Gonzalez v. Garland

16 F.4th 131

Javier Chavez GONZALEZ, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-1924

United States Court of Appeals, Fourth Circuit.

Argued: September 21, 2021

Decided: October 20, 2021

ARGUED: Benjamin Ross Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Sara J. Bayram, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Rebekah G. Grafton, FAY GRAFTON NUNEZ, Raleigh, North Carolina, for Petitioner. Brian M. Boynton, Acting Assistant Attorney General, John W. Blakeley, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before FLOYD, THACKER, and HARRIS, Circuit Judges.

Petition for review granted in part and denied in part; vacated and remanded by published opinion. Judge Thacker wrote the opinion, in which Judge Floyd and Judge Harris joined.

THACKER, Circuit Judge:

In August 2016, Javier Chavez Gonzalez ("Petitioner") was granted deferred action on his removal from the United States pursuant to the Deferred Action for Childhood Arrivals program ("DACA"). As a result of his conviction for a misdemeanor in North Carolina, the United States Department of Homeland Security ("DHS") terminated Petitioner's grant of deferred action, and Petitioner was immediately placed in removal proceedings.

However, during the course of his proceedings before the immigration judge ("IJ"), DHS officially restored Petitioner's DACA grant of deferred action. As a result, Petitioner asked the IJ to either administratively close his case, terminate the removal proceedings, or grant a continuance based on his mother's pending application to be a legal permanent resident ("LPR"). The IJ denied all requests for relief, and Petitioner appealed to the Board of Immigration Appeals ("BIA").

While the matter was pending in the BIA, Petitioner's mother obtained LPR status, and Petitioner filed a motion to remand with the BIA. The BIA affirmed the IJ's decision and denied the motion to remand. Relying on Matter of S-O-G- & F-D-B- , 27 I. & N. Dec. 462 (A.G. 2018), the BIA reasoned that neither the IJs nor the BIA possess the authority to terminate removal proceedings. The BIA also found administrative closure and a continuance to be inappropriate based on the speculative possibility of Petitioner's mother earning LPR status. The BIA denied the motion to remand because Petitioner failed to present prima facie evidence that his mother's LPR status would qualify him for cancellation of removal. Petitioner timely filed this petition for review.

We hold today that the IJs and BIA possess the inherent authority to terminate removal proceedings, abrogating Matter of S-O-G- & F-D-B- . We likewise conclude the BIA improperly denied Petitioner's request for administrative closure because it failed to address Petitioner's specific argument based on his DACA status. However, we find no error in the IJ's decision to deny Petitioner's request for a continuance and the BIA's decision to deny the motion to remand. We therefore grant the petition for review in part, deny it in part, vacate the BIA's decision, and remand for proceedings consistent with this opinion.

I.Factual and Procedural History

A.The DACA Program

In 2012, DHS created the DACA program for "certain young people who were brought to this country as children." Dep't of Homeland Sec. v. Regents of the Univ. of Cal. , ––– U.S. ––––, 140 S. Ct. 1891, 1901, 207 L.Ed.2d 353 (2020) (internal quotation marks omitted). Through the program, noncitizens who satisfy certain criteria -- i.e., noncitizens who came to the United States before age 16 and were under age 31 in 2012; have continuously resided here since 2007; are current students, have completed high school, or are honorably discharged veterans; have not been convicted of any serious crimes; and do not threaten national security or public safety -- could receive renewable grants of "deferred action" for renewable two-year terms. Id . "This commendable exercise in administrative discretion" may be exercised "at any stage of the administrative process." Reno v. American-Arab Anti-Discrimination Comm. , 525 U.S. 471, 484, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (quoting Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure Vol. 6, § 72.03(2)(h) (1998)). Those granted such relief "are also eligible for work authorization and various federal benefits." Dep't of Homeland Sec. , 140 S. Ct. at 1901. However, noncitizens are not eligible to receive relief pursuant to DACA if they have been "convicted of multiple misdemeanors, a single significant misdemeanor, or any felony offense." Ariz. Dream Act Coal. v. Brewer , 757 F.3d 1053, 1058 (9th Cir. 2014).

