[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-14342

Non-Argument Calendar

________________________

Agency No. A013-370-126

FREDY GUTIERREZ CASTILLO, 

a.k.a. Freddy Gutierrez, 

a.k.a. Freddy Gugierrez, 

 Petitioner,

 versus

U.S. ATTORNEY GENERAL, 

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(July 14, 2015)

Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Fredy Gutierrez Castillo, a native and citizen of Colombia who served in the 

United States Armed Forces during the Vietnam War, has petitioned for review of 

a decision of the Board of Immigration Appeals (“BIA”) affirming an immigration 

judge’s (“IJ”) determination that he was removable for having been convicted of 

an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). Castillo contends that the 

IJ erroneously found a prior drug conviction to be a “drug trafficking” aggravated 

felony, that the BIA should have corrected this error, and that removal proceedings 

should have been continued or terminated pending consideration of Castillo’s 

naturalization application under 8 U.S.C. § 1440 (concerning naturalization for 

certain veterans). As part of our review of this petition, we are asked to decide 

whether the BIA’s interpretation of a regulation in Matter of Acosta Hidalgo, 24 I. 

& N. Dec. 103 (BIA 2007), is entitled to our deference. After careful review, we 

deny the petition for review.1

I.

Castillo was admitted to the United States as a lawful permanent resident in 

1965. He was eleven years old at the time. He served in the United States Army 

in Vietnam from 1971 to 1973, when he was honorably discharged. After his 

discharge, Castillo filed a petition for naturalization with the former Immigration 

 1

 Castillo expressly does not challenge the BIA’s determination that he was not entitled 

to relief from removal under former 8 U.S.C. § 1182(c); current 8 U.S.C. § 1182(h); or the 

United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment 

or Punishment, 8 C.F.R. § 208.16(c). Consequently, we do not address these issues. 

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and Naturalization Service (“INS”). However, INS dismissed his naturalization 

petition for failure to prosecute in May 1973. Castillo did not attend a scheduled 

interview on the petition, of which he may have lacked notice. 

In 2010, the Department of Homeland Security (“DHS”) served Castillo

with a Notice to Appear (“NTA”), charging him as removable from the United 

States on several grounds. The NTA alleged that Castillo had three convictions for 

aggravated felonies, as defined by 8 U.S.C. § 1101(a)(43), which each made him 

subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii). These prior convictions 

under Florida law were for the following violations: (1) manufacture of cannabis

in September 1992; (2) burglary in October 1987; and (3) attempted second-degree 

murder in March 1978.2

 

Numerous hearings were held before the IJ to determine whether Castillo

was eligible for relief from removal. At a hearing in April 2011, Castillo’s counsel 

agreed with the IJ that Castillo was not eligible to apply for naturalization as a war 

veteran, under 8 U.S.C. § 1440, because he had a “permanent bar” to naturalization 

based on an aggravated-felony conviction after his service. At some point 

thereafter, Castillo filed with the United States Citizenship and Immigration 

 2

 The NTA also lists several other prior convictions: possession of cannabis (1974); 

possession of cannabis (1976); possession of cocaine (1990); unlawful sale or purchase of 

cannabis (1990). In subsequent proceedings, it came out that Castillo also had been found to 

have violated a domestic-violence protective order in 2002 and that he had been convicted of 

threatening a public official in 2003. 

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Services (“USCIS”) a motion to reopen his 1973 naturalization application on a 

nunc pro tunc basis. 

At the final hearing before the IJ on January 8, 2013, Castillo moved for a 

continuance because his motion to reopen his naturalization application was still 

pending before the USCIS. Noting that Castillo had not provided any evidence 

indicating that the motion to reopen had been granted or that the USCIS was 

seriously considering reopening and granting his naturalization application nunc 

pro tunc, the IJ denied a continuance.

Instead, the IJ ordered Castillo removed to Colombia as an aggravated felon, 

see 8 U.S.C. § 1227(a)(2)(A)(iii), specifically finding “that a conviction for 

manufacture of cannabis is a drug trafficking conviction,” and therefore an 

aggravated felony, see id. § 1101(a)(43)(B). The IJ also concluded that Castillo’s 

convictions for burglary and attempted second-degree murder were aggravated 

felonies. 

