Garcia v. Garland

20-1641-ag

Garcia v. Garland

In the

United States Court of Appeals

FOR THE SECOND CIRCUIT

AUGUST TERM 2021

No. 20-1641

ANTONIO LUNA GARCIA,

Petitioner,

v.

MERRICK B. GARLAND,

UNITED STATES ATTORNEY GENERAL,

Respondent.

On Petition for Review of an Order of

the Board of Immigration Appeals

ARGUED: SEPTEMBER 14, 2021

DECIDED: MARCH 31, 2023

Before: WALKER, NARDINI, and MENASHI, Circuit Judges.

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.

BIBIANA C. ANDRADE, New York, NY, for Petitioner.

COLIN J. TUCKER, Trial Attorney, Office of Immigration

Litigation (Brian Boynton, Acting Assistant Attorney

General, Civil Division, Greg D. Mack, Senior Litigation

Counsel, Office of Immigration Litigation, on the brief),

United States Department of Justice, Washington, D.C.,

for Respondent.

MENASHI, Circuit Judge:

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

2

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.

3

BACKGROUND

I

An immigration judge (“IJ”) conducts removal proceedings to

determine whether an alien is “removable from the United States.”

8 U.S.C. § 1229a(c)(1)(A). But rather than proceed to a final decision,

the IJ might “administratively close” the proceedings. Matter of

W-Y-U-, 27 I. & N. Dec. 17, 18 (B.I.A. 2017). Administrative closure

does not terminate the case. Rather, it “temporarily remove[s] a case

from an Immigration Judge’s active calendar or from the [BIA’s]

docket.” Matter of Avetisyan, 25 I. & N. Dec. 688, 692 (B.I.A. 2012). Such

closure might be used “to await an action or event that is relevant to

immigration proceedings but is outside the control of the parties or

the court and may not occur for a significant or undetermined period

of time.” Id. But see Matter of Castro-Tum, 27 I. & N. Dec. at 272

(“Although described as a temporary suspension, administrative

closure is effectively permanent in most instances.”).

No statute or regulation expressly authorizes IJs or the BIA to

employ administrative closure. See Gonzalez-Caraveo v. Sessions, 882

F.3d 885, 889 (9th Cir. 2018) (“Although [administrative closure] is

regularly used, it is not described in the immigration statutes or

regulations.”); Vahora v. Holder, 626 F.3d 907, 917 (7th Cir. 2010)

(“[A]dministrative closure is not a practice specified in the statute, nor

is it mentioned in the current regulations.”). Instead, agency

adjudicators have inferred that authority from broad regulatory

language that authorizes IJs, “[i]n deciding the individual cases before

them, and subject to the applicable governing standards,” to “take

any action consistent with their authorities under the [Immigration

and Nationality] Act and regulations that is appropriate and

4

necessary for the disposition of such cases,” 8 C.F.R. § 1003.10(b)

(2018), and that authorizes the BIA, “[s]ubject to these governing

standards,” to “take any action consistent with their authorities under

the Act and the regulations that is appropriate and necessary for the

disposition of the case,” id. § 1003.1(d)(1)(ii). See Matter of Avetisyan,

25 I. & N. Dec. at 693.

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

1 See Elizabeth Montano, The Rise and Fall of Administrative Closure in

Immigration Courts, 129 Yale L.J. Forum 567, 571-72 (2020).

5

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

measures ‘appropriate and necessary for the disposition of such cases’

would not ordinarily include the authority to suspend such cases

indefinitely. Administrative closure in fact is the antithesis of a final

disposition.” 27 I. & N. Dec. at 285 (quoting 8 C.F.R. § 1003.10(b)

(2018)). The Attorney General decided that “[u]nlike the power to

grant continuances, which the regulations expressly confer,

immigration judges and the Board lack a general authority to grant

administrative closure. No Attorney General has delegated such

broad authority, and legal or policy arguments do not justify it.” Id.

at 282-83. Accordingly, the Attorney General held that “immigration

2 The Attorney General is authorized to “establish such regulations, …

issue such instructions, review such administrative determinations in

immigration proceedings, delegate such authority, and perform such other

acts as the Attorney General determines to be necessary for carrying out”

his oversight of the Executive Office for Immigration Review, the

component of the Department of Justice that conducts removal

proceedings. 8 U.S.C. § 1103(g)(2). In line with that authority, BIA decisions

may be referred for the Attorney General’s review. 8 C.F.R. § 1003.1(h)(1)

(2018).

