`
`
`
`In the
`United States Court of Appeals
`For the Seventh Circuit
`____________________
`
`No. 19-1999
`YEISON MEZA MORALES,
`
`Petitioner,
`
`v.
`
`WILLIAM P. BARR, Attorney General of the United States,
`Respondent.
`
`____________________
`
`Petition for Review of an Order of the
`Board of Immigration Appeals.
`No. A216-222-551
`____________________
`
`ARGUED APRIL 7, 2020 — DECIDED JUNE 26, 2020
`
`AMENDED SEPTEMBER 3, 2020
`____________________
`
`Before ROVNER, HAMILTON, and BARRETT, Circuit Judges.
`BARRETT, Circuit Judge. Yeison Meza Morales is a native
`and citizen of Mexico who entered the United States without
`inspection as a child. As an adult, Meza Morales petitioned
`for U nonimmigrant status, a special visa for victims of certain
`crimes. While his petition was pending, he was charged as re-
`
`

`

`2
`
`No. 19-1999
`
`movable based on two grounds of inadmissibility. Meza Mo-
`rales cited his pending U visa petition as a defense to his re-
`moval. The immigration judge agreed to waive both grounds
`of inadmissibility to allow him to pursue the U visa petition,
`but later ordered Meza Morales removed as charged on those
`same grounds.
`Meza Morales petitioned us for review of the removal or-
`der. He contends that the immigration judge’s initial waiver
`of both grounds of inadmissibility precluded their use as
`grounds for an order of removal. We disagree; Meza Mo-
`rales’s position would effectively turn the inadmissibility
`waiver into a substitute for the U visa itself. We nevertheless
`grant his petition for review on two other bases. Meza Mo-
`rales had asked the immigration judge to continue or admin-
`istratively close his case instead of ordering removal. The im-
`migration judge entered the removal order based on the con-
`clusion that those alternative procedures were inappropriate,
`and the Board affirmed on the same basis. But those alterna-
`tives were wrongly rejected. We grant the petition for review
`and remand the case so that the Board can reconsider.
`I.
`A noncitizen who becomes a victim of certain crimes while
`in the United States may petition for U nonimmigrant sta-
`tus—more commonly known as a U visa. 8 U.S.C.
`§ 1101(a)(15)(U). Congress created the visa to encourage
`crime victims to report crimes and assist law enforcement
`with investigation and prosecution. A U visa generally enti-
`tles an eligible noncitizen to lawfully remain in the United
`States and to seek work authorization. Id. § 1184(p)(6).
`
`

`

`No. 19-1999
`
`3
`
`The decision whether to grant a U visa petition is commit-
`ted by statute to the Secretary of Homeland Security, who ex-
`ercises this authority through U.S. Customs & Immigration
`Services (USCIS). See 8 C.F.R. § 214.14. To qualify for a U visa,
`a noncitizen must satisfy four substantive criteria: (1) he must
`have suffered “substantial physical or mental abuse” as the
`result of one of the crimes listed in the U visa provision; (2) he
`must possess credible and reliable knowledge of the details of
`the crime; (3) he must help or be likely to be helpful in the
`investigation or prosecution of the crime; and (4) the crime
`must have taken place in the United States. Id. § 214.14(b).
`In addition to those specific requirements, a noncitizen
`seeking a U visa must be “admissible” to the United States—
`in other words, eligible for a visa and lawful entry into the
`United States. 8 U.S.C. § 1182(a). There are several reasons
`why a noncitizen may be “inadmissible” and therefore ineli-
`gible for a visa. Among them are convictions for certain
`crimes and being present in the United States without having
`been inspected and authorized by an immigration official. See
`id. §§ 1101(a)(13)(A), 1182(a)(6)(A)(i).
`But inadmissibility is not a complete obstacle to acquiring
`a U visa; a noncitizen can apply to have her inadmissibility
`waived for the purpose of petitioning for U nonimmigrant
`status. In this circuit, there are two ways for a U visa petitioner
`to secure a waiver of inadmissibility. The first is by applica-
`tion to USCIS. Congress provided that the Secretary of Home-
`land Security can waive almost any ground of inadmissibility
`for a noncitizen who is applying for a U visa. 8 U.S.C.
`§ 1182(d)(14). USCIS implements this U visa inadmissibility
`waiver program on behalf of the Secretary, granting a waiver
`application if it determines that it is “in the public or national
`
`