After the IJ’s decision, Castillo retained a different attorney, and he filed a 

timely appeal to the BIA. In his brief to the BIA, Castillo contended that his 1992 

conviction for manufacture of cannabis was not an aggravated felony, in light of 

the Supreme Court’s intervening decision in Moncrieffe v. Holder, 569 U.S. ___, 

133 S. Ct. 1678 (2013). Castillo also maintained that, contrary to his prior 

counsel’s understanding, he was prima facie eligible for naturalization under 8 

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U.S.C. § 1440 based on his military service and did not need to reopen his earlier 

naturalization petition on a nunc pro tunc basis. Castillo asked for the BIA to 

remand his case to the IJ for further consideration in light of Moncrieffe.

On August 29, 2014, the BIA affirmed the IJ’s order of removal. The BIA 

noted that Castillo had been charged with three separate grounds of removability 

based on an aggravated-felony conviction. It determined that Castillo was 

removable as charged based on his conviction for attempted second-degree murder, 

a conviction he had not specifically challenged to the BIA. In light of that 

determination, the BIA found it unnecessary to evaluate whether Castillo’s 

convictions for burglary or manufacture of cannabis also were aggravated 

felonies.3

 Although the BIA noted that these convictions may be relevant to 

Castillo’s eligibility for naturalization, it, nonetheless, found that they were “not 

germane to this decision.” The BIA also determined, relying on its decision in

Matter of Acosta Hidalgo, 24 I. & N. Dec. 103 (BIA 2007), that the IJ properly 

denied Castillo’s request for a continuance because the DHS had not provided an 

affirmative communication regarding his prima facie eligibility to naturalize and 

had urged that Castillo was ineligible for naturalization. This petition for review 

followed.

 3

 The BIA did note, however, that intervening Supreme Court decisions affected whether 

Castillo’s burglary and manufacture of cannabis convictions could be considered aggravated 

felonies. See Descamps v. United States, 133 S. Ct. 2276 (2013); Moncrieffe, 133 S. Ct. 1678. 

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II.

When a petitioner appeals from a final order of removal that is based on a 

criminal offense covered in 8 U.S.C. § 1227(a)(2)(A)(iii), we have jurisdiction to 

review only constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(C)–

(D). We generally review legal determinations de novo. Ayala v. U.S. Att’y Gen., 

605 F.3d 941, 948 (11th Cir. 2010). 

We review only the BIA’s decision as the final judgment, unless the BIA 

expressly adopts the IJ’s decision. Malu v. U.S. Att’y Gen., 764 F.3d 1282, 1289 

(11th Cir. 2014). Where the BIA explicitly agrees with findings of the IJ, we may 

review the decisions of both the BIA and the IJ as to those issues. See Ayala, 605 

F.3d at 948. Nonetheless, our review is limited to the issues actually decided by 

the BIA. Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1344 (11th Cir. 2007); see 

I.N.S. v. Orlando Ventura, 537 U.S. 12, 16-17, 123 S. Ct. 353, 355-56 (2002).

III.

Castillo contends that, in view of Moncrieffe,

4 the IJ erroneously classified 

his 1992 conviction for manufacture of cannabis as a drug-trafficking aggravated 

felony, and the BIA erred by declining to correct the error or to remand the case to 

 4

 In Moncrieffe, the Supreme Court held that an alien’s conviction for marijuana 

distribution does not qualify as a drug-trafficking aggravated felony under § 1101(a)(43)(B) 

unless the offense of conviction categorically involves either remuneration or more than a small 

amount of marijuana. 133 S. Ct. at 1693-94.

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the IJ. But for the IJ’s erroneous determination, he asserts, he would be prima 

facie eligible for naturalization, and his removal proceedings could have been 

continued or terminated. Castillo also argues that the BIA’s decision in Acosta 

Hidalgo is ultra vires to the regulation it purports to interpret. 

A.

We will not address Castillo’s contention that the IJ erred in characterizing 

his conviction for manufacture of cannabis as an aggravated felony, see 8 U.S.C. 

