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Romero v. Barr

United States Court of Appeals for the Fourth Circuit

May 8, 2019, Argued; August 29, 2019, Decided

No. 18-1850


 [*286]  AGEE, Circuit Judge:

After an immigration judge ("IJ") denied Jesus Zuniga Romero's request for administrative closure of his case—which would have removed it from the IJ's active docket pending the completion of a separate immigration proceeding—Romero petitioned the Board of Immigration Appeals ("BIA") for review. Although the BIA initially sustained Romero's appeal and administratively closed his case, it later dismissed the appeal after a precedential [**2]  decision issued by the Attorney General in Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018). In Castro-Tum, the Attorney General concluded that IJs and the BIA do not have the general authority to administratively close cases. Romero now brings a petition for review of the BIA's decision to this Court. For the reasons we discuss below, we grant Romero's petition for review, vacate the BIA's decision, and remand for proceedings consistent with this opinion.

In 2013, the Department of Homeland Security ("DHS") commenced removal proceedings against Romero, a citizen of Honduras, for being present in the United States without being admitted or paroled. See 8 U.S.C. § 1182(a)(9)(B)(ii). Although Romero accepted a grant of voluntary departure at a hearing before an IJ in 2014, he subsequently sought and received reopening of his case after the IJ determined that Romero was the beneficiary of a pending Form I-1301 filed by his wife, who was then a lawful permanent resident ("LPR").

After the I-130 had been approved, Romero filed a motion for administrative closure, advising that his wife had since become a naturalized U.S. citizen and that he wished to file a Form I-601A2 for a provisional unlawful presence waiver. In order to file the Form, the removal proceedings had to [**3]  be administratively closed. See 8 C.F.R. § 212.7(e)(4)(iii). As discussed further below, administrative closure is a  [*287]  procedural mechanism primarily employed for the convenience of the adjudicator (namely, IJs and the BIA) in order to allow cases to be removed from the active dockets of immigration courts, often so that individuals can pursue alternate immigration remedies—such as, in Romero's case, pursuing a provisional unlawful presence waiver. Romero advised that if his case were administratively closed, then once the waiver had been approved, he intended to move to re-calendar and terminate removal proceedings so that he could then go through the consular process in Honduras.

At the final hearing in March 2017, the IJ ultimately denied Romero's motion for administrative closure on the basis that he did not satisfy any of the factors outlined in Matter of Avetisyan, 25 I. &N. Dec. 688 (B.I.A. 2012). Romero appealed to the BIA, which sustained his appeal, concluding in part that he had met "several if not all" of the Avetisyan factors. A.R. 21. The BIA then administratively closed Romero's case.

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937 F.3d 282 *; 2019 U.S. App. LEXIS 26241 **; 2019 WL 4065596

JESUS HUMBERTO ZUNIGA ROMERO, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.

Subsequent History: Rehearing denied by Romero v. Barr, 2019 U.S. App. LEXIS 32449 (4th Cir., Oct. 29, 2019)

Prior History:  [**1] On Petition for Review of an Order of the Board of Immigration Appeals.



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Administrative Law, Agency Adjudication, Immigration Law, Deportation & Removal, Administrative Proceedings, Judicial Review, Standards of Review, Rule Interpretation, De Novo Standard of Review, Judicial Proceedings, Standards of Review