Attorney General Overrules Matter Of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) In Its Entirety, Holding That While Rulemaking 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 Matter Of Avetisyan, 25 I&N Dec. 688 (BIA 2012) And Matter Of W-Y-U-, 27 I&N Dec. 17 (BIA 2017).
On July 15, 2021, Attorney General Merrick Garland, per 8C.F.R. §1003.1(h)(1)(i), directed the Board of Immigration Appeals (BIA or Board) to refer to him its decision in the instant matter. Upon referral, the Attorney General (AG) vacated the BIA’s July 2018 decision and remanded the case to the Board for further proceedings. He also overruled former-AG Sessions’s opinion in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), which had concluded that IJs’ use of the tool of administrative closure was not authorized.
AG Garland found that administrative closure is a docket-management tool used to temporarily close removal proceedings, per Matter of W-Y-U-, 27 I&N Dec.17 (BIA 2017), concluding that it does not terminate or dismiss the case, but rather removes it from the IJ’s active calendar or from the BIA’s docket, citing to Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). He also noted that IJs have employed the tool “for many decades.”
The opinion explained that AG Sessions had concluded that administrative closure was not authorized by statute, regulation, or delegation from the AG, finding that none of the regulations that had been cited to justify the use of the tool “conferred authority to grant administrative closure” because such closure allowed indefinite suspension of cases, rather than their disposition. He also concluded that other Department of Justice (DOJ) regulations could not reasonably be interpreted as implicitly delegating such authority. He therefore instructed that cases that had been administratively closed absent a specific authorizing regulatory provision or judicially approved settlement were to be recalendared upon motion of either party, overruling all inconsistent Board precedent.
AG Garland thus determined that it is appropriate to overrule AG Session’s opinion in Castro-Tum and, because that opinion formed the basis for the BIA’s decision in the instant matter, he vacated that decision as well. The AG noted that 3 courts of appeal have already rejected Castro-Tum, holding that administrative closure is “plainly within” an IJ’s authority under DOJ regulations; only 1 court of appeals has upheld Castro-Tum, noted AG Garland, but even that court, stated the decision, subsequently held that IJs and the Board have the authority to grant administrative closure in order to permit a noncitizen to apply for an I-601A waiver.
Lastly, explained the AG, in December 2020, the DOJ issued a final rule aimed at resolving this disagreement among the courts of appeal, effectively codifying AG Sessions’ holding in Castro-Tum; a few months later, the rule was preliminary enjoined nationwide for failure to comply with the APA. AG Garland noted that the DOJ is “now engaged in a reconsideration of that regulation.” Therefore, he held, because Castro-Tum departed from long-standing practice, it is appropriately overruled in its entirety, in effect, restoring administrative closure “pending the reconsideration of the 2020 rule through notice-and-comment rulemaking.” Accordingly, while the reconsideration proceeds and except when a court of appeals has held otherwise, IJs and the BIA should apply the standard for administrative closure set out in Avetisyan and W-Y-U-. Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021).