United States Court of Appeals

for the Fifth Circuit

No. 20-60241

Juan Jose Gonzalez-Penaloza, also known as Juan TerrascoTorres, 

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 GonzalezPenaloza’s motion requesting 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opinion should not be published and is not precedent except under the limited 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: 08/03/2021
No. 20-60241

2

BIA denied the motion, believing it lacked the general authority to 

administratively close cases in light of Matter of Castro-Tum, 27 I&N Dec. 

271, 283 (Att’y Gen. 2018). On appeal, Petitioner asks us to join the Third, 

Fourth, and 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 CruzValdez, the Attorney General noted that three courts of appeals had already 

rejected Castro-Tum’s reasoning and that the case “departed from longstanding practice.”2 The Attorney General also noted that, 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 injunction3 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 rejected the prohibition on 

administrative closure in cases in which the alien, like the petitioners 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, 981 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: 08/03/2021
No. 20-60241

3

Attorney General stated that, while reconsideration of the regulation is 

ongoing, “immigration judges and the Board should apply the standard for 

administrative closure set out in [Matter of Avetisyan, 25 I&N Dec. 688, 692 

(BIA 2012)] and [Matter of 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 BIA 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 whether 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 

the dissenter 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: 08/03/2021
No. 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 CastroTum, 27 I. & N. Dec. 271 (A.G. 2018), the Attorney General correctly 

interpreted those regulations, and the BIA did not err by following that 

decision and denying Petitioner’s motion for administrative closure. See

Hernandez-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 overrule Castro-Tum. See Matter of CruzValdez, 28 I. & N. Dec. 326 (A.G. 2021). I have serious doubts that CruzValdez merits any deference under Auer v. Robbins, 529 U.S. 452 (1997). See 

Kisor v. Wilkie, 139 S. Ct. 2400, 2415–18 (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