7th Circuit grants petition for review in Indiana immigration case

The 7th Circuit Court of Appeals has ruled for a man fighting his deportation in a case concerning immigration judges’ power to close a removal or deportation case administratively while a noncitizen pursues other relief.

Hector Manuel Zelaya Diaz entered the United States illegally for the first time in 1995 and was subsequently placed in deportation proceedings with an order to show cause. Zelaya, who never received notice that he was scheduled to appear, failed to show and a final order of deportation was entered in his absence.

Zelaya later left the country but re-entered sometime before the end of 1998. Sixteen years later, U.S. Immigration and Customs Enforcement learned of Zelaya’s presence in the country following a traffic-related arrest in Indiana. Zelaya then filed a motion to reopen his old deportation case and an immigration judge granted the motion because the record showed that the initial Order to Show Cause in 1995 had never reached him.

In 2018, Zelaya moved for administrative closure of his deportation proceeding to allow for 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 8 U.S.C. § 1229b(b). The move would enable him to seek cancellation of removal, but the immigration judge denied his request for administrative closure.

He appealed to the Board of Immigration Appeals, which also dismissed Zelaya’s appeal and ordered voluntary deportation. It concluded that administrative closure was not warranted, citing Attorney General William Barr’s opinion in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), which sharply restricted the ability of immigration judges and the board to close cases administratively.

But the 7th Circuit Court of Appeals granted Zelaya’s petition for review of the board’s decision, agreeing with his second argument for reversing the denial of administrative closure.

After rejecting his argument that a grant of administrative closure is mandatory under the (United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954)) doctrine of administrative law, the 7th Circuit agreed 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 (Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012)) and (Matter of W-Y-U, 27 I&N Dec. 17 (BIA 2017)) factors.

“Our decision in (Meza Morales v. Barr, https://www.theindianalawyer.com/articles/7th-circuit-halts-deportation-of-crime-victim-allows-immigration-judges-to-close-cases 973 F.3d 656, 667 (7th Cir. 2020)) 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,” Circuit Judge David F. Hamilton wrote for the 7th Circuit.

“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 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,” it concluded.

The case is Hector Zelaya Diaz v. Jeffrey A. Rosen, 20-1304.

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