PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No: 20

- 1843

_______________

ABNER ANTONIO ARCOS SANCHEZ,

a/k/a Abner Arcos, a/k/a Abner Sanchez,

a/k/a Abner A. Snachez

- Acros, a/k/a Abner Antonio

Acros

- Sanchez,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

_______________

On Petition for Review of an Order of the Board of Immigration Appeals ( BIA 1: A 20 4

- 362

- 439 ) Immigration Judge: Mirlande Tadal

_______________

Argued: January 2 6 , 20 212 Before: JORDAN, MATEY, Circuit Judges

, and HORAN, * District Judge

.

(Filed : May 5, 2021 )

_______________

Jerard A. Gonzalez [ARGUED]

BASTARRIKA SOTO GONZALEZ & SOMOHANO

3 Garret Mountain Plaza

- Suite 302 Woodland Park, NJ 07424

Cheryl Lin

338 Palisade Avenue

- Suite 255 Jersey City, NJ 07307 Counsel for Petitioner

William P. Barr Micah Engler Brendan P. Hogan [ARGUED]

UNITED STATES DEPARTMENT OF JUSTICE Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station Washington, DC 20044 Counsel for Respondent

_______________

OPINION OF THE COURT

* Honorable Marilyn Horan, United States District Judge for the Western District of Pennsylvania, sitting by designation.3 _______________

HORAN, District Judge

.

Abner Antonio Arcos Sanchez petitions for review of the Board of Immigration Appeals’ (“Board”) decision dismissing his appeal of an Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of removal under 8 U.S.C. § 1231(b)(3), and wi thholding of removal under the Convention Against Torture (“CAT”). The Board also denied Arcos Sanchez’s request for remand to the IJ for administrative closure, which would have given time for renewal of his

Deferred Action for Childhood Arrivals (“DACA” ) status. On this latter issue, the Board cit ed then Attorney General

Sessions ’ decision in Matter of Castro

- Tum , 27 I. & N. Dec. 271 (A.G. 2018)

. The Board determined that the IJ and the Board did not have authority to administratively close proceedings, unless a “ regulation or a previous judicially approved settlement expressly authorize s such an action” as set
forth in Castro

- Tum

. A.R. 4

. As such, r emand f or consideration of administrative closure, while Arcos Sanchez pursued DACA status renewal, was denied. For the reasons we discuss below, we grant Arcos Sanchez’s petition for review, vacate the Board’s decision, and remand for proceedings consistent wit h this opinion.

I. Facts and Procedural History

In 2002, at the age of seven, Arcos Sanchez, a native and citizen of Mexico, entered the United States without4 inspection. In 2012, he applied for DACA 1 status, which was approved. The Department of Homeland Security periodically granted his requests fo r renewals. On April 8, 2019, Arcos Sanchez was arrested and charged in New Jersey with sexual assault and endangering the welfare of a child. On May 17, 2019, based upon that arrest and those charges, the United States Citizenship and Immigration Servic es (“USCIS”)

revoked Arcos Sanchez’s DACA status. In June 2019, the

1 Since June 15, 2012, DACA has granted certain immigrant children and young adults deferred action, a form of prosecutorial discretion where the Department of Homeland Security (“DHS”) formally decides not to pursue removal of otherwise deportable non

- citizens. See DHS, Memorandum from Sec’y of Homeland Sec. Janet Napolitano, “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, (June 15, 2012), https://www.dhs.gov/xlibrary/assets/s1

- exercising

prosecutorial

- discretion

- individuals

- who

- came

- to

- us

- as

children.pdf, Addendum A (“Napolitano Memorandum”). To be considered for DACA, applicants must satisfy the requirements set forth in the Napolitano Memorandum. Specifically, the applicant must: 1. Have entered the United States under the age of 16; 2. Have continuously resided in the United States since June 15, 2007; 3. Be currently enrolled in school, have graduated from high school, have obtained a general education development certificate, or have been

honorabl y discharged from the U.S. Coast Guard or Armed Forces; 4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or are otherwise not a threat to national security or public safety; and 5. Have been under the age of 30 as of

June 5, 2012. Napolitano Memorandum at 1.5 Department of Homeland Security took Arcos Sanchez into custody, served him with a Notice to Appear, and charged him as being present without having been admitted or paroled. See

8 U.S.C . § 1182(a)(9)(B)(ii).

In removal proceedings before the IJ, Arcos Sanchez applied for asylum, withholding of removal, and for relief under CAT. The IJ denied asylum, finding that Arcos Sanchez

failed to meet the one

- year filing deadline or show extraordinary circumstances in the delay. The IJ denied withholding of removal, finding the proposed social group was not cognizable. Finally, the IJ denied his CAT claim, finding

he did not demonstrat e at least a fifty percent chance he would be tortured upon his return to Mexico. On November 6, 2019,

the IJ issued his decision and ordered Arcos Sanchez’s removal

to Mexico. Two weeks later, his state criminal charges were

dismissed.