§ 110(a)(43)(B), because the IJ’s determination was not adopted by the BIA and 

therefore is not part of the order under review. See Malu, 764 F.3d at 1289; Lopez, 

504 F.3d at 1344. In its order, the BIA determined only that Castillo was 

removable on the basis of his conviction for attempted second-degree murder, see 

U.S.C. § 1101(a)(43)(A) & (U), and expressly declined to consider his other two 

convictions. Therefore, the only conviction we may review is for attempted 

second-degree murder, but Castillo does not contend that the BIA committed any 

error in this respect. Because we are not permitted to review his challenge to the 

manufacture-of-cannabis conviction, Castillo has abandoned any challenge to the 

substantive basis for his removal. See Sapuppo v. Allstate Floridian Ins. Co., 739 

F.3d 678, 680 (11th Cir. 2014).

Castillo also contends that the BIA erred in declining to review the IJ’s 

determination that his 1992 conviction for manufacture of cannabis was an 

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aggravated felony. But he has identified no legal authority to support that 

contention. Nor would the BIA’s decision on this question have affected whether 

Castillo was removable under § 1127(a)(2)(A)(iii). Rather, Castillo’s primary 

concern appears to be the effect of the BIA’s abstention on his naturalization 

application, which is an issue intertwined with Castillo’s challenge to the BIA’s 

decision in Acosta Hidalgo, addressed below. 

B.

Castillo maintains that the BIA’s decision in Acosta Hidalgo erroneously 

interprets a regulation permitting IJs to terminate removal proceedings so that a 

petitioner may pursue a naturalization application with the DHS. 

An agency’s interpretation of its own ambiguous regulation is controlling 

“unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 

519 U.S. 452, 461, 117 S. Ct. 905, 911 (1997) (internal quotation marks omitted); 

Zhu v. U.S. Att’y Gen., 703 F.3d 1303, 1307, 1309-10 (11th Cir. 2013).

The regulation at issue, 8 C.F.R. § 1239.2(f), states that an IJ 

may terminate removal proceedings to permit the alien to 

proceed to a final hearing on a pending application or 

petition for naturalization when the alien has established 

prima facie eligibility for naturalization and the matter 

involves exceptionally appealing or humanitarian factors; 

in every other case, the removal hearing shall be 

completed as promptly as possible notwithstanding the 

pendency of an application for naturalization during any 

state of the proceedings. 

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In Acosta Hidalgo, the BIA determined that, pursuant to § 1239.2(f), an IJ 

may terminate removal proceedings based on an alien’s pending naturalization 

application only if the DHS has issued an affirmative communication indicating 

that the alien is prima facie eligible for naturalization. 24 I. & N. Dec. at 106

(reaffirming Matter of Cruz, 15 I. & N. Dec. 236 (BIA 1975)). The BIA reasoned 

that, because “neither the Board nor the [IJs] have jurisdiction to determine an 

alien’s eligibility for naturalization, which now lies exclusively with the DHS,” 

pursuant to 8 U.S.C. § 1421, neither the BIA nor IJs have authority to determine 

prima facie eligibility for naturalization under § 1239.2(f). Id. at 105-06. 

Consequently, according to the BIA, “it is appropriate for the Board and the [IJs] 

to require some form of affirmative communication from the DHS prior to 

terminating proceedings based on his pending naturalization application.” Id. at 

106. The BIA also noted that both it and the IJs may lack expertise to determine 

an alien’s prima facie eligibility for naturalization. Id. at 108.

Castillo contends that he is prima facie eligible for naturalization under 

§ 1440. Naturalization under § 1440 is available to certain veterans who have 

honorably served in active duty in the United States Armed Forces during periods 

of military hostilities, including the Vietnam War. 8 U.S.C. § 1440; 8 C.F.R. 

§ 329.2; see generally Nolan v. Holmes, 334 F.3d 189, 198-201 (2d Cir. 2003). 