6

judges and the Board lack this authority except where a previous

regulation or settlement agreement has expressly conferred it.” Id. at

283.

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 8 U.S.C.

3 Those regulations were issued subsequent to the decision of the BIA in

this case. See Appellate Procedures and Decisional Finality in Immigration

Proceedings; Administrative Closure, 85 Fed. Reg. 81,588, 81,651, 81,655 (Dec.

16, 2020) (amending 8 C.F.R. §§ 1003.1(d)(1)(ii), 1003.10(b)). We therefore do

not consider those regulations in this appeal. This opinion relies on the 2018

edition of the Code of Federal Regulations, which contains the operative

regulations at the time of the IJ and BIA decisions in this case and at the

time the Attorney General decided Matter of Castro-Tum.

7

§ 1182(a)(6)(A)(i) because he was not properly admitted and had not

been paroled.

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 8 U.S.C. § 1151(b)(2)(A)(i); id.

§ 1154(a)(1)(A)(i); see also Neang Chea Taing v. Napolitano, 567 F.3d 19,

21 (1st Cir. 2009) (describing the process of obtaining lawful

permanent resident status on the basis of a family relationship). Still,

the notice of approval included a disclaimer that the approval of the

I-130 petition did not constitute a visa and that the Department of

Homeland Security (“DHS”) still retained the authority to pursue

removal proceedings against Garcia.4

Garcia still needed to seek adjustment of his status through the

filing of an I-485 application. See 8 U.S.C. § 1255; see also Neang Chea

4 The notice read: “Although this application/petition has been approved,

USCIS and the U.S. Department of Homeland Security reserve the right to

verify the information submitted in this application, petition and/or

supporting documentation to ensure conformity with applicable laws,

rules, regulations, and other authorities. Methods used for verifying

information may include, but are not limited to, the review of public

information and records, contact by correspondence, the internet, or

telephone, and site inspections of businesses and residences. Information

obtained during the course of verification will be used to determine

whether revocation, rescission, and/or removal proceedings are

appropriate. Applicants, petitioners, and representatives on record will be

provided an opportunity to address derogatory information before formal

proceeding is initiated.” J. App’x 54.

8

Taing, 567 F.3d at 21. Adjustment of status is available for “an alien

who was inspected and admitted or paroled into the United States.”

8 U.S.C. § 1255(a). But because he entered the United States illegally,

Garcia was neither admitted nor paroled into the United States.

Accordingly, he needed to return to his country of origin, Mexico, to

apply for an immigrant visa from the U.S. consulate. Yet because

Garcia had been “unlawfully present in the United States for one year

or more,” he would be unable to reenter the United States if he sought

“admission within 10 years of the date of [his] departure … from the

United States.” 8 U.S.C. § 1182(a)(9)(B)(i)(II). To be able to return to

the United States from Mexico within ten years, Garcia needed to

submit an I-212 Application for Permission to Reapply for Admission

and an I-601A Application for Provisional Unlawful Presence Waiver

before leaving the country. See 8 U.S.C. § 1182(a)(9)(B)(v). 5

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

5 See Villavicencio Calderon v. Sessions, 330 F. Supp. 3d 944, 957 (S.D.N.Y.

2018) (“DHS’s regulations permit an eligible alien to obtain a provisional

waiver in three steps. First, the alien’s U.S. citizen relative (e.g., a spouse)

files a Form I-130 ‘Petition for Alien Relative’ to request that the

Government recognize the alien as the citizen’s immediate relative. See 8

U.S.C. § 1154(a)(l)(A)(i). Second, the alien files a Form I-212 ‘Application for

Permission to Reapply for Admission’ to request permission to reapply for

admission into the United States. Third, the alien files a Form I-601A

‘Application for Provisional Unlawful Presence Waiver’ to request the

provisional waiver of inadmissibility. An alien is granted a provisional

waiver only if each of the forms are approved.”).