On appeal to the Board, Arcos Sanchez challenged the

IJ’s decision and requested the Board remand his case to the IJ for consideration of administrative closure. He argued that, because the state criminal charges were dismissed, he was

“ eligible for renewal of his DA CA and re

- filed with UCIS on January 28, 2020 [

, ] ” which would impact the disposition of his

removal proceeding. A.R. 26. The Board denied remand, citing the binding precedent of then

- Attorney General

Sessions’ Castro

- Tum decision, which held that, under the regulations governing the Executive Office of Immigration Review, IJs and the Board do not have the general authority to indefinitely suspend immigration proceedings by administrative closure. The Board found that, since Arcos

Sanchez did not show tha t his request for remand for administrative closure fell within the express exceptions under6 Castro

- Tum , his case could not be administratively closed. 27

I. & N. Dec. at 28 3

. 2 Arcos

- Sanchez petitioned for review of

the Board’s decision.

II. Jurisdiction

We have jurisdiction to review petitions under 8 U.S.C. § 1252(a). We review legal conclusions of the Board de novo, subject to established rules of deference. Da Silva v. Att’y Gen. of the U.S. , 948 F.3d 629, 633 (3d Cir. 2020). Here, we are presented with the question whether then Attorney General

Sessions’ Castro

- Tum decision properly concluded that 8 C.F.R. §§ 1003.1(d)(1)(ii) and 1003.10(b) unambiguously do

n ot grant IJs and the Board the general authority to administratively close cases. T he Board denied Arcos Sanchez’s remand request based on the Attorney General’s

conclusion that there is no such general authority. Arcos Sanchez challenges the Board’s reliance on that conclusion,

which we will review de novo. See Da Silva, 948 F.3d at 633.

III. History of Administrative Closure

A. Pre Castro

- Tum

Since at least the 1980s, IJs and the Board have utilized administrative closure as a docketing tool to remove cases from

their active dockets as a matter of “administrative

2 As noted below, the Department of Justice amended 8 C.F.R. §§ 1003.1(d)(1)(ii) and 1003.10(b) for removal proceedings initiated after January 15, 2021. As this matter

was initiated be fore January 15, 2021, the Court reviews the

pre

- amendment text.7 convenience.” In re Gutierrez

- Lopez , 21 I. & N. Dec. 479, 480 (B.I.A. 1996) (internal quotation marks omitted); see also Matter of Amico , 19 I. & N. Dec. 652, 654 n.1 (B.I.A. 1988) (“ T he administrative closing of a case does not result in a final order,” but “is merely an administrative convenience which

allows the removal of cases from the calendar in appropriate

situations

. ”). Administrative closure allows an IJ or the Board to “temporarily pause removal proceedings” and place the case on hold because of a pending alternative resolution or because

events outside the control of either party may affe ct the case. Matter of W

- Y

- U

- , 27 I. & N. Dec. 17, 18 (B.I.A. 2017).

Even though IJs and the Board have used general administrative closure for almost three decades, the Immigration and Naturalization Act (“INA”) and the regulations governing IJs or th e Board do not expressly

authorize the practice. See Vahora v. Holder , 626 F.3d 907,

917

- 18 (7th Cir. 2010) (noting that the general power to administratively close a case is employed by quasi

- judicial bodies for “orderly management of the docket” and is reviewable by courts). Although the INA and its regulations do not specifically reference general administrative closure authority, the regulations both explicitly and implicitly confer broad powers on IJs and the Board to manage their dockets. As regard s IJs’ authority, 8 C.F.R. § 1003.10(b) concerns their “powers and duties” and states in relevant part:

In conducting hearings under section 240 of the Act and such other proceedings the Attorney General may assign to them, immigration judges

shall exerci se the powers and duties delegated to them by the Act and by the Attorney General through regulation. In deciding the individual8 cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judg ment and discretion and may take any action consistent

with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases. ... In all cases, immigration judges shall seek to resolve the questions before them in a timely and impartial manner consistent with the Act and regulations.