`

`4
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`No. 19-1999
`
`interest” to do so. 8 C.F.R. § 212.17(b)(1). Because USCIS is
`also the office that decides whether to grant or deny U visas,
`a noncitizen pursuing this route may seek a waiver and a U
`visa at the same time. Id. § 214.14(c)(2)(iv).
`U visa petitioners in this circuit have an additional option
`for obtaining a waiver of inadmissibility. Congress gave the
`Attorney General the authority to waive most grounds of in-
`admissibility listed in § 1182(a) for certain noncitizens seeking
`admission. 8 U.S.C. § 1182(d)(3)(A). In L.D.G. v. Holder, we
`held that the Attorney General’s general inadmissibility
`waiver authority extends to U visa petitioners, notwithstand-
`ing the narrower provision allowing the Secretary of Home-
`land Security to waive inadmissibility specifically for U visa
`applicants. 744 F.3d 1022, 1030 (7th Cir. 2014). Thus, U visa
`petitioners can seek a waiver of inadmissibility from the At-
`torney General as well as from USCIS.1 And as delegates of
`the Attorney General, immigration judges have the power to
`grant waivers of inadmissibility—for example, during re-
`moval proceedings when noncitizens invoke their forthcom-
`ing U visa petition as a defense to removal. Baez-Sanchez v.
`Sessions, 872 F.3d 854, 856 (7th Cir. 2017). This alternative
`waiver procedure can create coordination problems because
`
`1 There is a circuit split on this issue. The Eleventh Circuit has fol-
`lowed us in holding that the Attorney General can grant a waiver of inad-
`missibility. Meridor v. U.S. Att’y Gen., 891 F.3d 1302 (11th Cir. 2018). The
`Third and Ninth Circuits, by contrast, have held that U visa petitioners
`can pursue a waiver of inadmissibility only from USCIS. Sunday v. Att’y
`Gen. of the U.S., 832 F.3d 211 (3d Cir. 2016); Man v. Barr, 940 F.3d 1354 (9th
`Cir. 2019). At oral argument in this case, the government expressed frus-
`tration with the inconsistency. But the government has not asked us to
`overrule L.D.G., which we have recently reaffirmed. Baez-Sanchez v. Barr,
`947 F.3d 1033 (7th Cir. 2020).
`
`

`

`No. 19-1999
`
`5
`
`two different arms of the executive branch grant the waiver
`and the visa. These coordination problems are on full display
`in this case.
`But before we get to the procedural posture of Meza Mo-
`rales’s case, another feature of the U visa scheme bears men-
`tion: the waiting list. By statute, USCIS may issue no more
`than 10,000 U visas per calendar year. 8 U.S.C.
`§ 1184(p)(2)(A). Many more than 10,000 applicants meet the
`criteria for U status each year, see L.D.G., 744 F.3d at 1024, so
`USCIS places on a waiting list all eligible U visa petitioners
`who would be granted a visa if not for the statutory cap. 8
`C.F.R. § 214.14(d)(2). It grants U visas to petitioners on the
`waiting list in chronological order. Id. In the meantime, peti-
`tioners on the U visa waiting list are granted deferred action—
`a form of prosecutorial discretion that allows a noncitizen to
`lawfully remain in the United States for a fixed period of time
`but does not provide legal status. Id. It is the policy of Immi-
`gration and Customs Enforcement (ICE), the office within the
`Department of Homeland Security (DHS) responsible for im-
`migration enforcement, not to deport a U visa petitioner who
`has been placed on the waitlist and granted deferred action.
`Revision of Stay of Removal Request Reviews for U Visa Petitioners,
`U.S. IMMIGR. & CUSTOMS ENFORCEMENT (Aug. 2, 2019),
`https://www.ice.gov/factsheets/revision-stay-removal-re-
`quest-reviews-u-visa-petitioners [hereinafter ICE Fact Sheet].
`With the U visa scheme laid out, we turn to the present
`case. Meza Morales is a native and citizen of Mexico. As a
`child, he entered the United States without inspection in De-
`cember 2002, and he has lived in the United States ever since.
`In October 2013, Meza Morales was walking home through
`his neighborhood in Indianapolis when he encountered a
`
`