9

removal proceedings are administratively closed and have not been

recalendared at the time of filing the application for a provisional

unlawful presence waiver.” 8 C.F.R. § 212.7(e)(4)(iii) (2018). For that

reason, Garcia requested that the IJ in his removal proceedings

adjourn his merits hearing to another date so that he could pursue the

I-601A provisional waiver from DHS.

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 administrative closure

was not necessary for Garcia to apply for a provisional unlawful

presence waiver. The BIA observed that “[t]he DHS has amended the

rules regarding provisional unlawful presence waivers to permit

individuals with final removal orders to apply for provisional

unlawful presence waivers in certain instances.” Id. (citing Expansion

of Provisional Unlawful Presence Waivers of Inadmissibility, 81 Fed.

Reg. 50,244, 50,275-76 (July 29, 2016); 8 C.F.R. § 212.7(e)(4)(iv) (2018)).

It noted that Garcia could request an administrative stay of removal

from DHS instead.

Garcia petitioned for review of the BIA’s decision.

10

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

11

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

But agencies are not courts. When an agency interprets an

ambiguous statute or regulation, it “may conduct what looks like an

adjudicatory proceeding,” but “in that proceeding the agency hardly

interprets or applies a preexisting legal rule to the specifics of a case

or controversy.” De Niz Robles v. Lynch, 803 F.3d 1165, 1173 (10th Cir.

2015) (Gorsuch, J.). Courts defer to the agency’s interpretation not

“because it represents a superior interpretation of existing law” but

“because the agency has been authorized to fill gaps in statutory law

with its own policy judgments.” Id. That means the agency acts “less

like a judicial actor interpreting existing law and a good deal more

6 Deborah A. Widiss, How Courts Do—and Don’t—Respond to Statutory

Overrides, 104 Judicature 51, 53 (2020); see Harper v. Va. Dep’t of Tax., 509 U.S.

86, 97 (1993) (“When this Court applies a rule of federal law to the parties

before it, that rule is the controlling interpretation of federal law and must

be given full retroactive effect in all cases still open on direct review and as

to all events, regardless of whether such events predate or postdate our

announcement of the rule.”).

12

like a legislative actor making new policy” that may differ at different

times. Id. 7

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

7 Even when an executive agency acts like a legislative or judicial actor, it

still exercises executive power. See City of Arlington v. FCC, 569 U.S. 290, 304

n.4 (2013) (“Agencies make rules … and conduct adjudications … and have

done so since the beginning of the Republic. These activities take

‘legislative’ and ‘judicial’ forms, but they are exercises of—indeed, under

our constitutional structure they must be exercises of—the ‘executive

Power.’”) (quoting U.S. Const. art. II, § 1, cl. 1); see also William Baude,

Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1577 (2020) (“Many

… instances of non-Article III adjudication occur in true members of the

executive branch—administrative agencies.”). In Humphrey’s Executor v.

United States, the Supreme Court contemplated that an agency might “act[]

in part quasi-legislatively and in part quasi-judicially” if it performs its

“duties as a legislative or as a judicial aid.” 295 U.S. 602, 628 (1935). Such an

agency “cannot in any proper sense be characterized as an arm or an eye of

the executive” because “[i]ts duties are performed without executive leave

and … must be free from executive control.” Id.; see also Seila Law LLC v.

CFPB, 140 S. Ct. 2183, 2198 (2020) (“Rightly or wrongly, the Court viewed

the FTC (as it existed in 1935) as exercising ‘no part of the executive

power.’”). The Supreme Court has said that Humphrey’s Executor’s

“conclusion that the FTC did not exercise executive power has not

withstood the test of time.” Seila Law, 140 S. Ct. at 2198 n.2. However that

may be, we are here considering an executive agency.

13

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 ways.” 8 But the fact that agency

interpretations vary between administrations based on policy

considerations does not mean that the interpretation of either

administration is invalid. Cf. Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Auto Ins. Co., 463 U.S. 29, 59 (1983) (Rehnquist, J., concurring in

part and dissenting in part) (“As long as the agency remains within

8 Cass R. Sunstein, Chevron as Law, 107 Geo. L.J. 1613, 1626 (2019); see also

Thomas W. Merrill, The Chevron Doctrine: Its Rise and Fall, and the Future of

the Administrative State 150 (2022) (explaining that the “principle that favors

administrative interpretation is the desirability of channeling issues of

discretionary policy choice to administrative agencies” because the agency

rather than a court is “the relatively more accountable and expert

interpreter”); John F. Manning, Lessons from a Nondelegation Canon, 83 Notre

Dame L. Rev. 1541, 1564 (2008) (“If an ambiguous organic act leaves open a

question of policymaking discretion, it is preferable in our representative

system to assume that Congress intended to delegate that discretion to

more accountable agencies rather than to less accountable courts.”)