Id. (emphases added). In addition, 8 C.F.R. § 1240.1(a) (iv) provides that IJs shall have the authority in any removal proceeding to “take any other action consistent with app licable law and regulations as may be appropriate.” As regards the Board’s authority, 8 C.F.R. § 1003.1(d)(1)(ii) states that Board

members:

shall exercise their independent judgment and discretion in considering and determining the cases coming before t he Board, and a panel or Board member to whom a case is assigned may

take any action consistent with their authorities under the Act and the regulations as is appropriate and necessary for the disposition of

the case.

Id. (emphases added).

Aside from regulations, Board decisions have also recognized the authority for IJs and the Board to administratively close cases , at first only if it was not “opposed by either of the parties.” Matter of Gutierrez

- Lopez , 21 I. & N.9 D ec. at 479 . In Matter of Avetisyan , the Board endorsed the administrative closure practice and held that both 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) empower IJs and the Board to “take any action...as is appropriate and necessary for the disposition of [a] case.” 25 I. & N. Dec. 688, 691 (B.I.A. 2012)

. The Board applied a six

- factor test to determine whether administrative closure was appropriate, regardless of government opposition. See Avetisyan , 25 I. & N. Dec. at 696.

It explained that

, “[d]urin g the course of proceedings, an [IJ] or the [Board] may find it necessary or, in the interests of justice and fairness to the parties, prudent to defer further action for some period of time.” Id. The Board described two

mechanisms to defer action : conti nuance and administrative

closure. “[ A ] continuance may be appropriately utilized to await additional action required of the parties that will be, or is expected to be, completed within a reasonably certain and brief

amount of time.” Id. However, the Board observed in Avetisyan that when the parties must “await an action or event that is relevant to immigration proceedings but is outside the control of the parties or the court and may not occur for a significant or undetermined period of time,” removing a case

from the docket via administrativ e closure may be “appropriate.” Id. at 692.

In addition, as described by the Board, administrative closure can facilitate “efficient management of the resources of the immigration courts and the Board

. ” Id. at 695; see also

Gonzalez

- Caraveo v. Sessi ons , 882 F.3d 885, 889

- 90 (9th Cir. 2018) (citing Matter of Avetisyan as authority for administrative closure). Under this framework, the Board has issued decisions recognizing the authority for IJs to administratively close cases for many reasons related to the interests of justice or to the conservation of court resources.10 See e.g. Matter of Montiel , 26 I. & N. Dec. 555 (B.I.A. 2015) ( holding administrative closure appropriate when a petitioner is awaiting resolution of a criminal conviction direct appeal).

The Board reaffirmed Avetisyan in Matter of W

- Y

- U

- , and clarified that “the primary consideration for an Immigration Judge in determining whether to administratively close or recalendar proceedings is whether the party opposing

administrat ive closure has provided a persuasive reason for the case to proceed and be resolved on the merits

. 27 I. & N. Dec.

at 20

.

B. Castro

- Tum

On May 17, 2018, in Matter of Castro

- Tum , then Attorney General Sessions employed administrative adjudication unde r 8 C.F.R. § 1003.1(h)(1)(i), holding that IJs and the Board lack the authority to administratively close cases “except where a previous regulation or settlement agreement has expressly conferred it.” 27 I. & N. Dec. at 283. In that decision, the Attorne y General overruled the contrary rulings

from Avetisyan and W

- Y

- U

-

. This decision reversed the

decades

- old practice of administrative closure, endorsed by Board decisions and rooted in prior interpretations of 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii)

. The Attorney General

noted a sharp increase in administratively closed cases between 2011 and 2017, which he linked to the more permissive

standard establ ished by Avetisyan

. Id. at 273. And h e observe d that no statute or regulation explicitly grants IJs a general power of administrative closure. I n concluding that the regulations do not implicitly grant authority for administrative closure, he h e ld that closure cannot be “appropriate and necessary” to the “disposition” of cases since closure is a suspension that delays the final resolution of a case. Id. at 285.11 H e further reasoned that a general power to administratively

close cases would conflict with the regulation ’ s requirement

that IJs “timely” resolve their cases. Id.

