2020), in which we emphasized that prima facie eligibility for a U visa was the most important factor to consider in deciding whether to grant a continuance. The government asks that we grant Meza Morales’s petition for review as to the continuance to allow the Board to apply those new precedents for the first time. Meza Morales does not object. We agree that the Board should be given the opportunity to apply Mayen and Guerra Rocha in the
C.
Meza Morales has a final objection to the Board’s decision. In his removal proceedings, he had alternatively urged the immigration judge to administratively close his case rather than order removal. Administrative closure is a procedural device that temporarily takes a removal case off of an immigration judge’s calendar, preventing it from moving forward. Vahora v. Holder, 626 F.3d 907, 914 (7th Cir. 2010). Until recently, immigration judges used the procedural tool of administrative closure for a variety of reasons, including to permit a noncitizen to pursue alternative relief—such as a U visa—from USCIS. The use of administrative closure was blessed and clarified in Matter of Avetisyan, 25 I. & N. Dec. 688 (B.I.A. 2012), and Matter of W-Y-U-, 27 I. & N. Dec. 17 (B.I.A. 2017). But in Matter of Castro-Tum, the Attorney General employed administrative adjudication to overrule Avetisyan and hold that immigration judges and the Board lack the authority to administratively close cases “except where a previous regulation or settlement agreement has expressly conferred it.” 27 I. & N. Dec. 271, 283 (Att‘y Gen. 2018). The immigration judge in this case held that he was bound by Castro-Tum to reject Meza Morales’s request for administrative closure, and the Board affirmed that conclusion.
We typically review the denial of administrative closure for abuse of discretion. Vahora, 626 F.3d at 919. Here, though, Meza Morales challenges the legal conclusion that administrative closure is disallowed, not the discretionary decision to deny closure. Abuse of discretion is therefore not the appropriate standard of review in this case. Although the Board’s decision in Meza Morales’s case was unpublished and nonprecedential, the Board and the immigration judge based their rulings on Castro-Tum, a precedential opinion authored by the Attorney General. It is therefore the legal interpretation in Castro-Tum that we review for error. See Arobelidze v. Holder, 653 F.3d 513, 519 (7th Cir. 2011).
Castro-Tum holds that no statute or regulation gives immigration judges the general power to administratively close cases. Meza Morales argues that Castro-Tum is an erroneous interpretation of the immigration regulations, which he contends do grant that power to immigration judges. The government responds that Castro-Tum correctly interprets the clear text of the regulations; in the alternative, it argues that Castro-Tum is a reasonable interpretation of the regulatory language and is therefore entitled to deference under Auer v. Robbins, 519 U.S. 452 (1997).5 Auer only applies, however, to agency interpretations of genuinely ambiguous regulations—and the Supreme Court has recently warned us not to leap too quickly to the conclusion that a rule is ambiguous. Kisor v. Wilkie, 139S. Ct. 2400, 2415 (2019) (“A court cannot wave the ambiguity flag just because it found the regulation impenetrable on first read.“). We can defer only if careful application of the “traditional tools of construction” yields no definitive answer. Id. With the Court’s admonition in mind, we turn to the regulatory scheme that Castro-Tum interprets.
As Castro-Tum points out, no statute or regulation explicitly confers upon immigration judges a general power of administrative closure. The more difficult question is whether any of the immigration regulations that grant immigration judges their general powers is broad enough to implicitly encompass that authority. Castro-Tum analyzes and dismisses a few regulatory provisions that could arguably encompass a general administrative-closure power. The most salient is
Castro-Tum parses
We disagree. On its face,
Further, the regulation’s requirement that cases be resolved in “timely” fashion does not foreclose administrative closure. For one thing, “timeliness” is not a hard and fast deadline; some cases are more complex and simply take longer to resolve. Thus, not all mechanisms that lengthen the proceedings of a case prevent “timely” resolution. That is pre-sumably why nobody appears to think that continuances conflict with the regulation’s timeliness requirement. See Memorandum 15-01 from Brian
Castro-Tum insists, though, that interpreting
Nor do the regulations that explicitly mention administrative closure render
Castro-Tum places particular emphasis on the potential superfluity of a regulation providing that immigration judges “may” administratively close certain cases involving a pending application for a T visa—a visa for certain victims of human trafficking.
In sum, Castro-Tum’s interpretive arguments fail to convince us that administrative closure is not plainly within an immigration judge’s authority to take “any action” that is “appropriate and necessary for the disposition of ... cases.”
answer,” Kisor, 139 S. Ct. at 2415, Auer deference is unwarranted.7 The Attorney General may amend these rules through the proper procedures. But he may not, “under the guise of interpreting a regulation, ... create de facto a new regulation” that contradicts the one in place. Christensen v. Harris County, 529 U.S. 576, 588 (2000). We therefore reject Castro-Tum and hold that immigration judges are not precluded from administratively closing cases when appropriate.
* * *
The petition for review is GRANTED. If Meza Morales continues to pursue these forms of relief, the Board should reconsider on remand whether a continuance was appropriate in light of new opinions in Matter of Mayen and Guerra Rocha v. Barr. It should also reconsider whether to administratively close the case.