(footnote omitted).

14

the bounds established by Congress, it is entitled to assess

administrative records and evaluate priorities in light of the

philosophy of the administration.”) (footnote omitted).

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 8 C.F.R.

§ 1003.1(d)(1)(ii) (2018), specifically including “decisions of the

Attorney General,” id. § 1003.1(d)(1)(i). The BIA did not abuse its

discretion when it applied Matter of Castro-Tum while that decision

was authoritative. A new Attorney General may have issued a new

decision articulating a different interpretation of the applicable

regulations, but that decision does not render the agency’s previous

compliance with the Attorney General’s decisions an abuse of

discretion. See De Niz Robles, 803 F.3d at 1173 (noting that a new

15

interpretation announced in an agency adjudication is subject to a

“presumption of prospectivity”). 9

For these reasons, the decision of the BIA cannot be invalidated

simply because it relied on a regulatory interpretation that the agency

subsequently revised. 10 To the contrary, the agency permissibly

relied on its previous interpretation of the regulations—provided, of

course, that the interpretation itself was permissible. An agency

interpretation of a regulation is permissible if it either follows from

the unambiguous language of the regulation or, if “the regulation is

genuinely ambiguous,” the agency’s interpretation of the regulation

is “reasonable” in that it falls “within the zone of ambiguity” of the

regulation. Kisor, 139 S. Ct. at 2415-16. We now turn to that question.

9 The government might have declined to defend the BIA’s decision in this

case on the ground that it relied on Matter of Castro-Tum, but it has not done

so. See Letter at 2, Garcia v. Garland, No. 20-1641, ECF No. 76 (2d Cir. Sept.

17, 2021) (“[T]he government is not waiving the argument that the Board

reasonably relied upon Matter of Castro-Tum—at a time when it was still

good law—to deny Petitioner’s administrative closure request.”).

10 We emphasize that in Matter of Cruz-Valdez the agency reinterpreted its

procedural regulations, effectively “announcing new rules of general

applicability” and making a policy-laden judgment that, we have

explained, resembles legislation and presumably applies prospectively.

Marquez v. Garland, 13 F.4th 108, 112 (2d Cir. 2021) (quoting De Niz Robles,

803 F.3d at 1172). We recognize that when an agency adjudicator applies

“preexisting rules” to “discrete cases and controversies,” its decision may

apply retroactively to past conduct, depending on certain factors. Id. at 111-

12 (quoting De Niz Robles, 803 F.3d at 1172); see also Lugo v. Holder, 783 F.3d

119, 121 (2d Cir. 2015); Abner S. Greene, Adjudicative Retroactivity in

Administrative Law, 1991 Sup. Ct. Rev. 261, 264 (“[A]djudicative retroactivity

is generally justified on the ground that adjudicators deciding cases arising

under antecedently given rules are applying those rules to particular

cases.”).

16

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

17

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, § 1003.1(d)(1) read, in relevant part, as follows:

(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

11 But cf. Raymond M. Kethledge, Ambiguities and Agency Cases: Reflections

After (Almost) Ten Years on the Bench, 70 Vand. L. Rev. En Banc 315, 319

(2017) (“It matters very much … that judges work very hard to identify the

best objective meaning of the text before giving up and declaring it

ambiguous.”); Brett M. Kavanaugh, Fixing Statutory Interpretation, 129

Harv. L. Rev. 2118, 2121 (2016) (noting that a “number of canons of

statutory interpretation depend on an initial evaluation of whether the

statutory text is clear or ambiguous” but “it is so difficult to make those

clarity versus ambiguity determinations in a coherent, evenhanded way”).

18

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.