C. Post Castro

- Tum

Since the issuance of Castro

- Tum , our sister c ourts of appeals have split on whether it was correctly decided. The

Fourth and Seventh Circuits have ruled that the IJ and Board have general authority to administratively close cases. In

Romero v. Barr , the Fourth Circuit analyzed the regulations at

issue and concluded that they “unambiguously confer upon IJs and the Board the general authority to administratively close

cases [,] ” but even if they are ambiguous, “the Attorney General’s reading of the regulations does not warrant

deference because it amounts to an ‘ unfair surprise .’ ” 937 F.3d 282, 29 4

- 95 (4th Cir. 2019) . Similarly, in Meza Morales v.

Barr , th e Seventh Circuit concluded that Castro

- Tum was contrary to the unambiguous meaning of the regulations and that IJs and the Board are “not precluded from administrat ively closing cases when appropriate.” 973 F.3d 656, 667 (7th Cir. 2020) (Barrett, J.) ; see also Zelaya Diaz v. Rosen , 986 F.3d 6 87 (7 th Cir. 2021) ( applying Meza

- Morales ) . Thus, two circuits have concluded that the regulations at issue unambiguously confer general authority for administrative closure and that

Castro

- Tum was wrongly decided. On the other hand, in

Hernandez

- Serrano v. Barr

, the Sixth Circuit held that the regulations unambiguou sly do not authorize the general use of

administrative closure and that Castro

- Tum was correctly decided. 981 F.3d 459 (6 th Cir. 2020). That court held that §§ 1003.10 and 1003.1(d) do not delegate to IJs or the Board12 “the general authority to suspend in definitely immigration proceedings by administrative closure.” 3 Id. at 462.

IV. Discussion

Arcos Sanchez argues that 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) unambiguously grant IJs and the Board the general authority to administratively close cases by authorizing them to take “any action” that is “appropriate and necessary” for the dispositi on of cases. As such, Arcos Sanchez maintains

that Castro

- Tum was wrongly decided, and that the Board’s decision should be vacated and remanded so that he may seek

administrative closure before the IJ. His position reflects the rulings of the Fourth and Seventh Circuits.

The government, on the other hand, argues that the

Board was correct to appl y Castro

- Tum , because the unambiguous text of the regulations does not confer general authority for administrative closure. This position tracks the ruling of the Sixth Circuit. In the alternative, the government argues that, if we should find the regulations are ambiguous,

then we should defer to Castro

- Tum . In either case, the government asks us to uphold the Board’s decision denying

3 On December 16, 2020, the Executive Office of Immigration Review within the Department of Justice issued a final rule, endorsing the Sixth Circuit’s position on Castro

Tum and codifying the Attorney General’s decision on administrative closure. Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 Fed. Reg. 81588

- 01 (December 16, 2020). This rule took effect on January 15, 202 1 and is not retroactive to this case.

Id.13 Arcos Sanchez’s requ est for remand for administrative closure. We will now address the issue of the general authority of IJs and the Board to administratively close cases.

Our consideration of the regulations, and in turn Castro

Tum , begins with review of the language of 8 C.F.R. §§ 1003.1(d)(1)(ii) and 1003.10(b) to determine whether those regulations are ambiguous as regards any general authority for

administrative closure. “The basic tenets of statutory

construction apply to construction of regulations .” Pa. Fed’n of Sportsmen’s Clubs, Inc. v. Kempthorne , 497 F.3d 337, 351 (3d Cir. 2007). “If a statute or rule is unambiguous, we must give effect to its plain meaning.” Consol P a. Coal Co., LLC v. Fed. Mine Safety & Health Review Comm ’ n , 941 F.3d 95, 104 (3d Cir. 2019) (citing Kisor v. Wilki e, 139 S. Ct. 2400, 2415 (2019) ) . In Kisor , the Supreme Court admonished that “hard interpretive conundrums, even relating to complex rules, can often be solved” without “wav[ing] the ambiguity flag.” 139 S. Ct. at 2415. Indeed, a statute or rule cannot be “genuinely ambiguous” unless it remains unclear after we have “exhaust[ed] all the ‘traditional tools’ of construction.” Id. Consequently, our analysis proceeds by “‘carefully consider[ing]’ the text, structure, history, and pu rpose” of the

statute or regulation. Id. (citation omitted).

