The Board of Immigration Appeals has rendered a decision that empowers Immigration Judges to administratively close removal proceedings when the Department does not consent to administrative closure. See Matter of Bavakan AVETISYAN, 25 I&N Dec. 688 (BIA 2012).
The case involves a woman who is a native and citizen of Armenia. She is married to a United States citizen, and they have a child together. She came to the United States legally, but didn't leave the country after she completed her studies. An immigrant petition was filed with all the requisite supporting documentation establishing that her marriage was real, and copies were provided to the Court. If approved, the Respondent appears prima facie eligible for adjustment of status As such, the Respondent requested administrative closure of the case while the immigrant visa petition was pending.
The Department objected to administrative closure of the case despite the fact that they were not prepared to go forward in Court because the file was in the hands of visa petition unit awaiting adjudication. The Department instead requested a continuance of proceedings. The Court denied the Department's request for a continuance, and instead ordered administrative closure over the Department's objections. The Board affirmed the IJ's decision.
In doing so, the Board revisited their previous finding in In Matter of Gutierrez, 21 I&N Dec. 479, at 480 (BIA 1996), were the general rule was established that “[a] case may not be administratively closed if opposed by either of the parties. When taking a second look at the issue the Board found the general rule "troubling" because it afforded DHS "absolute veto power" over administrative closure requests.
The new rule is as follows:
(1) Pursuant to the authority delegated by the Attorney General and the responsibility to exercise that authority with independent judgment and discretion, the Immigration Judges and the Board may administratively close removal proceedings, even if a party opposes, if it is otherwise appropriate under the circumstances. Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996), overruled.
(2) In determining whether administrative closure of proceedings is appropriate,an 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 the Immigration Judge or the appeal is reinstated before the Board.
I have been arguing for the past 15 years that an IJ does not need the acquiescence of the Department to administratively close removal proceedings. Only one Judge, Sandy K. Hom, agreed with my argument, and the Department appealed his decision. The case remains pending before the Board, for now.
Matthew Kolken is a trial lawyer with experience in all aspects of United States Immigration Law – including Immigration Courts throughout the United States, and appellate practice before the Board of Immigration Appeals, the U.S. District Courts, and U.S. Courts of Appeals. He is admitted to practice in the courts of the State of New York , the United States District Court for the Western District of New York, the United States Court of Appeals for the Second Circuit, and is a member of the American Immigration Lawyers Association (AILA).