In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 20-1304 

HECTOR MANUEL ZELAYA DIAZ,

a.k.a. ELVIS DANIEL ROSALES-SARMIENTO, 

Petitioner, 

v.

JEFFREY A. ROSEN,

Acting Attorney General of the United States, 

Respondent. 

____________________ 

Petition for Review of a Decision of the 

Board of Immigration Appeals. 

No. A073-755-354. 

____________________ 

ARGUED NOVEMBER 5, 2020 — DECIDED JANUARY 15, 2021 

____________________ 

Before SYKES, Chief Judge, and HAMILTON and SCUDDER, 

Circuit Judges. 

HAMILTON, Circuit Judge. This petition for judicial review 

of an immigration decision focuses on the power of an immigration judge to close a removal or deportation case administratively while the non-citizen pursues other relief. The Board 

of Immigration Appeals denied relief in this case by following 
2 No. 20-1304 

a directive of the Attorney General that sharply limited the 

power of immigration judges to close a case administratively. 

Earlier this year, however, we held that the Attorney General’s directive was contrary to law. Meza Morales v. Barr, 973 

F.3d 656, 667 (7th Cir. 2020). The Board of Immigration Appeals simply did not exercise its discretion according to law 

in this case. We therefore grant the petition for review and remand for a proper exercise of discretion under the Board’s 

precedents in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), 

and Matter of W-Y-U, 27 I&N Dec. 17 (BIA 2017). 

I. Factual and Procedural History

Petitioner Hector Manuel Zelaya Diaz entered the United 

States without inspection on May 6, 1995. He was placed in 

deportation proceedings with an Order to Show Cause. He 

was scheduled to appear for a master calendar hearing on August 23, 1995. The notice of that hearing did not reach him, 

and Zelaya failed to appear. A final order of deportation was 

entered in his absence. Zelaya later left the United States, but 

he re-entered sometime before December 30, 1998. In 2014, 

U.S. Immigration and Customs Enforcement learned of Zelaya’s presence in the United States following a traffic-related 

arrest in Indiana. On February 3, 2014, Zelaya filed a motion 

to reopen his old deportation case. An immigration judge 

granted that motion because the record showed that the initial 

Order to Show Cause in 1995 had never reached him. 

At a March 22, 2018 master calendar hearing, Zelaya 

moved for administrative closure of his deportation proceeding to allow for what is known in the world of immigration 

law as “repapering,” by which a deportation proceeding that 

began under pre-1996 law can be converted into a cancellation-of-removal proceeding under 1996 legislation codified in 
No. 20-1304 3

8 U.S.C. § 1229b(b). Repapering would enable Zelaya to seek 

cancellation of removal, for which he appears to be legally eligible. 

The immigration judge denied his request for administrative closure. Zelaya appealed to the Board of Immigration Appeals, and on January 23, 2020, the Board dismissed Zelaya’s 

appeal and ordered voluntary deportation. The Board concluded that administrative closure was not warranted. The 

Board cited the Attorney General’s opinion in Matter of CastroTum, 27 I&N Dec. 271 (A.G. 2018), which sharply restricted 

the ability of immigration judges and the Board itself to close 

cases administratively. The Board then said it was basing its 

decision in part on the Department of Homeland Security’s 

opposition to closure and in part on the Department’s stated 

intention not to exercise its discretion to “repaper” the case. 

The Board’s opinion did not indicate that it applied the factors 

set out in its own precedents of Avetisyan and W-Y-U. 

Zelaya has petitioned for review of the Board’s decision. 

We exercise jurisdiction under 8 U.S.C. § 1252(a)(2)(D), which 

permits judicial review of questions of law, and 8 U.S.C. 

§ 1252(a)(1), which permits judicial review of final orders of 

removal. See Vahora v. Holder, 626 F.3d 907, 919 (7th Cir. 2010) 

(“In sum, the decision to deny administrative closure ... is 

within our cognizance.”). 

We review an immigration court’s decision to deny administrative closure for abuse of discretion. Vahora, 626 F.3d 

at 919 (when reviewing a decision to deny administrative closure, “[w]e apply ordinary judicial standards to determine 

whether the [immigration judge] abused his discretion....”). 

We will uphold the Board’s decision unless it “was made 

without a rational explanation, inexplicably departed from 
4 No. 20-1304 

established policies, or rested on an impermissible basis....” 

Khan v. Holder, 766 F.3d 689, 696 (7th Cir. 2014), quoting Victor v. Holder, 616 F.3d 705, 708 (7th Cir. 2010). 

II. Administrative Closure and “Repapering”

Before 1996, a person in deportation proceedings was eligible for a defense called “suspension of deportation” if she 

met certain criteria in § 244 of the Immigration & Nationality 

Act. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and the Nicaraguan Adjustment 

and Central American Relief Act of 1997 (NACARA) tightened eligibility for suspension of deportation, which the new 

law designated “cancellation of removal.” 8 U.S.C. § 1229b(b). 

By authorizing the Attorney General to close deportation proceedings administratively to allow for repapering into removal proceedings, the new legislation created a safety valve 

allowing people who would have been eligible for suspension 

of deportation under the old law to apply eventually for cancellation of removal. 8 U.S.C. § 1101 note; 110 Stat. 3009−626, 

IIRIRA § 309(c)(3). 

A person may be eligible for cancellation of removal if she: 

(1) has been physically present in the United States for a continuous period of not less than ten years preceding the application; (2) has been a person of good moral character during 

such period; (3) has not been convicted of specified offenses; 

and (4) establishes that removal would result in exceptional 

and extremely unusual hardship to her spouse, parent, or 

child who is a citizen of the United States or a legal permanent 

resident. 8 U.S.C. § 1229b(b)(1). 
No. 20-1304 5

III. Discretionary Considerations for Administrative Closure

Zelaya offers two distinct arguments for reversing the 

Board’s decision affirming the denial of administrative closure. We reject the first but agree with the second. 