Section 1440 exempts war veterans from normal residence and physical presence 

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requirements. Castiglia v. I.N.S., 108 F.3d 1101, 1102 (9th Cir. 1997); see 8 

C.F.R. § 329.2(e). The applicable regulations provide that to be eligible for 

naturalization under § 1440, a veteran applicant must establish, among other 

requirements, that he “[h]as been, for at least one year prior to filing the 

application for naturalization, and continues to be, of good moral character.” 

8 C.F.R. § 329.2(d).

According to Castillo, only his 1992 conviction for manufacture of cannabis 

could, by regulation, preclude a finding of “good moral character” for purposes of 

§ 1440, and only then if it is classified, erroneously, as an aggravated felony. See 8 

C.F.R. § 316.10(b)(1)(ii) (providing that an applicant lacks good moral character if 

the applicant has been convicted of an aggravated felony, as defined in 

§ 1101(a)(43), “on or after November 29, 1990.”).5

 But see 11 U.S.C. § 1101(f)(8)

(stating that no person shall be regarded as a person of good moral character “who 

at any time has been convicted of an aggravated felony”); Boatswain v. Gonzales, 

414 F.3d 413, 417-18 (2d Cir. 2005) (holding that the statutory bars listed in 

§ 1101(f), including § 1101(f)(8), apply to the good moral character requirement in 

§ 1440); Castiglia, 108 F.3d at 1102-04 (same; stating that Congress intended “that 

aggravated-felony convictions be an absolute bar to a finding of good moral 

 5

 Castillo asserts that his conviction for attempted second-degree murder does not 

preclude a finding of good moral character because it was before November 1990.

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character”). This question is not at issue, however, so we accept Castillo’s 

assertion as true solely for purposes of this opinion. 

We have not previously addressed the soundness of Acosta Hidalgo. The six 

circuit courts that have addressed this issue have unanimously upheld Acosta 

Hidalgo’s interpretation of § 1239.2(f). See Shewchun v. Holder, 658 F.3d 557, 

562-65 (6th Cir. 2011); Barnes v. Holder, 625 F.3d 801, 808 (4th Cir. 2010); 

Ogunfuye v. Holder, 610 F.3d 303, 308 (5th Cir. 2010); Zegrean v. Att’y Gen. of 

United States, 602 F.3d 273, 274-75 (3d Cir. 2010); Perriello v. Napolitano, 579 

F.3d 135, 142 (2d Cir. 2009); Hernandez de Anderson v. Gonzales, 497 F.3d 927, 

933-34 (9th Cir. 2007).6

We conclude that that Acosta Hidalgo’s interpretation of § 1239.2(f) is

reasonable and not plainly erroneous or inconsistent with the regulation. See Auer, 

 6

 We note that Castillo’s case is factually different from these cases because Castillo

sought naturalization under § 1440. Although 8 U.S.C. § 1429 generally bars the DHS from 

considering a naturalization application while removal proceedings are pending, this section does 

not apply to applications under § 1440. See 8 U.S.C. § 1429; 8 C.F.R. § 329.2(e)(3). Some of 

the cases cited have examined the interplay between 8 C.F.R. § 1329.2(f) and 8 U.S.C. § 1429. 

See, e.g., Perriello, 579 F.3d at 141-42 (upholding Acosta Hidalgo but concluding that § 1429 

can make it “impossible for an alien to establish prima facie eligibility for naturalization”). 

Nonetheless, this distinction does not affect our analysis of Acosta Hidalgo because the BIA’s 

reasoning does not depend on § 1429, but rather on the DHS’s exclusive jurisdiction over 

naturalization generally, including under § 1440. 

Further, we note that Castillo did not move to terminate proceedings under § 1239.2(f) 

before the IJ, instead moving to continue them. But given that it is unnecessary to terminate 

removal proceedings for the DHS to consider a § 1440 naturalization application, a continuation 

in the circumstances of the case would have had a similar practical effect as termination. In 

addition, as the government notes in its brief, “Castillo . . . seeks either a continuance, remand, or 

termination of his proceedings so that he may pursue his naturalization application.” (Appellee’s 

Br. at 21-22 n.8). With these points in mind, we address Acosta Hidalgo.