`

`6
`
`No. 19-1999
`
`group of men arguing. He ran from them, but one of the men
`shot him in the ankle while he was running. Meza Morales
`recovered from the shooting and cooperated in the police in-
`vestigation that followed.
`As a shooting victim, Meza Morales applied for a U visa
`in August 2017. But before USCIS acted on his U visa petition,
`ICE initiated removal proceedings against him. In early 2018,
`DHS charged Meza Morales as removable under 8 U.S.C.
`§ 1182(a)(6)(A)(i) as a noncitizen present in the United States
`without
`being
`admitted
`and
`under
`8 U.S.C.
`§ 1182(a)(2)(A)(i)(II) for a 2014 conviction for possession of
`marijuana. The immigration judge deemed him removable
`under both charges. Meza Morales, appearing pro se, admit-
`ted both charges but explained that he was a crime victim and
`had already applied for a U visa. The immigration judge
`agreed to continue the removal proceedings for thirty days to
`allow USCIS to adjudicate the pending visa petition. The im-
`migration judge also granted a waiver of inadmissibility for
`purposes of his U visa petition under 8 U.S.C. § 1182(d)(3)(A),
`as permitted by L.D.G. Thirty days later, USCIS still had not
`made a decision on Meza Morales’s U visa petition. In his next
`appearance, Meza Morales asked the immigration judge ei-
`ther to continue the case further or to administratively close
`it—two procedural devices that allow an immigration judge
`to temporarily set aside a pending case. The immigration
`judge rejected both options and instead entered an order of
`removal.
`Meza Morales appealed to the Board of Immigration Ap-
`peals, arguing that the removal order was inconsistent with
`the waiver and that the immigration judge should have en-
`
`

`

`No. 19-1999
`
`7
`
`tered a continuance or administrative closure. The Board af-
`firmed the removal order, and soon ICE began the process of
`removing Meza Morales. He applied to our court for an emer-
`gency stay of removal, which we granted. Then, collateral to
`the removal proceedings, USCIS adjudicated his U visa peti-
`tion. The office deemed him eligible for a U visa but placed
`him on the waiting list due to the statutory cap. It then
`granted Meza Morales deferred action, and accordingly, re-
`leased him from detention. The removal order remains on the
`books, though, and Meza Morales continues to petition our
`court for review of it.
`
`II.
`Before we can assess the merits of Meza Morales’s peti-
`tion, we must assure ourselves of our jurisdiction. By statute,
`we have jurisdiction to address questions of law raised in a
`petition for review from a final removal order. 8 U.S.C.
`§ 1252(a)(2)(D). The government contends that this appeal be-
`came moot, though, when USCIS finally adjudicated Meza
`Morales’s U visa petition and placed him on the waiting list.
`Federal court jurisdiction is limited to the resolution of
`“Cases” and “Controversies.” U.S. CONST. art. III, § 2, cl. 1.
`“To qualify as a case fit for federal-court adjudication, ‘an ac-
`tual controversy must be extant at all stages of review, not
`merely at the time the complaint is filed.’” Arizonans for Offi-
`cial English v. Arizona, 520 U.S. 43, 67 (1997) (citation omitted).
`If developments in a case make it impossible for a court to
`grant “any effectual relief whatever” to the prevailing party,
`then we must dismiss the appeal as moot. Mills v. Green, 159
`U.S. 651, 653 (1895). According to the government, it is no
`longer possible for our court to grant Meza Morales any effec-
`tual relief.
`
`