8 C.F.R. § 1003.1(d)(1) (2018). Section 1003.10 followed a similar

structure at the time of the IJ’s denial of administrative closure:

(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).

Id. § 1003.10.

Some courts have concluded that the “any action” and

“appropriate and necessary” language in § 1003.1(d)(1)(ii) and

§ 1003.10(b) provides an unambiguous and unalterable authorization

19

for administrative closure. See Arcos Sanchez v. Attorney General, 997

F.3d 113, 121-22 (3d Cir. 2021) (“[B]y considering the text, structure,

history, and purpose of 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii), we

hold that the plain language establishes that general administrative

closure authority is unambiguously authorized by these

regulations.”); Meza Morales v. Barr, 973 F.3d 656, 667 (7th Cir. 2020)

(“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.’”); Romero v. Barr, 937 F.3d 282, 292 (4th Cir.

2019) (“Applying the standard tools of interpretation … we clearly

discern from the text that the authority of IJs and the BIA to

administratively close cases is conferred by the plain language of 8

C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii).”). Those courts reasoned that

administrative closure is an “action” as contemplated by the enabling

regulations. See, e.g., Romero, 937 F.3d at 292 (“[I]f we give the word

‘any’ its plain meaning, that language grants IJs and the BIA broad

discretion in how to manage and resolve cases.”). And the courts

decided that the use of administrative closure in several cases proves

that it is “appropriate and necessary” in many circumstances. See, e.g.,

id. at 293-94.

We disagree. The regulations do not unambiguously permit

administrative closure. The text of § 1003.1 and § 1003.10 could be

understood to put “limiting parameters on what may be considered

‘appropriate and necessary.’” Arcos Sanchez, 997 F.3d at 128 (Matey,

J., dissenting). Both § 1003.1 and § 1003.10 limit the grant of authority

to take “appropriate and necessary” measures to those measures

undertaken “for the disposition of” cases. It is at least arguable that

administrative closure does not constitute a disposition because it

20

does not resolve a case on the merits. See Matter of Avetisyan, 25 I. & N.

Dec. at 695 (“[A]dministrative closure does not result in a final

order.”). Therefore, one might reasonably conclude that

administrative closure is not necessary to dispose of cases. The canon

against surplusage requires us to “give effect, if possible, to every

clause and word of a statute,” avoiding interpretations that would

render one or more of the statute’s provisions superfluous. Panjiva,

Inc. v. CBP, 975 F.3d 171, 178 (2d Cir. 2020) (quoting Williams v. Taylor,

529 U.S. 362, 404 (2000)). To avoid superfluity, the language “for the

disposition of” must limit the category of actions considered

“appropriate and necessary.” 8 C.F.R. § 1003.1(d)(1)(ii) (2018); id.

§ 1003.10(b). The language therefore makes it ambiguous whether

administrative closure is “appropriate and necessary” to dispose of

cases.

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

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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 the Attorney General, pursuant to his authority to

“issue such instructions” and “review such administrative

determinations in immigration proceedings” as he “determines to be

necessary for carrying out” his oversight of the Executive Office for

Immigration Review. 8 U.S.C. § 1103(g)(2); see also 8 C.F.R.

§ 1003.1(h)(1) (2018) (providing for the referral of BIA decisions to the

Attorney General). Congress gave the Attorney General the authority

to “speak with the force of law” in reviewing immigration decisions,

and the interpretation here was issued pursuant to that authority.

United States v. Mead Corp., 533 U.S. 218, 229 (2001); see also Kisor, 139

S. Ct. at 2412 (plurality opinion) (noting the presumption that “the

power authoritatively to interpret its own regulations is a component

of the agency’s delegated lawmaking powers”) (quoting Martin v.

Occupational Safety & Health Rev. Comm’n, 499 U.S. 144, 151 (1991)).

The interpretation reflected “the agency’s ‘authoritative’ or ‘official

position,’” Kisor, 139 S. Ct. at 2416 (quoting Mead, 533 U.S. at 257-59 &

n.6 (Scalia, J., dissenting)), and its “considered judgment on the matter

in question,” Christopher, 567 U.S. at 155 (quoting Auer, 519 U.S. at

22

462), within the scope of “the agency’s ordinary duties,” Kisor, 139

S. Ct. at 2417 (internal quotation marks omitted).

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.” 8 C.F.R.