In that regard, the Fourth Circuit in Romero applied the standard tools of interpretation by first reading the text of the relevant regulations. Both regulations provide that IJs and the Board “may take any action ... appropriate and necessary for the disposition” of the case. 8 C.F.R. §§ 1003.1(d)(1)(ii) & 1003.10(b). In assessing the word “any” for its plain meaning,

Romero opined, “ ‘ any action ... for the disposition of ’ the case is read most naturally to encompass actions of whatever kind14 appropriate for the resolution of a case.” 937 F.3d at 292 (ci tation omitted) (emphasis added). The Fourth Circuit

concluded

, 4 and we agree, “this would plainly include docket management actions such as administrative closure, which

often facilitate...case resolution.” Id. Second, Romero observed, and we agree, tha t administrative closure qualifies as an “action” under §§ 1003.10(b) and 1003.1(d)(1)(ii). In fact,

the Castro

- Tum decision describes administrative closure as an

action. 27 I. & N. Dec. at 271. Third, Romero noted the only limitation upon “any action” within the text of §§ 1003.10(b) and 1003.1(d)(1)(ii) “is that the circumstances be ‘appropriate

4 Romero v. Barr , 937 F.3d 282 (4th Cir. 2019)

, bolstered its conclusion by comparing these regulations to the plain meaning afforded the word “any” in other statutes or regulations. See, e.g.

, Ali v. Fed. Bure au of Prisons , 552 U.S. 214, 220 (2008) (concluding that “any...other law enforcement officer” means “law enforcement officers of whatever kind”);

Massachusetts v. EPA , 549 U.S. 497, 529 (2007) (repetition of “any” embraced all airborne compounds); Brogan v. United

States , 522 U.S. 398, 400 (1998) (“any” false statement included a false statement “of whatever kind”); United States

v. Gonzales , 520 U.S. 1, 5 (1997) (concluding that the inclusion of the word “any” and the lack of restrictive language left no

ba sis for limiting a provision in a sentencing statute); Harrison v. PPG Indus., Inc. , 446 U.S. 578, 589 (1980) (concluding Congress intended “any” as “expansive language”); Citizens’ Bank of La. v. Parker , 192 U.S. 73, 81, (1904) (“The word any excludes sel ection or distinction. It declares the exemption without limitation.”); Int’l All. of Theatrical & Stage Emps. v.

NLRB , 334 F.3d 27, 34 (D.C. Cir. 2003) (noting that the use of “any” signals that the word it modifies should receive broad definition).15 and necessary’ for IJs and the [Board] to administratively close

a case.” 937 F.3d at 293

. Specifically, this clause requires that any action taken must be appropriate and necessary for the disposition of each case consistent with authorities under the Act and regulations. Precedent shows that the phrase “appropriate and necessary” is treated broadly. Id. (citing Michigan v. EPA , 576 U.S. 743, 752 (2015) (“One does not need to open up a dictionary in order to realize the capaciousness of th is phrase [‘appropriate and necessary’].”);

see also Sossamon v. Texas , 563 U.S. 277, 286 (2011) (noting “the word ‘appropriate’ is inherently context dependent”);

Armour & Co. v. Wantock , 323 U.S. 126, 129

- 30 (1944) (concluding the word “necessary

... has always been recognized as a word to be harmonized with its context”). W e similarly conclude that the use of the phrase “disposition of ...

case” relates to the context

- driven phrase “ appropriate and

necessary. ” Board decisions have illustrated the many contexts

in wh ich administrative closure is “appropriate and

necessary

. ” 5 Thus, the limiting words “appropriate and

5 See Matter of Avetisyan , 25 I. & N. Dec. 688 (B.I.A. 2012) (administrative closure granted pending visa petition on adjustment of status); Matter of Rajah , 25 I. & N. Dec. 127, 135 n.10 (B.I.A. 2009)(administrative closure granted pending prima facie appro vable of visa petition); Matter of Hashmi , 24 I. & N. Dec. 785, 791 n.4 (administrative closure granted pending application for provisional waiver ); see also 8 C.F.R. § 212.7(e)(4)(iii) (DHS regulation requiring individuals in removal proceedings to have the proceedings administratively closed prior to applying for a provisional waiver). Nothing in § 1003.10 or § 1003.1(d)(1)(ii) suggests any limiting parameters on what may be considered “appropriate and necessary.”16 necessary” instruct that any action taken by the IJ or the Board

must consider case

- specific circumstances.