`

`8
`
`No. 19-1999
`
`The government misunderstands both the relief that Meza
`Morales requests and the effect of his U visa adjudication. The
`crux of Meza Morales’s appeal is that the immigration judge
`was wrong to order him removed instead of granting a con-
`tinuance or administrative closure. The relief that he has re-
`quested all along is vacatur of the removal order. It is still pos-
`sible for us to grant that relief because the removal order re-
`mains in place. By regulation, favorable adjudication of a U
`visa petition does not automatically cancel a removal order
`entered by an immigration judge. 8 C.F.R. § 214.14(c)(5)(i).
`Meza Morales may seek to cancel the removal order by filing
`a motion to reopen and terminate removal proceedings, but
`cancelation is not guaranteed. Id. (ICE retains the discretion
`not to join a motion to reopen, but the Attorney General un-
`derstandably cannot promise that ICE would join a motion to
`reopen if Meza Morales filed one. Id.) Since the removal order
`remains in effect, it is still possible for us to grant Meza Mo-
`rales the relief that he requests.
`True, Meza Morales may not in fact be removed anytime
`soon because it is ICE policy not to remove a noncitizen who
`is placed on the U visa waiting list and granted deferred ac-
`tion. ICE Fact Sheet. But protection from removal is not guar-
`anteed. USCIS retains discretion to remove him from the wait-
`ing
`list and withdraw his deferred action. 8 C.F.R.
`§ 214.14(d)(3). Meza Morales’s controversy therefore remains
`live, and we proceed to the merits.
`III.
`Meza Morales raises three challenges to the Board’s deci-
`sion affirming the order of removal. First, he contends that it
`is logically inconsistent for an immigration judge to enter a
`removal order on the same grounds of inadmissibility that the
`
`

`

`No. 19-1999
`
`9
`
`immigration judge has already waived. Second, he argues
`that the Board misapplied relevant precedents in considering
`whether another continuance was warranted. And third, he
`asserts that the Board was wrong to hold that immigration
`judges lack the power to administratively close cases. We ad-
`dress each argument in turn.
`
`A.
`Meza Morales first argues that it is legal error to enter a
`removal order after granting a waiver of inadmissibility un-
`der 8 U.S.C. § 1182(d)(3)(A). He asserts that the waiver nulli-
`fied both grounds of inadmissibility with which he was
`charged, leaving no basis on which he can be removed. The
`government responds that the waiver is no more than a pro-
`cedural step in the collateral U visa adjudication and cannot
`block removal. Meza Morales remains removable, the govern-
`ment contends, because he still lacks a lawful basis for resid-
`ing in this country. Our task is to determine which under-
`standing of the waiver’s effect is correct.
`Meza Morales’s position has superficial appeal. It leans on
`the intuition that waivers of inadmissibility generally “relieve
`applicants of the effects of past conduct.” L.D.G., 744 F.3d at
`1028. If Meza Morales has been relieved of the effects of his
`past conduct, then one might think it contradictory that he can
`be removed on the basis of that same conduct. But in Meza
`Morales’s case, there is no contradiction between the two. A
`waiver of inadmissibility granted in a removal proceeding
`protects a noncitizen from removal only if the noncitizen oth-
`erwise has lawful immigration status—for example, if she has
`a visa or the status of lawful permanent resident. In that
`event, the waiver clears the only obstacle to the noncitizen’s
`
`

