Board of Immigration Appeals (BIA) Offers New Standard for Administrative Closure

On January 31, the Board of Immigration Appeals (BIA) published an important decision on “administrative closure” decisions: http://www.justice.gov/eoir/vll/intdec/vol25/3740.pdf

In the Matter of Avetisyan a citizen of Armenia who entered the U.S. as a J-1 visa holder, was later placed in removal proceedings.  During one of her hearings the respondent informed the immigration judge that she recently married a man who was in the process of naturalizing and that the couple had a child together.  At the final hearing, the respondent requested her removal proceedings be “administratively closed” to allow her marriage-based visa petition to be adjudicated by USCIS.  The IJ administratively closed proceedings over the DHS counsel’s objection. BIA  agreed IJ had the authority to administrative close proceedings and also found IJ’s decision to close proceedings was properly exercised.

BIA offered the following new legal standard for determining whether administrative closure is appropriate in a removal case: “[A]n Immigration Judge or the Board should weigh all relevant factors, including but not limited to: (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 before IJ or the appeal is reinstated before BIA.” BIA also reclaimed EOIR’s duties by concluding the Immigration Court and BIA may administratively close cases even when a party opposes, overruling its own decision in Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996).

Matter of Avetisyan also identifies the limitations of prosecutorial discretion following issuance of a NTA.  Here, BIA distinguishes DHS’ prosecutorial discretion authority from the IJ’s authority to regulate removal proceedings and manage the Court’s calendar, concluding DHS opposition alone is insufficient to bar an IJ’s decision to administrative close removal proceedings.  Essentially, the ultimate decision about administrative closure lies within EOIR and must be made in accordance with the law.

Finally, Matter of Avetisyan offers a legal standard for future administrative closure decisions.  BIA’s new standard on administrative closure is consistent with its decisions on motions to reopen and requests for continuances.

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Credit for the above exerpt to Shoba Sivaprasad Wadhia