Finally, Romero noted, and we agree, that “the rest of the text of the relevant regulations supports the conclusion that IJs and the [Board] possess broad discretion in how to manage

their cases.” 937 F.3d at 294. As for IJs, § 1003.10(b) concludes, “[i]n all cases, immigration judges shall seek to resolve the questions before them in a timely and impar tial manner consistent with the Act and regulations.” As for the Board, § 1003.1(d)(1) likewise provides that “[t]he Board shall resolve the questions before it in a manner that is timely, impartial, and consistent with the Act and regulations.” We

agree with Romero that “administrative closure may

— contrary to the Attorney General’s argument in Castro

- Tum , 27 I. & N.

Dec. at 288

– 89

— in fact facilitate the timely resolution of an

issue or case.” 937 F.3d at 294

. Indeed, as the Seventh Circuit

stated in Meza Morales

, “not all mechanisms that lengthen the proceedings of a case prevent ‘timely’ resolution.” Meza

Morales , 973 F.3d at 665.

In an opinion by now

- Justice Amy Coney Barrett, t he

Seventh Circuit conclude d in Meza Morales that “the immigration regulations that grant immigration judges their general powers [are] broad enough to implicitly encompass that [administrative closure] authority.” Id. Meza Morales cited the example given by the Fourth Circuit in Romero of

when “appropriate and necessary actions ” could include

administrative closure: “cas es in which two coordinate offices in the executive branch are simultaneously adjudicating collateral applications [and] closing one proceeding might help

advance a case toward resolution.” Id. (citing Romero , 937 F.3d at 293). And it rejected the Government’s arguments

,17 such as that other regulatory provisions would be rendered superfluous or that delays caused by administrative closure are forbidden by t he regulations. The opinion concludes that the regulatory preference for timeliness “is not a hard and fast deadline; some cases are more complex and simply take longer

to resolve

, ” and therefore that preference “doesn’t justify departure from the plain t ext of the rule.” Id. at 665. In the end, “[e]xpeditiousness may be one

... goal [of the regulations], but it is not the only goal.” Id. at 666.

We are fully persuaded that, as discussed in Romero

and Meza Morales

, the regulations afford IJs and the Board authority to take any action (including administrative closure)

as is appropriate and necessary (in the context of each case)

for the disposition of such case to resolve questions in a timely and impartial manner co nsistent with the Act and regulations. After applying the standard tools of interpretation, by considering the text, structure, history, and purpose of 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii), we hold that the plain language establishes that general administrative closure authority is unambiguously authorized by these regulations.

Yet, t he government argues that the very same regulations unambiguously do not confer general authority for

administrative closure. 6 In Castro

- Tum , the Attorney General

6 Our dissenting colleague similarly contends that the regulations do not empower IJs or the BIA to administratively

close cases. The disagreement here, however, seems to be directed at how broadly those regulations were interpreted and applied prior to Castro

- Tum , under the standa rd set out in Avetisyan , rather than at the correctness of Castro

- Tum

itself. ( See Dissent at 10 (“But those phrases, broad or not, are18 said as much and noted that

, “[a]lthough described as a temporary suspension” of removal proceedings, “administrative closure is effectively permanent in most

instances.” 27 I. & N. Dec. at 272. He reason ed that the regulations do not confer general administrative authority

because such action effectively amounts to an indefinite suspension that delays or prevents the final disposition of a

case and thus conflict s with regulations requiring IJs to timely

resolve cases. 27 I. & N. at 285. T he Sixth Circuit majority in

Hernandez

- Ser rano agreed with Castro

- Tum and affirmed its

conclusion that the regulations do not confer general authority

for administrative closure.

not best understood to render section 1003.10(b) without limitation and provide IJs nearly unfettered discretion. To t he contrary, ‘appropriate and necessary’ is itself an important restriction on the scope of the Attorney General’s delegation, and one that comes with some bite.”).) To that end, the dissent criticizes our example of an immigration adjudication prevented by the shuttling of a file back and forth between USCIS and the Office of Chief Counsel, calling such evidence “too light a breeze to propel a vast delegation of general administrative closure authority.” (Dissent at 1 5 .) But the question before us is no t whether the regulations endow IJs and the BIA with a “vast delegation of general administrative closure authority.” It is whether they entirely foreclose IJs or the BIA from ever exercising some degree of discretion to administratively close a case, as the Attorney General decided

in Castro

- Tum

. Thus, the dissent’s characterization of

“administrative closure” as “the antithesis of a final disposition” does not convince us that Castro

