Castro‑Castro v. Bondi: Second Circuit Reaffirms Limits on Reopening and Administrative Closure to Pursue DHS Prosecutorial Discretion; DHS Enforcement Memos Are Not “New Evidence”

Castro‑Castro v. Bondi: Second Circuit Reaffirms Limits on Reopening and Administrative Closure to Pursue DHS Prosecutorial Discretion; DHS Enforcement Memos Are Not “New Evidence”

Court: U.S. Court of Appeals for the Second Circuit (Summary Order)
Date: August 27, 2025
Docket: No. 24‑179 (NAC)

Note: This is a Summary Order and therefore non‑precedential under Second Circuit Local Rule 32.1.1. It is, however, instructive for practitioners.

Introduction

This immigration case arises from a petition for review filed by Ines Nathaly Castro‑Castro and her minor child, citizens of Ecuador, challenging the Board of Immigration Appeals’ (BIA) December 26, 2023 denial of their motion to reopen. The petitioners sought reopening to either (i) pursue prosecutorial discretion (PD) with the Department of Homeland Security (DHS) or (ii) obtain administrative closure. They relied chiefly on DHS enforcement‑priority memoranda issued in 2021 and 2022.

The Second Circuit denied the petition, holding that the BIA did not abuse its discretion. The court concluded that the DHS memoranda were not “previously unavailable” evidence, that the BIA properly recognized it lacks jurisdiction to review DHS’s exercise of PD, and that administrative closure is not a vehicle to await PD decisions. The court also acknowledged, post‑Riley v. Bondi (2025), that the petition-for-review deadline in 8 U.S.C. § 1252(b)(1) is non‑jurisdictional, but limited its review to the timely‑challenged BIA decision because no excuse for lateness was argued.

Although non‑precedential, the order clarifies several recurring issues in immigration practice: what qualifies as “new” and “material” evidence for reopening; the limited role of the BIA and IJs in PD; the proper scope of administrative closure; and the continuing salience of exhaustion, abandonment, and futility doctrines.

Summary of the Judgment

  • Disposition: Petition for review denied. All stays vacated; all pending motions/applications denied.
  • Scope of review: Limited to the BIA’s December 26, 2023 denial of reopening. While the 30‑day petition‑for‑review deadline is now non‑jurisdictional under Riley v. Bondi (2025), petitioners did not argue any equitable excuse for the earlier BIA decision, so only the December 2023 order was before the court.
  • Reopening standard: Petitioners’ proffered “evidence”—the 2021 Mayorkas Memorandum and the 2022 Doyle Memorandum—predated the May 2022 merits hearing and the 2023 BIA decision. Thus, the evidence was not “previously unavailable” or “material” under 8 C.F.R. § 1003.2(c)(1).
  • Prosecutorial discretion: The BIA properly recognized it cannot review DHS’s discretionary PD decisions. Petitioners forfeited any challenge to this point by not briefing it.
  • Likelihood of favorable PD: Even if the BIA could consider the likelihood of DHS PD as part of its own discretionary reopening decision (see Sheng Gao Ni), the DHS memoranda identified as enforcement priorities noncitizens who unlawfully entered after November 1, 2020—categorizing petitioners as priorities, making a favorable PD outcome unlikely. Any remand would be futile (Gurung v. Barr).
  • Administrative closure: Not appropriate to “await” a PD decision by DHS (an opposing party), as administrative closure is meant for events outside the control of the parties or the court (Matter of Avetisyan; Matter of W‑Y‑U‑). Petitioners did not challenge this reasoning, abandoning it on appeal.
  • Exhaustion: Any argument to reopen for asylum reconsideration was unexhausted because the motion to reopen did not seek that relief or present new asylum evidence (Ud Din v. Garland).

