Santos-Bautista v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 26, 2023
• Docket: 21-744
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 26 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALFREDO SANTOS-BAUTISTA, No. 21-744 Agency No. Petitioner, A201-945-296 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted July 17, 2023** San Francisco, California

Before: WARDLAW and M. SMITH, Circuit Judges, and RAYES, *** District Judge.

Alfredo Santos-Bautista (Santos) appeals from a Board of Immigration

Appeals (BIA) decision dismissing his appeal of an Immigration Judge’s (IJ’s)

denial of motions to continue and/or administratively close proceedings. As the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation. parties are familiar with the facts, we do not recount them here. We grant in

part and deny in part the petition for review, and remand to the BIA with

instructions to adjudicate Santos’s motion for administrative closure.

1. Santos was not required to exhaust his administrative closure claim.

We recognize an “exception[] to the exhaustion requirement” where a

noncitizen raises a “legal issue[] based on events that occur after briefing to the

BIA has been completed.” Alcaraz v. INS, 384 F.3d 1150, 1158 (9th Cir. 2004).

Briefing in Santos’s appeal concluded on July 14, 2021. Just one day later, the

Attorney General vacated a decision that stripped IJs and the BIA of authority

to administratively close cases, see Matter of Castro-Tum, 27 I. & N. Dec. 271,

272 (AG 2018), and restored the agency’s prior guidelines for adjudicating such

requests. See Matter of Cruz-Valdez, 28 I. & N. Dec. 326, 329 (AG 2021)

(vacating Castro-Tum).

Santos’s motion for administrative closure became viable only after the

Attorney General issued Cruz-Valdez. The government concedes that, had

Santos raised his administrative closure claim to the BIA, the agency would

have denied the motion, consistent with then-controlling BIA precedent. Santos

seeks a remedy based on a “legal issue that . . . could not be briefed on [his]

direct appeal to the BIA” due to a change in agency policy that occurred “after

the date when [Santos] w[as] required to submit [his] briefs to the BIA.”

Alcaraz, 384 F.3d at 1159. Accordingly, Santos was not statutorily required to

exhaust his claim. For the same reasons, we also reject the government’s

2 21-744 argument that prudential exhaustion requirements should be imposed in this

case. See id.

2. We are not persuaded that remand to the agency to reconsider Santos’s

motion for administrative closure would be futile. “Ordinarily, where both the

IJ and BIA erred by not independently reviewing [a petitioner’s] administrative

closure request, remand would be the appropriate remedy.” Gonzalez-Caraveo

v. Sessions, 882 F.3d 885, 893 (9th Cir. 2018). Neither the IJ nor BIA gave

reasons—verbal or written—for denying Santos’s motion. On appeal, the

government gestures at statements in the BIA’s decision that pertain to the

administrative-closure factors set forth in Matter of Avetisyan, 25 I. & N. Dec.

688 (BIA 2012) and which could support the agency’s denial of the motion.

But the government’s post-hoc rationalization in litigation is no substitute for

agency adjudication in the first instance. See generally Vermont Yankee

Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 549 (1978)

(stating well-established principle that judicial review of agency decision is

limited to the “contemporaneous explanation of the agency decision”).

We conclude that Santos was not required to exhaust his administrative

closure claim and that remand would not be futile. Accordingly, as the

government concedes in its briefing, remand “is required for the [BIA] to

consider Santos’s request for administrative closure in the first instance.”

3. The BIA did not abuse its discretion in denying Santos’s motion to

continue. In adjudicating Santos’s motion, the agency weighed factors set forth

3 21-744 in Matter of Sanchez Sosa, 25 I. & N. Dec. 807 (BIA 2012) and Matter of L-N-

Y-, 27 I. & N. Dec. 755 (BIA 2020). Santos argues that the agency erred by

failing to address “primary” factors—specifically, whether Santos is prima facie

eligible for a U-visa, and whether a grant of relief would “materially impact”

proceedings. L-N-Y-, 27 I. & N. Dec. at 757. But the BIA arguably addressed

such primary factors in its disposition, and clearly weighed secondary factors

that counsel against granting a continuance, including the Department of

Homeland Security’s position on the motion, the number of prior continuances

granted, and administrative efficiency concerns. As such, the BIA did not act

“arbitrarily, irrationally, or contrary to law” in denying Santos’s motion.

Hernandez-Velasquez v. Holder, 611 F.3d 1073, 1077 (9th Cir. 2010) (cleaned

up).

PETITION GRANTED and REMANDED in part and DENIED in part.

4 21-744