§ 1003.10(b) (2018); see also id. § 1003.1(d)(1)(ii). It is reasonable to read

that language and conclude that it does not authorize administrative

closure because such closure does not bring about the “disposition”

of a case; it merely removes a case from an IJ’s or the BIA’s active

calendar without resolution. Hernandez-Serrano, 981 F.3d at 463.

Because other, enumerated authorities allow IJs and the BIA to

suspend proceedings in immigration cases, administrative closure

may not be “necessary” even if an adjudication required some

suspension of proceedings. See 8 C.F.R. § 1003.29 (2018) (authorizing

continuances); 8 C.F.R. § 1240.6 (2018) (authorizing adjournments);

see also Hernandez-Serrano, 981 F.3d at 464 (“As early as 1958,

regulations granted the predecessors to IJs … and the Board authority

to take actions ‘appropriate and necessary for the disposition of’ their

cases. Yet there is little if any record of immigration cases being

administratively closed for nearly a quarter-century afterward.”)

(internal citations omitted).

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

23

administrative closure. 12 When the Attorney General decided that

the regulations did not authorize administrative closure, the BIA and

the IJ were bound by that interpretation. 13

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

12 Indeed, the BIA and the IJ were required to follow that interpretation.

Whatever authority the BIA or an IJ has to take actions that are “appropriate

and necessary,” that authority is “[s]ubject to these governing standards,”

8 C.F.R. § 1003.1(d)(1)(ii) (2018), including “decisions of the Attorney

General,” id. § 1003.1(d)(1)(i); see also id. § 1003.10(b) (authorizing IJs to take

actions “subject to the applicable governing standards”); id. § 1003.10(d)

(providing that “[i]mmigration judges shall be governed by,” among other

things, decisions of the Attorney General).

13 Garcia argues that the agency’s reliance on Matter of Castro-Tum

subjected him to “unfair surprise” because that decision was issued just

over a month before his merits hearing. Petitioner’s Br. 13. Yet even before

Castro-Tum, whether to allow administrative closure was “a matter

reserved to the discretion of the Immigration Judge or the Board.” Matter of

Avetisyan, 25 I. & N. Dec. at 695. The denial of administrative closure in this

case did not represent an “upending of reliance” because Garcia could not

have had a settled expectation of the agency granting him administrative

closure. Kisor, 139 S. Ct. at 2418. In Castro-Tum, the Attorney General

explained that the decision “does not raise due process or retroactivity

concerns” because “[a]dministrative closure confers no legal entitlement to

indefinite closure and has always been understood as revocable.” 27 I. & N.

Dec. at 294 n.14. This case does not resemble those in which regulated

parties have been subjected to unfair surprise by the imposition of new

liability or fines. See Christopher, 567 U.S. at 155-56 (identifying unfair

surprise when the agency’s interpretation of ambiguous regulations would

“impose potentially massive liability ... for conduct that occurred well

before that interpretation was announced”).

24

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.” 8

C.F.R. § 212.7(e)(4)(iii) (2018). Garcia argues that because the DHS

regulation expressly contemplates administrative closure in cases

such as his, administrative closure remained an option for the IJ or the

BIA in his case, despite the general rule of Matter of Castro-Tum.

But IJs and the BIA are delegates of the Attorney General, not

the Secretary of Homeland Security. See 8 U.S.C. § 1101(b)(4) (“An

immigration judge shall be subject to such supervision and shall

perform such duties as the Attorney General shall prescribe.”). 14

“Because only the Attorney General may expand the authority of

immigration judges or the Board,” a regulation promulgated by DHS

“cannot be an independent source of authority for administrative

closure.” Matter of Castro-Tum, 27 I. & N. Dec. at 287 n.9.

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.

14 See also Exec. Office for Immigr. Rev., U.S. Dep’t of Just., Immigration

Court Practice Manual § 1.2(d) (2022) (“DHS is responsible for enforcing

immigration laws and administering immigration and naturalization

benefits. By contrast, the immigration courts and the Board of Immigration

Appeals are responsible for independently adjudicating cases under the

immigration laws. Thus, DHS is entirely separate from the Department of

Justice and the Executive Office for Immigration Review.”).

25