Analysis

Precedents and Authorities Cited and Their Role

  • 8 C.F.R. § 1003.2(c)(1): Governs motions to reopen; requires new evidence that is material and previously unavailable. Central to the court’s rejection of petitioners’ reliance on DHS policy memoranda that predated their IJ hearing and the original BIA decision.
  • Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83 (2d Cir. 2001): Articulates abuse‑of‑discretion review—BIA decisions must be rational and reasoned, not arbitrary or conclusory. Frames the deferential standard applied here.
  • Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008): Confirms abuse‑of‑discretion standard for reopening denials. Cited for the standard of review.
  • Garcia v. Garland, 64 F.4th 62 (2d Cir. 2023): Affirms abuse‑of‑discretion review for administrative closure decisions and recognizes agency authority to administratively close cases (post‑Matter of Cruz‑Valdez). Guides the court’s framework for evaluating the closure request.
  • Kaur v. BIA, 413 F.3d 232 (2d Cir. 2005): Limits review to the timely‑challenged BIA decision. Applied to confine the court’s review to the December 2023 order.
  • Pillay v. INS, 45 F.3d 14 (2d Cir. 1995): Addresses summary denial of petitions as “frivolous.” The court sidestepped this by construing the government’s motion as its merits brief.
  • Debique v. Garland, 58 F.4th 676 (2d Cir. 2023): Issues not argued are abandoned. Used to deem forfeited any challenge to the BIA’s statement that it cannot review DHS PD decisions and its administrative‑closure rationale.
  • Ud Din v. Garland, 72 F.4th 411 (2d Cir. 2023): Reinforces mandatory issue exhaustion when the government raises it. Foreclosed new asylum‑reopening arguments not presented to the BIA.
  • Sheng Gao Ni v. BIA, 520 F.3d 125 (2d Cir. 2008): Even if the BIA cannot adjudicate certain relief, it should consider whether reopening is warranted to allow pursuit of relief from the proper agency (e.g., USCIS). The court recognized this principle but found reopening unwarranted because PD was unlikely under DHS’s own guidance.
  • Gurung v. Barr, 929 F.3d 56 (2d Cir. 2019): The “inevitable on remand” doctrine—affirmance despite possible legal error when the same outcome is inevitable. Applied to reject any remand given petitioners’ post‑Nov. 2020 unlawful entry and DHS priorities.
  • Matter of J‑A‑B‑ & I‑J‑V‑A‑, 27 I. & N. Dec. 168 (BIA 2017): The BIA and IJs cannot review DHS’s decision to commence or forgo removal proceedings—PD lies exclusively with DHS.
  • Matter of Avetisyan, 25 I. & N. Dec. 688 (BIA 2012): Administrative closure is a docket‑management tool appropriate to await events outside the control of the parties or the court.
  • Matter of W‑Y‑U‑, 27 I. & N. Dec. 17 (BIA 2017): Clarifies factors for administrative closure and emphasizes that the BIA cannot use closure to second‑guess DHS enforcement priorities.
  • Riley v. Bondi, 145 S. Ct. 2190 (2025): The Supreme Court holds that the 30‑day petition‑for‑review deadline in § 1252(b)(1) is non‑jurisdictional—permitting, in theory, equitable exceptions. The Second Circuit notes this but finds no excuse presented for untimely review of earlier BIA decisions.
  • DHS Policy Guidance:
    • Mayorkas Memorandum (Sept. 30, 2021): Identifies as enforcement priorities noncitizens who unlawfully entered after November 1, 2020, among others.
    • Doyle Memorandum (Apr. 3, 2022): Directs OPLA attorneys on exercising PD and aligns with the post‑Nov. 2020 unlawful entry border‑security priority.
    These memoranda undermined petitioners’ argument that they were not enforcement priorities and, critically, were not “new” for § 1003.2(c)(1) purposes.

Impact and Practical Implications

  • Reopening based on policy guidance faces a temporal hurdle: DHS policy memoranda, executive orders, or similar materials will rarely qualify as “previously unavailable” if they predate the IJ hearing or prior BIA decision. Practitioners must identify genuinely new, material facts or evidence arising after the merits hearing.
  • PD as a reopening rationale is tenuous without concrete DHS action: While the BIA may in some circumstances consider the likelihood of relief available from another agency (Sheng Gao Ni), generalized reliance on policy guidance—especially guidance that categorizes the respondent as an enforcement priority—is unlikely to carry a motion to reopen. Evidence of actual DHS engagement (e.g., a written offer to join a motion, OPLA correspondence, or documentation of PD decisions) is more persuasive.
  • Administrative closure remains limited post‑Cruz‑Valdez restoration of Avetisyan: Closure is for events outside the parties’ and the court’s control (e.g., pending visa petitions, collateral criminal proceedings, or other agency adjudications). It is not for pausing a case to await PD, nor for relitigating DHS priorities (W‑Y‑U‑).
  • Enforcement‑priority designations matter: The 2021 and 2022 DHS guidance identifying post‑Nov. 1, 2020 unlawful entrants as priorities continues to influence courts’ assessments of PD likelihood. Respondents in this category will face an uphill battle arguing that PD is probable.
  • Exhaustion and abandonment doctrines are decisive: Unargued issues are forfeited (Debique), and unexhausted theories cannot be raised for the first time in the court of appeals when the government invokes exhaustion (Ud Din). Meticulous issue preservation at the BIA is essential.
  • Post‑Riley timing strategy: The recognition that § 1252(b)(1)’s 30‑day deadline is non‑jurisdictional opens the door to equitable tolling in exceptional cases, but litigants must affirmatively raise and support tolling or other excuses. Silence will forfeit the benefit.
  • Futility doctrine streamlines review: Even if a petitioner spots a potential analytical error, the court may affirm on futility grounds where the record makes the outcome inevitable (Gurung). Practitioners should build a record that demonstrates concrete, outcome‑changing developments.