`

`10
`
`No. 19-1999
`
`lawful presence. Meza Morales, however, has no lawful im-
`migration status; he is still waiting on a U visa. For him, the
`§ 1182(d)(3)(A) waiver is a necessary but insufficient step to-
`ward lawful presence.
`This makes his situation relatively unique. As we have al-
`ready explained, our circuit allows immigration judges to
`grant waivers of inadmissibility under § 1182(d)(3)(A) to U
`visa petitioners in removal proceedings. See L.D.G., 744 F.3d
`1022. There is essentially no other situation in which an immi-
`gration judge would grant a § 1182(d)(3)(A) waiver to a
`noncitizen who needs—but does not yet have—a temporary
`visa. See 8 U.S.C. § 1182(d)(3)(A)(ii) (covering noncitizens
`who are “in possession of appropriate documents or [are]
`granted a waiver thereof and [are] seeking admission”). In the
`usual course, an immigration judge reviews a § 1182(d)(3)(A)
`waiver application after the noncitizen has initially applied to
`DHS for a waiver at a port of entry, entered the United States
`pursuant to a grant of deferred inspection, and been placed in
`removal proceedings after DHS denies the waiver. See Matter
`of Khan, 26 I. & N. Dec. 797, 802 (B.I.A. 2016); see also Sunday,
`832 F.3d at 217. Then, once placed in removal proceedings, the
`noncitizen is permitted to renew her waiver application be-
`fore the immigration judge. 8 C.F.R. § 235.2(d); id § 1235.2(d).
`A noncitizen who secures a waiver from the immigration
`judge surmounts the only impediment to lawful temporary
`admission, because the only noncitizens who can apply for a
`§ 1182(d)(3)(A) waiver at a port of entry are those who are ex-
`empt from the visa requirement (Canadians, for example) or
`those who already hold nonimmigrant visas but who have an
`inadmissibility problem that invalidates those visas. 8 U.S.C.
`§ 1182(d)(3)(A)(ii); see also 8 C.F.R. § 212.4(b); id. § 1212.4(b).
`So if the immigration judge grants the waiver, the noncitizen
`
`

`

`No. 19-1999
`
`11
`
`has everything required for lawful presence, because she ei-
`ther already has a visa or does not need one.
`The waiver works the same way in the cases that Meza
`Morales invokes to support his position. He points out that in
`the context of other types of inadmissibility waivers, the
`Board has understood the grant of a waiver to foreclose re-
`moval. See Matter of Balderas, 20 I. & N. Dec. 389 (B.I.A. 1991);
`Matter of Mascorro-Perales, 12 I. & N. Dec. 228 (B.I.A. 1967);
`Matter of Edwards, 10 I. & N. Dec. 506 (B.I.A. 1963). Each of
`these cases involved a lawful permanent resident threatened
`with removal due to a conviction for crimes involving moral
`turpitude; in each, the Board terminated the removal proceed-
`ings after granting a waiver of inadmissibility, reasoning that
`“a waiver, once granted, should remain valid indefinitely for
`all proceedings, including both deportations and exclusion
`proceedings.” Balderas, 20 I. & N. Dec. at 393; see id. at 390 n.1
`(explaining that a lawful permanent resident may pursue cer-
`tain waivers of inadmissibility at removal if the grounds of
`removal are also grounds of inadmissibility). But in each of
`these cases, the waiver foreclosed removal because it pro-
`tected the noncitizen’s status as a lawful permanent resident.
`The waiver was not itself the basis for lawful presence.
`Meza Morales is differently situated because he lacks law-
`ful immigration status. Being “relieved of the effects of [his]
`past conduct” renders Meza Morales eligible for a visa. But un-
`til he secures one, he still lacks a legal basis for lawful pres-
`ence in the United States. Rather than protecting his status,
`the waiver is a step on the road to obtaining it.
`Ignoring that distinction, Meza Morales urges us to inter-
`pret a § 1182(d)(3)(A) waiver as effectively making him unre-
`
`

`

`12
`
`No. 19-1999
`
`movable. But his interpretation is at odds with the U visa pro-
`vision, which makes clear that it is the visa, not the waiver,
`that confers status on a noncitizen. 8 U.S.C. § 1101(a)(15)(U).
`Only the Secretary of Homeland Security, through his dele-
`gates, may grant a U visa, through the procedures laid out by
`statute. Id. The statute does not allow for the waiver to sup-
`plant the visa, so a waiver of inadmissibility alone cannot
`foreclose removal.
`This understanding is consistent with L.D.G. In that case,
`we explained that a waiver of inadmissibility allows a noncit-
`izen “to gain eligibility for a U visa.”2 744 F.3d at 1028. We
`characterized the U visa, not the waiver, as the procedure that
`allows noncitizens “to remain in the United States as lawful
`temporary residents despite being otherwise subject to re-
`moval.” Id. at 1024. Allowing the waiver to preclude removal
`is inconsistent with both our case law and the statutory re-
`gime. We therefore reject Meza Morales’s first challenge to the
`removal order.
`
`B.
`The case does not end here. Recall that Meza Morales
`asked the immigration judge to continue or administratively
`
`
`2 In this respect, a waiver of inadmissibility is not analogous to other
`forms of relief to which Meza Morales attempts to analogize, like asylum.
`Asylum can qualify a petitioner for the withholding of removal, see Matter
`of D-V-, 21 I. & N. Dec. 77, 80 (B.I.A. 1993), but in the case of a U visa, a
`waiver is only the first procedural step to relief.
`
`
`

