Zuniga Romero v. Barr, No. 18-1850 (4th Cir. 2019)Annotate this Case
The Fourth Circuit granted a petition for review of the BIA's dismissal of petitioner's appeal in light of Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018). In Castro-Tum, the Attorney General concluded that IJs and the BIA do not have the general authority to administratively close cases.
The court held that 8 C.F.R. 1003.10(b) and 1003.1(d)(1)(ii) unambiguously confer upon IJs and the BIA the general authority to administratively close cases. The court held that Castro-Tum was not entitled to Auer deference and, in the absence of such deference, the court applied Skidmore deference. In this case, the court explained that a court reviewing Castro-Tum for Skidmore deference would not be persuaded to adopt the agency's own interpretation of its regulation for substantially the same reasons it was not entitled to Auer deference: because it represents a stark departure, without notice, from long-used practice and thereby cannot be deemed consistent with earlier and later pronouncements. Therefore, the BIA's decision should be vacated and and remanded for further proceedings.