On Petition for Review from the Board of Immigration Appeals;
No. A 208 449 630.
Argued: October 21, 2020
Decided and Filed: November 24, 2020
Before: GUY, CLAY, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. 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. Yet in more than 400,000 cases in which an
alien was charged with being subject to deportation or (after April 1, 1997) removal, immigration
judges or the Board of Immigration Appeals have invoked such a regulation to close cases
administratively—meaning the case was removed from the IJ’s docket without further
proceedings absent some persuasive reason to reopen it. As of October 2018, more than 350,000
of those cases had not been reopened. An adjudicatory default on that scale strikes directly at the
rule of law.
In May 2018 the Attorney General formally interpreted the regulations relevant here not
to provide “general authority” for administrative closure in immigration cases. Petitioner
Roberto Hernandez-Serrano now challenges that interpretation, arguing that the immigration
judge in his case should have had general authority to close it administratively. We reject that
argument and deny the petition.