`

`No. 19-1999
`
`13
`
`close his case instead of ordering removal. Meza Morales ar-
`gues that both procedural options were wrongly rejected.3
`We’ll start with the continuance. When it declined to con-
`tinue Meza Morales’s case, the Board cited to what was then
`its leading precedential opinion on U visa continuances, Mat-
`ter of Sanchez Sosa, 25 I. & N. Dec. 807 (B.I.A. 2012).4 Meza Mo-
`rales argues that the Board failed to properly apply the factors
`laid out in that opinion.
`The government initially responded that the Board had
`been correct to deny the continuance. But after the briefs in
`this case were filed, the government asked us to remand this
`
`
`3 Because Meza Morales continues to pursue a continuance or admin-
`istrative closure, we address his arguments. But we note that each of these
`procedural options is a double-edged sword for Meza Morales. While con-
`tinuing or closing the case would stave off entry of a final order of re-
`moval, both would also render the waiver of inadmissibility nonfinal. See
`Matter of W-Y-U-, 27 I. & N. Dec. 17, 17 (B.I.A. 2017) (explaining that nei-
`ther a continuance nor administrative closure constitutes a final order); see
`also Vahora v. Holder, 626 F.3d 907, 914–15 (7th Cir. 2010). A noncitizen on
`the U visa waiting list can be granted a U visa only if he still remains ad-
`missible. 8 C.F.R. § 214.14(d)(2). A nonfinal waiver of admissibility might
`jeopardize Meza Morales’s pending U visa application—a risk that he may
`not want to take while he enjoys deferred action. Although we note the
`potential pitfalls of a nonfinal waiver of inadmissibility, we express no
`view on whether the government might be precluded from contesting the
`waiver on the basis of forfeiture, waiver, estoppel, or some other ground.
`4 Meza Morales originally asked that his case be continued until
`USCIS could adjudicate his U visa petition. USCIS has since favorably ad-
`judicated the U visa petition, but this claim is still live because on remand
`the immigration judge could continue the case until Meza Morales secures
`the visa. Cf. Qureshi v. Gonzales, 442 F.3d 985, 988 (7th Cir. 2006) (deeming
`a case to be mooted in the converse scenario, when the collateral petition
`was adjudicated unfavorably and no basis for a continuance remained).
`
`

`

`14
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`No. 19-1999
`
`claim to the Board to allow it to consider two relevant new
`opinions. After the Board rendered its decision in this case, it
`issued a precedential opinion in Matter of Mayen, 27
`I. & N. Dec. 755 (B.I.A. 2020), clarifying the application of the
`factors in Sanchez Sosa. A few months later, our court issued a
`decision in Guerra Rocha v. Barr, 951 F.3d 848, 853 (7th Cir.
`2020), in which we emphasized that prima facie eligibility for
`a U visa was the most important factor to consider in deciding
`whether to grant a continuance. The government asks that we
`grant Meza Morales’s petition for review as to the continu-
`ance to allow the Board to apply those new precedents for the
`first time. Meza Morales does not object. We agree that the
`Board should be given the opportunity to apply Mayen and
`Guerra Rocha in the first instance. We grant the petition for re-
`view and remand to the Board to reconsider whether another
`continuance was in fact an inappropriate alternative to a re-
`moval order.
`
`C.
`Meza Morales has a final objection to the Board’s decision.
`In his removal proceedings, he had alternatively urged the
`immigration judge to administratively close his case rather
`than order removal. Administrative closure is a procedural
`device that temporarily takes a removal case off of an immi-
`gration judge’s calendar, preventing it from moving forward.
`Vahora v. Holder, 626 F.3d 907, 914 (7th Cir. 2010). Until re-
`cently, immigration judges used the procedural tool of ad-
`ministrative closure for a variety of reasons, including to per-
`mit a noncitizen to pursue alternative relief—such as a U
`visa—from USCIS. The use of administrative closure was
`blessed and clarified in Matter of Avetisyan, 25 I. & N. Dec. 688
`(B.I.A. 2012), and Matter of W-Y-U-, 27 I. & N. Dec. 17 (B.I.A.
`
`