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519 U.S. at 461, 117 S. Ct. at 911; Zhu, 703 F.3d at 1310; see also Chen v. U.S. 

Att’y Gen., 672 F.3d 961, 965 n.2 (11th Cir. 2011). Therefore, we defer to the 

agency’s decision requiring some form of affirmative communication from the 

DHS before an IJ may terminate removal proceedings based on a pending 

naturalization application. 

Contrary to Castillo’s argument, the regulation is not clear that the IJ has 

“unfettered discretion” to grant or deny a § 1239.2(f) motion. The regulation 

provides that the IJ may grant discretionary relief by terminating removal 

proceedings “when the alien has established prima facie eligibility for 

naturalization.” 8 U.S.C. § 1239.2(f). But the regulation leaves open “who is to 

make the prima facie eligibility determination.” Barnes, 625 F.3d at 805; see 

Hernandez de Anderson, 497 F.3d at 934 (observing that the regulation does not 

“specifically authorize IJs to evaluate prima facie eligibility,” and concluding that 

the language of the regulation “arguably implies that an alien shall have 

established eligibility outside the removal proceeding being conducted by the IJ”); 

Nolan, 334 F.3d at 202 (“The regulation does not specify the manner in which such 

prima facie eligibility may be established.”). The BIA’s gap-filling decision in 

Acosta Hidalgo therefore is not inconsistent with the text of the regulation. See 

Chen, 672 F.3d at 965 n.2.

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The BIA’s interpretation is also reasonable. First, Acosta Hidalgo is 

consistent with § 1421, which provides that “[t]he sole authority to naturalize 

persons as citizens of the United States is conferred upon the Attorney General.”7

 

See, e.g., Perriello, 579 F.3d at 142; Zegrean, 602 F.3d at 275. By regulation, the 

Attorney General has delegated this authority to the DHS. See 8 C.F.R. § 310.1(b). 

As the Fourth Circuit has explained, “given that DHS is the only body statutorily 

vested with the power to make naturalization decisions in the first instance, it is 

reasonable to conclude that only DHS has the authority to make prima facie 

determinations of naturalization eligibility.” Barnes, 625 F.3d at 805 (citation 

omitted). In addition, as a general matter, the DHS arguably has the greatest 

institutional expertise regarding the standards for naturalization eligibility, because 

it is the agency charged with adjudicating naturalization petitions. See id. at 805-

06. However, we note that, in this specific case, prima facie eligibility appears to 

have turned on good moral character, which is within the IJ’s expertise.

The BIA’s decision in Acosta Hidalgo is also consistent with the 

regulation’s general intent to have removal proceedings “completed as promptly as 

possible notwithstanding the pendency of an application for naturalization during 

 7 In 1990, Congress divested the federal district courts of authority to consider 

naturalization applications in the first instance and, through § 1421, transferred sole 

naturalization authority to the Attorney General. Barnes, 625 F.3d at 804. This change, in turn, 

gave rise to the BIA’s decision in Acosta Hidalgo. Id. at 804-05. For a thorough overview of the 

evolution of the statutes and regulations leading up to the present state of naturalization and 

removal law, see Perriello, 579 F.3d at 138-42. 

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any state of the proceedings.” 8 C.F.R. § 1239.2(f). Here, as the BIA noted, the 

DHS had sought removal and had urged Castillo’s ineligibility for naturalization. 

Had the IJ nonetheless determined that Castillo was prima facie eligible for 

naturalization, continuing or terminating removal proceedings would likely only 

have caused unjustified delay. See Hernandez de Anderson, 497 F.3d at 935 (“If 

the DHS has already declined to state that an alien is prima facie eligible for 

naturalization, terminating the removal proceedings under § 1239.2(f) is likely to 

produce unwarranted delay.”).

Consequently, we conclude that the BIA’s interpretation of § 1239.2(f) in 

Acosta Hidalgo is reasonable and not inconsistent with the regulation. 

IV.

We, like the IJ and the BIA, do not take lightly Castillo’s honorable service 

to the United States, nor are we unaware of the strong ties Castillo has to the this 

country. However, for the reasons discussed above, we must DENY Castillo’s 

petition for review.

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