- Tum was correctly decided. (Dissent at 7 (quoting Castro

- Tum , 27 I. & N. Dec. at 285).19 Both Castro

- Tum and Hernandez

- Serrano emphasize a concern that administrative closure leads to delay or no final decision in removal cases. In fact, the opening sentence of the

Hernandez

- Serrano majority opinion state s : “ [a] regulation delegating to immigration judges authority to take certain actions ‘[i]n deciding the individual cases before them’ does not delegate to them general authority not to decide those cases

at all.” 981 F.3d at 461. Th at court also observed, “ [t]hus the reality is that, in hundreds of thousands of cases, administrat ive closure has amounted to a decision not to apply the Nation's immigration laws at all.” Id. a t 463. Concern about

administrative closure s causing widespread delay and non

decision appears to have motivated both the Attorney

General ’s and the Sixth Circuit ’s decisions. If IJs are abusing

their discretion

, th at may very well be cause for concern, but it

does not relate to the question that Castro Tum purported to

answer

— whether the regulations confer general authority for

administrativ e closure. The majority in Herandez

- Serrano

even conceded that “ the ‘timely manner’ language is hortatory,” but concluded that “the IJ can resolve neither questions nor a case once it is administratively closed.” Id

.

To this same point, the dissent observed, and we agree:

whether immigration courts have granted

adm inistrative closure too frequently, and have failed to reopen administratively closed cases too often, is of no significance to the question of

whether Castro

- Tum wrongly held that IJs and

the BIA never have the discretion to decide that administrative closure is “appropriate and20 necessary for the disposition” of immigration

cases.

981 F.3d at 471. The authority to administratively close cases, within the appropriate and necessary context of each case, can and does permit IJs and the B oard to answer the questions before them in a timely and impartial manner consistent with the Act and the regulations. Or in other words, delay in the

case through administrative closure does not, by definition, prevent the timely disposition of the case and resolution of questions.

As discussed above, certain removal cases require resolution of questions that depend upon decisions from other

tribunals or agencies over which neither the IJ nor the Board

controls

. The Attorney General’s Castro

- Tum decision fails to acknowledge the fact that allow ing time for the IJ or the Board

to receive the outcome from an other tribunal or agenc y enable s resolution of relevant questions and thus facilitates the timely disposition of a removal case. Without the ge neral authority to administratively close appropriate cases when necessary, the IJs and the Board may not have a sufficiently developed record and may be less effective in managing cases . Such a result is not contemplated by the Act or the regulations.

That some IJs and the Board may have used, or misused, administrative closure to unduly delay or permanently close

and not decide cases does not answer the legal question of whether IJs or the Board have the general authority to administratively clo se cases under the regulations. Improper use of administrative closure to attain objectives not authorized by the regulations is appropriately challenged and redressed through appropriate review, including judicial review under an21 abuse

- of

- discretion s tan dard. See Vahora , 626 F.3d at 917 (review of administrative closure under an abuse of discretion standard).

In addition, the INA grants the Attorney General rulemaking authority to set standards for immigration judges

and the Board. 8 U.S.C. § 1103(g)(2). Indeed, 8 C.F.R. § 1003.10(b) empowers IJs to exercise independent judgment

and discretion in their decision making

, “subject to the applicable governing standards” and other regulatory

constraints. Id. As such, concern for undue delay or non

decision in removal dispositions through the application of that

discretion , to the extent not already addressed through the existing regulatory framework, can be redressed through agency rulemaking and standards. “ T he Attorney General may

amend t hese rules through the proper procedures. But he may not, ‘under the guise of interpreting a regulation, ... create de facto a new regulation’ that contradicts the one in place.” Meza

Morales

, 973 F.3d at 667 (citation omitted). And

, even if a regulation leads to bad policy, we “may not do the Attorney

General ’ s work for him.” 7 Hernandez

- Serrano

, 981 F.3d at

474 (Clay, J., dissenting)

.

7 The government submitted an argument in the alternative that, if the regulations were found to be ambiguous to the question of general administrative authority to administratively close immigration cases, then principles of agency defe rence should be afforded to apply the agency interpretation as presented in the Castro

- Tum decision. However, this appeal is resolved by our finding that the regulations unambiguously grant general authority for IJs and the Board to administratively close immigration cases. No issue of any deference remains for discussion or decision.22 V. Conclusion

For the reasons stated above, we conclude that the relevant regulations confer the general authority to administratively close cases to IJs and the Board. We therefore grant the petition for review, vacate the Board’s order, and remand for proceedings con sistent with this opinion.