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Administrative Closure: New BIA Standards

By Debbie Smith

What can be done to temporarily stop removal proceedings while awaiting the adjudication of a visa petition, naturalization application, TPS application, or other benefit?  An individual in removal proceedings can request a brief rescheduling or continuance of the hearing or the administrative closure of the case.  The Board of Immigration Appeals recently revised the rules affecting administrative closure in a decision issued on January 31, 2012, Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012).

What is Administrative Closure.  Administrative closure is a procedural mechanism to temporarily stop removal proceedings by removing the case from the immigration judge’s or BIA’s calendar.  The case is administratively closed to allow an event outside the control of the parties to occur – even if the event does not take place for many years.  Once the case is administratively closed, neither the immigrant nor the government counsel need appear in court to  attend removal hearings until the case is re-calendared for a new hearing.  While the case is closed temporarily, administrative closure does not permanently terminate the case, eliminate the existing Notice to Appear (NTA), nor result in a final order of removal.

Administrative closure can be used to defer individual removal cases or the cases of large groups of people.  Under the settlement agreement in the American Baptist Churches case (ABC Settlement Agreement), the immigration court and the BIA were required to administratively close the deportation cases of all Guatemalan and Salvadoran class members to permit class members to have new asylum adjudications. American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991).

What Rules Govern Administrative Closure.  An individual in removal proceedings or the government attorney can request that the immigration judge or BIA administratively close the case.  Prior to the Matter of Avetisyan decision, a removal case could not be administratively closed if either party opposed the closure. Matter of Gutierrez, 21 I&N Dec. 479, 480 (BIA 1996).   However, the BIA overturned this rule in Matter of Avestisyan and held that immigration judges and the BIA may administratively close removal proceedings, even if one of the parties objects.  The BIA noted that once the removal case is commenced, jurisdiction over the case resides with the immigration judge or the BIA.  The decision to close proceedings, “[i]nvolves an assessment of factors that are particularly relevant to the efficient management of the resources of the Immigration Courts and the Board…”  This decision affirms that the immigration judges and BIA must exercise judgment independent of the desires of DHS.

What Factors Should Be Considered in Evaluating a Request for Administrative Closure.  The Matter of Avetisyan decision established a set of criteria for assessing whether to grant a request for administrative closure.  The BIA cautioned that all relevant factors presented in the case should be evaluated in making the administrative closure decision including: 1) the reason administrative closure is sought; 2) the basis for any opposition to administrative closure; 3) the likelihood the respondent will succeed on the petition, application, or other action that is being pursued outside the removal proceeding; 4) the anticipated time period of the closure; 5) the responsibility of either party in contributing to the delay; and 6) the expected outcome of removal proceedings when the case is finally re-calendared.

In Matter of Avetisyan, Ms. Avetisyan was an out-of-status J-1 visa holder who was placed in removal proceedings.  Ms. Avetisyan informed the court that her husband was in the process and naturalizing and would be filing a visa petition on her behalf.  The immigration judge continued the removal proceeding several times, initially to permit Ms. Avetisyan to provide proof of the naturalization and visa petition, but then to allow CIS to adjudicate the visa petition.  The immigration judge granted five continuances, during which time DHS counsel failed to bring the file to court several times.  Finally, Ms. Avetisyan requested that the case be administratively closed and the immigration judge, over the objection of DHS counsel, administratively closed the case.

Why Is Matter of Avetisyan Important.  Matter of Avetisyan is an important case because it sets forth legal standards that will assist representatives in presenting a request for administrative closure, reaffirms the independence of the Executive Office of Immigration Review, and clarifies that DHS prosecutorial discretion is limited to issues that arise before the NTA is issued.  Prosecutorial discretion is the authority that every law enforcement agency has to decide whether to exercise its enforcement powers against a person.  Even if there is a decision to exercise enforcement powers, discretion is used in deciding what degree and in what form it should take.  Last year DHS indicated that it will be reviewing cases in removal proceedings to consider which cases merit administrative closure.  In Matter of Avetisyan, the BIA states that the ultimate decision about whether to grant administrative closure remains with the immigration judge and the BIA.