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CA7 on Suspension, Repapering, Discretion: Zelaya Diaz v. Rosen

January 21, 2021 (1 min read)

Zelaya Diaz v. Rosen

"Our decision in Meza Morales effectively reinstated the prior Board precedent on the Avetisyan and W-Y-U factors, and neither the immigration judge nor the Board considered those factors here. It is not clear from the Board’s brief opinion how much it relied upon the directive of Castro-Tum and how much it relied upon the Department of Homeland Security’s opposition to closure and stated intention not to repaper. We need not answer that question to decide this petition. To the extent the Board relied on Castro-Tum, it acted contrary to law, at least in this circuit. To the extent the Department’s position was decisive, it is not the Department’s opposition but its basis that is important. That basis also remains only one of several Avetisyan and W-Y-U factors that should be considered in deciding whether to grant administrative closure. How to weigh all of those factors in a particular case is a job for the immigration judge and the Board, not for this court or the Department of Homeland Security. Zelaya is entitled to have his request for administrative closure considered as a proper exercise of discretion under law, including Board precedents and the factors set forth in Avetisyan and W-Y-U. That has not happened yet in Zelaya’s case. The petition for review is GRANTED, and the case is REMANDED to the Board for further proceedings consistent with this opinion."

[Hats off to Alexander Budzenski!]