# United States Court of Appeals

f or the Fifth Circuit

No. 20

- 60241

Juan Jose Gonzalez

- Penaloza, also known as Juan Terrasco

Torres,

Petitioner ,

versus
Merrick Garland , U.S. Attorney General , Respondent

.

Petition for Review of an Order of the Board of Immigration Appeals Agency No. A

- 205

- 665

- 068

Before Wiener, Dennis, and Duncan, Circuit Judges

. Wiener , Circuit Judge : * This case arises from the denial of Petitioner Juan Jose Gonzalez

Penaloza’s motion request ing that the Board of Immigration Appeals (“BIA”) administratively close his case so that he could file a Form I

- 601A application with United States Citizenship and Immigration Services. The

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not pr ecedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 3, 2021 Lyle W. Cayce Clerk Case: 20-60241 Document: 00515964030 Page: 1 Date Filed: 08/03/2021No. 20

- 60241

2 BIA denied the motion , believ ing it lacked the general authority to administratively close cases in light of Matter of Castro

- Tum , 27 I&N Dec. 27 1, 283 (Att’y Gen. 2018). On appeal, Petitioner asks us to join the Third, Fourth, an d Seventh Circuits in holding that Castro

- Tum was incorrectly decided. 1 After we heard oral argument in this case but before we issued an opinion, the Attorney General issued an opinion in Matter of Cruz

- Valdez , 28 I&N Dec. 326 (Att’y Gen. 2021) , expressly overruling Castro

- Tum

. In Cruz

Valdez , the Attorney General noted that three courts of appeal s had already rejected Castro

- Tum ’s reasoning and that the case “departed from long

standing practice.” 2 The Attorney General also noted th at , although the Department of Justice (“DOJ”) had promulgated a new regulation in December 2020 which effectively codified Castro

- Tum ’s prohibition of administrative closure, it is currently subject to a nationwide injunction 3 and the DOJ “is now engaged in a reconsideration of that regulation.” 4 The

1 See Sanchez v. Att’y Gen. , No. 20

- 1843, 2021 WL 1774965 (3d Cir. May 5, 2021) ; Romero v. Barr , 937 F.3d 282, 292 (4th Cir. 2019); Meza Morales v. Barr , 973 F.3d 656, 667 (7th Cir. 2020).

2 28 I&N Dec. at 328, 329 (citing Romero , 937 F.3d at 292; Meza Morales v. Barr , 973 F.3d 667; Acros Sanchez , 997 F.3d at 121

- 22 ) . The Attorney General also stressed that even the Sixth Circuit, which upheld Castro

- Tum , subsequently re jected the prohibition on administrative closure in cases in which the alien, like the petitioner s in Cruz

- Valdez and the instant case, sought the ability to apply for a provisional unlawful presence waiver. Id. at 328 (citing Hernandez

- Serrano v. Barr , 98 1 F.3d 459, 464 (6th Cir. 2020); Garcia

- DeLeon v. Garland , 999 F.3d 986, 989 (6th Cir. 2021)).

3 See Centro Legal de la Raza v. E.O.I.R

. , No. 21

- CV

- 463, 2021 WL 916804 (N.D. Cal. Mar. 10, 2021)

.

4 28 I&N Dec. at 329. Case: 20-60241 Document: 00515964030 Page: 2 Date Filed: 08/03/2021No. 20

- 60241

3 Attorney General stated that, while reconsideration of the regulation is ongoing, “immigration judges and the Board should apply t he stand ard for administrative closure set out in [ Matter of Avetisyan , 25 I&N Dec. 688, 692 (BIA 2012) ] and [

Matter o f W

- Y

- U , 27 I&N Dec. 17, 18 (BIA 2017) ] .” 5 Late last week, the Attorney General filed an unopposed motion to remand the case to the BIA and, in the alternative, an unopposed alternative motion to extend time for filing the parties’ supplemental briefs for 15 days from the denial of the motion to remand. In light of this development, the Attorney General’s unopposed motion to remand the case to the BI A is GRANTED. The Attorney General’s unopposed alternative motion to extend time for filing the parties’ supplemental briefs for 15 days from the denial of the motion to remand is DENIED as moot. The instant matter is REMANDED to the BIA to consider whethe r Petitioner’s case should be administratively closed to allow him to file a Form I

- 601A. 6

5 Id.

6 Our dissenting colleague would reach the issue in this case on the merits because he believes the regulations foreclose the general use of administrative closure. Neither does
t he dissent er believe that Cruz

- Valdez merits Auer deference. However, we need not reach these issues because the Attorney General filed an unopposed motion to remand the case to the BIA

. Furthermore, we have not and need not consider the validity of Cruz

- Valdez because the Attorney General’s new interpretation was not applied by the BIA in this case. Case: 20-60241 Document: 00515964030 Page: 3 Date Filed: 08/03/2021No. 20

- 60241

4 Stuart Kyle Duncan , Circuit Judge , dissenting: Instead of remanding, I would deny the petition for review on the ground that the regulations foreclose the general use of administrative closure. See 8 C.F.R. §§ 1003.10(b); 1003.1(d)(1)(ii). In Matter of Castro

Tum , 27 I. & N. Dec. 271 (A.G. 2018), the Attorney General correctly interpret ed those regulations , and the BIA did not err by following that decision and denying Petitioner’s motion for administrative closure. See Her nandez

- Serrano v. Barr , 981 F.3d 459 , 466 (6th Cir. 2020); Arcos Sanchez v. Attorney General , 997 F.3d 113, 124 (3d Cir. 2021) (Matey, J., dissenting). My view is not changed by the Attorney General’s new opinion in Cruz

- Valdez , which purports to overrul e Castro

- Tum

. See Matter of Cruz

Valdez , 28 I. & N. Dec. 326 (A.G. 2021). I have serious doubts that Cruz

Valdez merits any deference under Auer v. Robbins , 529 U.S. 452 (1997). See Kisor v. Wilk i

e , 139 S. Ct. 2400, 2415

– 1 8 (2019). Because I would reach this issue , and the majority does not, I respectfully dissent

. Case: 20-60241 Document: 00515964030 Page: 4 Date Filed: 08/03/2021