Complex Concepts Simplified

  • Motion to reopen: A request asking the BIA to reopen a closed case based on new, material evidence that was not available and could not have been discovered at the time of the hearing. It is discretionary and tightly constrained by regulation.
  • Administrative closure: A docket‑management tool that temporarily removes a case from active adjudication to await an event or action outside the control of the parties or the court (e.g., a pending visa petition). It is not a final disposition and does not itself grant relief.
  • Prosecutorial discretion (PD): DHS’s authority to decide whether, how, and when to enforce immigration laws (e.g., whether to issue or dismiss a Notice to Appear, to join a motion to dismiss, or to defer action). The BIA and IJs generally cannot review DHS’s PD choices.
  • Enforcement‑priority guidance: DHS policies that set priority categories for enforcement resources (e.g., recent unlawful entrants, national security threats). Being in a priority category decreases the likelihood of PD.
  • “Material and previously unavailable” evidence: Information that could reasonably change the outcome and that did not exist or could not have been discovered with due diligence at the time of the original hearing.
  • Abuse of discretion: A deferential standard; the BIA abuses its discretion only if it acts arbitrarily, fails to provide a rational explanation, or departs without explanation from established policies.
  • Issue exhaustion: The requirement that a noncitizen present arguments first to the agency (IJ/BIA) before raising them in the court of appeals. If the government invokes exhaustion, new issues generally cannot be heard on petition for review.
  • Abandonment: Failing to brief an issue on appeal results in the court treating the issue as abandoned and declining to consider it.
  • Non‑jurisdictional deadline: A filing deadline that, although mandatory, does not limit the court’s subject‑matter jurisdiction; it may be subject to equitable exceptions like tolling if argued and supported (Riley v. Bondi).
  • “Inevitable on remand” (futility): The court may affirm despite potential error if the record shows the agency would reach the same result on remand.

Conclusion

In Castro‑Castro v. Bondi, the Second Circuit—applying settled principles in a non‑precedential order—denied a petition for review from the BIA’s denial of reopening. The court emphasized that:

  • Reopening requires genuinely new and material evidence; policy memoranda predating the merits hearing do not qualify.
  • The BIA and IJs cannot review DHS’s discretionary PD decisions, and administrative closure cannot be used to await PD or to second‑guess DHS enforcement priorities.
  • Even where the BIA could consider the likelihood of PD in exercising discretion to reopen, DHS’s own guidance designating post‑Nov. 2020 unlawful entrants as enforcement priorities made favorable PD unlikely, rendering remand futile.
  • Issue exhaustion and abandonment can be outcome‑determinative; arguments not made to the BIA or not briefed on appeal will not be considered.
  • Post‑Riley, the petition‑for‑review deadline is non‑jurisdictional, but equitable exceptions must be expressly argued to benefit from that change.

For practitioners, the decision underscores the importance of: (1) timely and thoroughly preserving issues at the agency; (2) supporting reopening with concrete, newly arisen evidence (such as documented DHS PD actions), not just policy statements; (3) using administrative closure only for appropriate external contingencies; and (4) when necessary, explicitly arguing equitable tolling or other excuses for untimely filings. While not binding precedent, Castro‑Castro furnishes a practical roadmap for how the Second Circuit is likely to analyze similar reopening and administrative‑closure requests in the contemporary PD landscape.

Case Details

Year: 2025
Court: Court of Appeals for the Second Circuit

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