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 immi- gration judge to close a removal or deportation case adminis- tratively 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 Gen- eral’s directive was contrary to law. Meza Morales v. Barr, 973 F.3d 656, 667 (7th Cir. 2020). The Board of Immigration Ap- peals simply did not exercise its discretion according to law in this case. We therefore grant the petition for review and re- mand 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 Au- gust 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 Ze- laya’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 proceed- ing 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 cancella- tion-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 el- igible. The immigration judge denied his request for administra- tive closure. Zelaya appealed to the Board of Immigration Ap- peals, and on January 23, 2020, the Board dismissed Zelaya’s appeal and ordered voluntary deportation. The Board con- cluded that administrative closure was not warranted. The Board cited the Attorney General’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 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 ad- ministrative closure for abuse of discretion. Vahora, 626 F.3d at 919 (when reviewing a decision to deny administrative clo- sure, “[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 Vic- tor v. Holder, 616 F.3d 705, 708 (7th Cir. 2010). II. Administrative Closure and “Repapering” Before 1996, a person in deportation proceedings was eli- gible 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 Respon- sibility Act of 1996 (IIRIRA) and the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA) tight- ened 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 pro- ceedings administratively to allow for repapering into re- moval 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 can- cellation 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 con- tinuous period of not less than ten years preceding the appli- cation; (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 clo- sure. 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 pro- cedures, including those that govern exercises of an agency’s discretion. Zelaya cites several internal memoranda on ad- ministrative 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 proceed- ings, but it fails on the merits in any event. The Accardi doc- trine generally does not apply to an agency’s internal memo- randa, at least those that are neither designed to protect indi- vidual 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 promul- gated 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 poli- cies 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 pol- icies”). 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 regula- tions); 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 regula- tions); 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 dis- cretion by making an error of law in his case, by following the Attorney General’s directive in Castro-Tum and failing to ap- ply 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 Ap- peals are “not precluded from administratively closing cases when appropriate.” 973 F.3d at 667. Explaining this argument requires a bit of history on ad- ministrative closure of deportation and removal proceedings. While the subject is arcane, it can have enormous practical im- portance 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 re- moval 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 clo- sure 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 administra- tive closure is sought; (2) the basis for any opposition to ad- ministrative 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 antici- pated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated de- lay; 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, teach- ing that “the primary consideration for an Immigration Judge in determining whether to administratively close or recalen- dar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to pro- ceed 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 estab- lished in the Board’s precedential decisions. In 2018, however, the Attorney General’s Castro-Tum directive said that immi- gration 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 sus- pend 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 ad- ministratively. The Board in Zelaya’s case understandably cited the Attor- ney General’s new directive and then affirmed the immigra- tion 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 im- migration regulations plainly grant immigration judges broad authority and discretion to take “any action … that is appropriate and necessary for the disposition of [the cases be- fore 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 de- ciding 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 immigra- tion 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 fac- tors 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.