New BIA precedent decision on administrative closure
The Board of Immigration Appeals issued a precedent decision about administrative closure, on April 18, 2017, in the Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017). Administrative closure is a procedure that temporarily removes a case from an immigration judge’s active calendar. It is usually done due to the possibility of some event that is “relevant to immigration proceedings but is outside the control of the parties or the court and may not occur for a significant or undetermined period of time.” Matter of Avetisyan, 25 I&N Dec. 688, 692 (BIA 2012). This article summarizes the new decision’s holding, discusses how it expands upon previous precedent and highlights ways that practitioners might use it in immigration court cases.
Summary of Matter of W-Y-U-
In Matter of W-Y-U-, the pro se respondent, a Chinese citizen, filed for asylum with the immigration court. The Department of Homeland Security asked the court to administratively close the respondent’s removal proceedings. The immigration court granted administrative closure over the respondent’s opposition, and the respondent then filed an interlocutory appeal to the BIA. He challenged the administrative closure of his case because he wanted to have his asylum claim heard by the immigration judge.
The BIA sustained the appeal and vacated the judge’s administrative closure decision. In its ruling, the BIA noted the following:
- Administrative closure is not a form a relief from removal and does not provide the respondent with any immigration status;
- BIA precedent establishes that immigration courts can grant administrative closure even if one party opposes it. In evaluating a request for administrative closure, immigration courts should conduct an individualized determination looking at several factors;
- These factors apply equally to respondents and the DHS;
- The immigration court’s limited resources are a secondary consideration to a party’s interest in having the case resolved;
- “[I]n considering administrative closure, an immigration judge cannot review whether an alien falls within the DHS’s enforcement priorities or will actually be removed from the United States.”
- The public interest in resolving removal proceedings is particularly strong when the respondent opposes administrative closure and wants his case to proceed to a conclusion on the merits;
- In evaluating administrative closure, the “primary consideration” is “whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.”
How Matter of W-Y-U- expands on earlier BIA precedent
Matter of W-Y-U- is an important expansion of an earlier BIA precedent decision on administrative closure, Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). In that case, the BIA ruled that immigration courts can grant administrative closure “in the exercise of independent judgment and discretion” even where one party opposes and overruled prior precedent on this issue. Matter of Avetisyan held that in deciding whether to administratively close proceedings, courts should weigh relevant factors, including but not limited to the following:
“(1) the reason administrative closure is sought;
“(2) the basis for any opposition to administrative closure;
“(3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings;
“(4) the anticipated duration of the closure;
“(5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and
“(6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared. . . ”
Id. at 696. Matter of W-Y-U- holds that when a court is considering a contested request for administrative closure, the most important of these factors is whether the party opposing closure has provided a persuasive reason for the case to proceed. It also clarifies that DHS’s position on how the respondent falls within its current enforcement priorities is not a factor that immigration courts can consider.
Applying Matter of W-Y-U- in immigration court matters
There are many reasons why a respondent may seek administrative closure, including where there is a pending application for relief with U.S. Citizenship and Immigration Services or a criminal or other state court matter that may affect the respondent’s immigration case. Practitioners should incorporate the reasoning of Matter of W-Y-U-, in addition to Matter of Avetisyan, in seeking administrative closure before the immigration court. Matter of W-Y-U- will be particularly relevant where DHS is opposed to the respondent’s request for administrative closure. In such cases, the respondent should:
- Argue why the Avetisyan factors support administrative closure;
- Note that The Department of Homeland Security, as the opposing party, has the burden to provide a persuasive reason why proceedings should not be administratively closed under Matter of W-Y-U-, and;
- Address why any justification provided by the DHS for opposing, which includes the respondent being within its current enforcement priorities, is not persuasive.
The Matter of W-Y-U- may be especially helpful in the context of children with approved Special Immigrant Juvenile Status petitions where the adjustment backlog prevents them from being immediately eligible to seek adjustment of status. Advocates in some jurisdictions, such as Arlington, Virginia, and Baltimore, , have reported that DHS has either opposed administrative closure requests for children with approved SIJS petitions whose priority date for adjustment is not yet current, or sought to re-calendar cases that were previously administratively closed. If DHS opposes administrative closure because of the SIJS adjustment backlog, practitioners can use Matter of W-Y-U- to argue that DHS has not provided a persuasive reason for its opposition and that any reliance on its current enforcement priorities is irrelevant. Note that even before the Matter of W-Y-U- decision, the BIA, in unpublished decisions, has found administrative closure appropriate for children with approved SIJS petitions awaiting visa availability. See, e.g, J-A-A-G-, AXXX XXX 844 (BIA Mar. 8, 2017); A-L-M-D-, AXXX XXX 671 (BIA Oct. 26, 2016).
Practitioners might also argue that proceeding with the removal case of children with pending or approved I-360s is inappropriate given the SIJS statute’s text (a pending SIJS petition means that a juvenile court has found that it is not in the child’s best interest to be returned, and an approved SIJS petition means that DHS has consented to the child’s SIJ status), purpose (to protect vulnerable children by giving them permanent status in the United States) and structure (Congress intended SIJS to be sought from inside the United States, and removing a child seeking SIJS impedes her continued ability to pursue that relief).
For further strategies on representing children in immigration court who are subject to the SIJS adjustment backlog, practitioners can consult CLINIC’s article on this topic, “Strategies for SIJS cases in light of adjustment backlog”.