Garcia-DeLeon v. Garland, No. 20-3957 (6th Cir. 2021)
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Garcia, a citizen of Mexico, entered the U.S. without inspection in 2000 and was placed in removal proceedings in 2011. Garcia sought Cancellation of Removal or voluntary departure in the alternative. In 2018, Garcia married a U.S. citizen, who filed an I-130 Petition for Alien Relative. An IJ denied Garcia’s request for a continuance pending adjudication of his I-130 petition, noting that even if USCIS approved his I-130 petition, Garcia would have to leave and be processed at the American consulate in Mexico because he had not been “admitted or paroled following inspection.” The IJ found Garcia ineligible for Cancellation of Removal but granted voluntary departure.
While his BIA appeal was pending, USCIS approved Garcia's I-130 petition, which required Garcia, to travel to a U.S. consulate but by leaving the U.S., noncitizens who have been unlawfully present for more than one year become inadmissible for 10 years. The Attorney General may waive this bar for immigrant-spouses of U.S. citizens. USCIS could take over a year to process the waiver, during which a noncitizen remains abroad. USCIS amended its regulations in 2013 to permit applicants to apply for a provisional unlawful presence waiver before departing the U.S.; this workaround did not extend to noncitizens in removal proceedings, unless those proceedings are administratively closed. In 2018, then-Attorney General Sessions issued the “Castro-Tum” decision, holding that IJs and the BIA did not have general authority to grant administrative closure. The BIA, citing Castro-Tum, denied Garcia’s request for administrative closure and upheld the denial of Cancellation of Removal.
The Sixth Circuit vacated. IJs and the BIA have the authority for administrative closure to permit noncitizens to seek provisional unlawful presence waivers. Administrative closure is “appropriate and necessary” for the disposition of Garcia’scase.
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