`

`No. 19-1999
`
`15
`
`2017). But in Matter of Castro-Tum, the Attorney General em-
`ployed administrative adjudication to overrule Avetisyan and
`hold that immigration judges and the Board lack the authority
`to administratively close cases “except where a previous reg-
`ulation or settlement agreement has expressly conferred it.”
`27 I. & N. Dec. 271, 283 (Att’y Gen. 2018). The immigration
`judge in this case held that he was bound by Castro-Tum to
`reject Meza Morales’s request for administrative closure, and
`the Board affirmed that conclusion.
`We typically review the denial of administrative closure
`for abuse of discretion. Vahora, 626 F.3d at 919. Here, though,
`Meza Morales challenges the legal conclusion that adminis-
`trative closure is disallowed, not the discretionary decision to
`deny closure. Abuse of discretion is therefore not the appro-
`priate standard of review in this case. Although the Board’s
`decision in Meza Morales’s case was unpublished and non-
`precedential, the Board and the immigration judge based
`their rulings on Castro-Tum, a precedential opinion authored
`by the Attorney General. It is therefore the legal interpretation
`in Castro-Tum that we review for error. See Arobelidze v. Holder,
`653 F.3d 513, 519 (7th Cir. 2011).
`Castro-Tum holds that no statute or regulation gives immi-
`gration judges the general power to administratively close
`cases. Meza Morales argues that Castro-Tum is an erroneous
`interpretation of the immigration regulations, which he con-
`tends do grant that power to immigration judges. The govern-
`ment responds that Castro-Tum correctly interprets the clear
`text of the regulations; in the alternative, it argues that Castro-
`Tum is a reasonable interpretation of the regulatory language
`and is therefore entitled to deference under Auer v. Robbins,
`
`