His first argument is that a grant of administrative closure 

is mandatory under the Accardi doctrine of administrative 

law. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 

260, 268 (1954) (holding that Board of Immigration Appeals 

was required to follow its own regulations in deciding 

whether to suspend deportation). Accardi and its progeny 

teach generally that federal agencies are required to follow 

their own regulations and some other formally adopted procedures, including those that govern exercises of an agency’s 

discretion. Zelaya cites several internal memoranda on administrative closure that were issued long before the Attorney 

General’s 2018 directive in Castro-Tum that nearly eliminated 

immigration judges’ ability to close cases administratively.

Zelaya did not raise this argument in the Board proceedings, but it fails on the merits in any event. The Accardi doctrine generally does not apply to an agency’s internal memoranda, at least those that are neither designed to protect individual rights nor intended to have the force of law. See, e.g., 

Morton v. Ruiz, 415 U.S. 199, 235 (1974) (declining to give legal 

effect to agency’s internal manual that had not been promulgated under Administrative Procedure Act); Montilla v. I.N.S., 

926 F.2d 162, 167 (2d Cir. 1991) (enforcing INS regulation and 

discussing application of Accardi doctrine to less formal policies designed to protect individual rights); Damus v. Nielsen, 

313 F. Supp. 3d 317, 337 (D.D.C. 2018) (discussing scope of 

Accardi in immigration context: “agencies can be held 
6 No. 20-1304 

accountable to their own codifications of procedures and policies”). 

The internal memoranda Zelaya relies upon do not reach 

that level of formality or substantive importance in protecting 

individual rights. Cf. Vitarelli v. Seaton, 359 U.S. 535, 539 (1959) 

(applying Accardi to enforce Department of Interior regulations); Service v. Dulles, 354 U.S. 363, 387−89 (1957) (enforcing 

Department of State regulations); Caldwell v. Miller, 790 F.2d 

589, 610 (7th Cir. 1986) (enforcing Bureau of Prisons regulations); VanderMolen v. Stetson, 571 F.2d 617, 624 (D.C. Cir. 

1977) (enforcing Air Force regulation). We are not persuaded 

that the Accardi doctrine required the immigration judge and 

Board to grant Zelaya’s request for administrative closure. 

Zelaya’s second argument is that the Board abused its discretion by making an error of law in his case, by following the 

Attorney General’s directive in Castro-Tum and failing to apply the Avetisyan and W-Y-U factors. In Meza Morales, we held 

that the Attorney General’s directive was contrary to law and 

that immigration judges and the Board of Immigration Appeals are “not precluded from administratively closing cases 

when appropriate.” 973 F.3d at 667. 

Explaining this argument requires a bit of history on administrative closure of deportation and removal proceedings. 

While the subject is arcane, it can have enormous practical importance for a person like Zelaya, who is enmeshed in our 

complex system of immigration, simultaneously engaged in a 

removal proceeding and a parallel proceeding seeking lawful 

status.1

1 According to the Sixth Circuit, more than 400,000 deportation or removal cases have been closed administratively, and more than 350,000 of 
No. 20-1304 7

Before 2018, Board of Immigration Appeals precedent told 

immigration judges to decide requests for administrative closure based on factors identified in Matter of Avetisyan, 25 I&N 

Dec. 688 (BIA 2012), and Matter of W-Y-U, 27 I&N Dec. 17 (BIA 

2017). Avetisyan listed six factors: “(1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will 

succeed on any petition, application, or other action he or she 

is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either 

party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings ... 

when the case is recalendared before the Immigration Judge 

or the appeal is reinstated before the Board.” 25 I&N Dec. at 

696. Matter of W-Y-U followed and clarified Avetisyan, teaching that “the primary consideration for an Immigration Judge 

in determining whether to administratively close or recalendar proceedings is whether the party opposing administrative 

closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” 27 I&N Dec. at 20.

Thus, before Castro-Tum, the state of law and practice was 

that an immigration judge had the authority and discretion to 

grant administrative closure guided by these factors established in the Board’s precedential decisions. In 2018, however, 

the Attorney General’s Castro-Tum directive said that immigration judges did not have such authority, regardless of the 

reasons offered for administrative closure: “immigration 

judges and the Board do not have the general authority to suspend indefinitely immigration proceedings by administrative 

those had not been reopened as of October 2018. Hernandez-Serrano v. Barr, 

981 F.3d 459, 461 (6th Cir. 2020). 
8 No. 20-1304 

closure.” 27 I&N Dec. at 272. Castro-Tum clearly overruled 

Avetisyan and W-Y-U to the extent they recognized and then 

guided immigration judges’ discretionary power to close administratively. 

The Board in Zelaya’s case understandably cited the Attorney General’s new directive and then affirmed the immigration judge’s denial of administrative closure without applying 

the factors from Avetisyan or W-Y-U. As noted, however, we 

held in Meza Morales that Castro-Tum was contrary to law. We 

will not repeat our reasoning here, but we concluded that immigration regulations plainly grant immigration judges 

broad authority and discretion to take “any action ... that is 

appropriate and necessary for the disposition of [the cases before them],” that “‘appropriate and necessary’ is a capacious 

phrase,” and that administrative closure is clearly an “action” 

that immigration judges may take. 973 F.3d at 665, quoting 8 

C.F.R. § 1003.10(b).

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 
No. 20-1304 9

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.