RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0367p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ ROBERTO ISAAC HERNANDEZ-SERRANO, │ Petitioner, │ > No. 20-3175 │ v. │ │ WILLIAM P. BARR, Attorney General, │ Respondent. │ ┘ 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. _________________ COUNSEL ARGUED: Benjamin R. Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Edward Wiggers, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin R. Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, Rachel Bonano, LAW OFFICE OF RACHEL BONANO, PLLC, Knoxville, Tennessee, for Petitioner. Remi da Rocha-Afodu, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. KETHLEDGE, J., delivered the opinion of the court in which GUY, J., joined. CLAY, J. (pp. 12–23), delivered a separate dissenting opinion. No. 20-3175 Hernandez-Serrano v. Barr Page 2 _________________ OPINION _________________ 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. I. Hernandez-Serrano entered the United States without inspection in September 2015, when he was 16 years old. He was promptly placed in removal proceedings before an immigration judge (IJ). A year later, a juvenile court in Tennessee made findings that rendered Hernandez-Serrano potentially eligible for “Special Immigrant Juvenile” status. See 8 U.S.C. § 1101(a)(27)(J). Hernandez-Serrano submitted to the United States Citizenship and Immigration Services (CIS) an application for that status, which, if granted, would allow Hernandez-Serrano to petition for status as a lawful permanent resident. See 8 U.S.C. § 1255(h). In June 2017, Hernandez-Serrano moved for administrative closure of his removal case until CIS made a decision as to his application for Special Immigrant Juvenile status. (Unexplained on this record is why he did not seek a simple continuance instead.) The IJ denied that motion on the No. 20-3175 Hernandez-Serrano v. Barr Page 3 apparent ground that, even if Hernandez-Serrano were granted that ...
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