`

`16
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`No. 19-1999
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`519 U.S. 452 (1997).5 Auer only applies, however, to agency
`interpretations of genuinely ambiguous regulations—and the
`Supreme Court has recently warned us not to leap too quickly
`to the conclusion that a rule is ambiguous. Kisor v. Wilkie, 139
`S. Ct. 2400, 2415 (2019) (“A court cannot wave the ambiguity
`flag just because it found the regulation impenetrable on first
`read.”). We can defer only if careful application of the “tradi-
`tional tools of construction” yields no definitive answer. Id.
`With the Court’s admonition in mind, we turn to the regula-
`tory scheme that Castro-Tum interprets.
`As Castro-Tum points out, no statute or regulation explic-
`itly confers upon immigration judges a general power of ad-
`ministrative closure. The more difficult question is whether
`any of the immigration regulations that grant immigration
`judges their general powers is broad enough to implicitly en-
`compass that authority. Castro-Tum analyzes and dismisses a
`few regulatory provisions that could arguably encompass a
`general administrative-closure power. The most salient is 8
`C.F.R. § 1003.10(b), which explains, “In deciding the individ-
`ual cases before them, … immigration judges shall exercise
`their independent judgment and discretion and may take any
`action consistent with their authorities under the Act and reg-
`ulations that is appropriate and necessary for the disposition
`
`5 The government also invokes Chevron U.S.A. Inc. v. Natural Resources
`Defense Council, Inc., 467 U.S. 837 (1984), the deference regime applicable
`to agency interpretations of statutes. But Meza Morales does not argue
`that the Attorney General exceeded his statutory authority, which broadly
`covers the administration of immigration laws. 8 U.S.C. § 1103(a)(1). In-
`stead, Meza Morales contends that Castro-Tum misinterprets the Attorney
`General’s own regulations. As such, Auer deference, which applies to
`agency interpretations of their own regulations, is the potentially relevant
`deference doctrine.
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`No. 19-1999
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`17
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`of such cases” (emphasis added). The provision goes on to
`provide a list—which does not purport to be exhaustive—of
`some of an immigration judge’s powers, such as the power to
`receive evidence. 8 C.F.R. § 1003.10(b). It concludes that im-
`migration judges shall resolve their cases in a “timely and im-
`partial manner.” Id.
`Castro-Tum parses 8 C.F.R. § 1003.10(b) and concludes that
`it does not grant immigration judges the power to adminis-
`tratively close cases. It contends that closure cannot be “ap-
`propriate and necessary” to the “disposition” of cases since
`closure is a suspension that delays the final resolution of a
`case. 27 I. & N. Dec. at 285. And it reasons that a general power
`to administratively close cases would conflict with the regu-
`lation’s requirement that immigration judges “timely” re-
`solve their cases.
`We disagree. On its face, 8 C.F.R. § 1003.10(b) grants im-
`migration judges broad authority. It permits the discretionary
`exercise of “any action” that is “appropriate and necessary for
`the disposition of … cases.” Administrative closure is plainly
`an “action.” And “appropriate and necessary” is a capacious
`phrase. See Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015). Un-
`surprisingly, then, an immigration judge might sometimes
`conclude, in exercising the discretion granted by 8 C.F.R.
`§ 1003.10, that it is appropriate and necessary to dispose of a
`case through administrative closure. For example, in cases in
`which two coordinate offices in the executive branch are sim-
`ultaneously adjudicating collateral applications, closing one
`proceeding might help advance a case toward resolution. See
`Romero v. Barr, 937 F.3d 282, 293 (4th Cir. 2019) (characterizing
`the facts underlying Avetisyan as presenting such a situation);
`see also Matter of Hashmi, 24 I. & N. Dec. 785, 791 n.4 (B.I.A.
`
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`No. 19-1999
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`2009) (encouraging administrative closure in appropriate cir-
`cumstances). Moreover, cases must be disposed of fairly, and
`granting a noncitizen the opportunity to pursue relief to
`which she is entitled may be appropriate and necessary for a
`fair disposition. See Vahora, 626 F.3d at 918.
`Further, the regulation’s requirement that cases be re-
`solved in “timely” fashion does not foreclose administrative
`closure. For one thing, “timeliness” is not a hard and fast
`deadline; some cases are more complex and simply take
`longer to resolve. Thus, not all mechanisms that lengthen the
`proceedings of a case prevent “timely” resolution. That is pre-
`sumably why nobody appears to think that continuances con-
`flict with the regulation’s timeliness requirement. See Memo-
`randum 15-01 from Brian M. O’Leary, Chief Immigration
`Judge, to All Immigration Judges 3 (Apr. 6, 2015). And while
`Castro-Tum tries to draw reinforcement from the general pol-
`icy of expeditiousness underlying immigration law, that pol-
`icy doesn’t justify departure from the plain text of the rule.
`Immigration laws and regulations, like all laws and regula-
`tions, are the product of compromise over competing policy
`goals. Expeditiousness may be one such goal, but it is not the
`only goal. In our view, the text supports Meza Morales’s read-
`ing.
`Castro-Tum insists, though, that interpreting 8 C.F.R.
`§ 1003.10(b) to mean what it says would render other regula-
`tory provisions superfluous. For example, a separate provi-
`sion of the regulations explicitly grants immigration judges
`the power to continue cases. 8 C.F.R. § 1003.29. One might
`think that the existence of a specific continuance provision
`suggests that the general grant of authority in 8 C.F.R.
`§ 1003.10(b) does not implicitly encompass the power to grant
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`continuances. Castro-Tum, 27 I. & N. Dec. at 289 (“[I]f immi-
`gration judges already possessed such authority, there would
`have been little point in expressly empowering immigration
`judges to grant conti