From around 2013 to 2018, DHS automatically terminated a grant of deferred action and placed DACA recipients in removal proceedings upon the issuance of a Notice to Appear ("NTA"). But in February 2018, the Central District of California issued a preliminary injunction to a nationwide class of DACA recipients who have had or will have their DACA grant and employment authorization revoked without notice or an opportunity to respond, prohibiting DHS from automatically terminating deferred action upon an issuance of an NTA without notice and opportunity to respond. See Inland Empire-Immigrant Youth Collective v. Nielsen , No. 17-cv-2048, 2018 WL 1061408, at *2 (C.D. Cal. Feb. 26, 2018) (" Inland Empire ").

B.The IJ Proceedings

Petitioner entered the United States from Mexico on October 20, 1998, when he was three years old, and he has not left the United States since. On August 10, 2016, Petitioner was granted deferred action pursuant to DACA for a two-year period, which he has continually renewed every two years. Prior to Inland Empire , on October 6, 2017, Petitioner pled guilty to misdemeanor possession of drug paraphernalia in North Carolina state court. Thereafter, DHS terminated Petitioner's grant of deferred action, and three days later, Petitioner was placed in removal proceedings, without being given notice or an opportunity to respond.

Less than a month after Inland Empire ’s nationwide injunction, on March 22, 2018, Petitioner appeared for his initial hearing before the IJ. Petitioner conceded he was inadmissible for being present in the United States without being admitted or paroled, but he advised the IJ that DHS had revoked his grant of deferred action without notice, and that, as a result, he intended to request administrative closure. DHS responded that the Inland Empire injunction "doesn't operate to resolve removal proceedings or affect removal proceedings in any fashion." A.R. 80–81 (emphases supplied).¹ Rather, DHS opined that the injunction "only operates to control whether or not an alien can actually be removed." Id. at 81. Therefore, DHS stated that it would "not agree[ ] to administrative[ly] clos[e]" Petitioner's removal proceedings. Id . Petitioner also pointed out that his mother had a pending application for LPR status, and if his mother achieved LPR status, Petitioner could apply for cancellation of removal.

On March 30, 2018, about a week after Petitioner's initial hearing, DHS officially restored Petitioner's DACA grant of deferred action pursuant to Inland Empire . At that point, Petitioner again asked the IJ to either administratively close his case or terminate the proceedings. In the alternative, Petitioner sought a continuance or administrative closure because his mother had submitted an application to become an LPR, which was still pending.²

On April 12, 2018, the IJ held Petitioner's final hearing. The IJ denied Petitioner's request for a continuance pursuant to 8 C.F.R. § 1003.29 for "failure to show good cause" because Petitioner was not at that time eligible for any relief from removal. A.R. 63; see id. at 86 ("You made a motion for a continuance which I denied because [Petitioner] doesn't have any current relief."). Even though Petitioner's grant of deferred action had been restored, the IJ reasoned that Petitioner remained subject to his removability charge, and thus denied the motion to terminate the proceedings. The IJ also denied the request for administrative closure because Petitioner was not eligible for "immediately foreseeable" relief. Id. at 90.

The IJ then issued summary orders denying the requests for termination, continuance, and closure and ordered Petitioner removed to Mexico. Petitioner timely appealed to the BIA.

C.The BIA Proceedings

While Petitioner's BIA appeal was pending, in May 2018, Attorney General Jefferson Sessions issued a decision holding that IJs and the BIA did not have the general authority to administratively close cases. See Matter of Castro-Tum , 27 I. & N. Dec. 271, 272 (A.G. 2018). Four months after that, Attorney General Sessions issued another decision holding that IJs and BIA also lacked the general authority to terminate proceedings. See Matter of S-O-G- & F-D-B- , 27 I. & N. Dec. 462, 463 (A.G. 2018).

After filing his appeal with the BIA, but before Petitioner's appeal was decided, two significant events occurred. First, this court overruled Castro-Tum , relying on two regulations that bestow the IJ and BIA authority to administratively close cases -- 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii). See Romero v. Barr , 937 F.3d 282, 292–94 (4th Cir. 2019). And second, Petitioner's mother attained LPR status.

As a result, Petitioner argued to the BIA that the IJ should have either terminated or administratively closed the proceedings because his grant of deferred action had been restored. Alternatively, Petitioner argued that the IJ should have administratively closed or continued the proceedings, pending the adjudication of his mother's application for LPR status, to allow him to apply for cancellation of removal. Petitioner also filed a motion to remand based on the change in his mother's status.

On August 6, 2020, the BIA denied Petitioner's...