Administrative Closure
Review of the underlying facts and the final results in Matter of Avetisyan and Matter of W-Y-U- might be helpful to place administrative closure into a factual context and for clear understanding.
It might be a good idea to reach back to 2009 when the BIA decided Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009).
The facts in Matter of Hashmi, related to a motion for continuance or adjournment under 8 C.F.R. § 1240.6 (2008) (providing that the Immigration Judge may grant a reasonable adjournment either at his or her own instance or, for good cause shown, upon application by the respondent or the Department of Homeland Security (“DHS”)).
Specifically, the respondent (i.e. a person who is the subject of immigration proceedings) had moved for a continuance based on a pending visa petition under consideration by the DHS. The DHS had opposed the continuance. The Immigration Judge had denied the continuance, and the respondent had appealed.
The BIA noted in Matter of Hashmi, 24 I&N Dec. 785, at 791 that the DHS’s “unsupported opposition” to a continuance “does not carry much weight”.
The BIA also noted that:
In appropriate circumstances, such as where there is a pending prima facie approvable visa petition, we urge the DHS to consider agreeing to administrative closure of the case. See generally Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996) (stating that administrative closure is used to temporarily remove the case from the court’s docket and that a case may not be administratively closed if opposed by either party). Administrative closure is an attractive option in these situations, as it will assist in ensuring that only those cases that are likely to be resolved are before the Immigration Judge. This will avoid the repeated rescheduling of a case that is clearly not ready to be concluded. Notably, either party can move to have the case recalendered once the visa petition has been adjudicated or some other factor has arisen indicating that the case is ready for a hearing. Id.
See Matter of Hashmi, 24 I&N Dec. 785, at 791, n.4.
In Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), an Immigration Judge had granted the respondent's motion for administrative closure over the DHS opposition, and the DHS” had filed an interlocutory appeal.
Specifically, after multiple continuances, in part necessitated due to the absence of the DHS file which had been sent back and forth between the DHS litigation unit and the “visa petition unit,” the Immigration Judge had granted the respondent’s motion for administrative closure. The DHS had offered to agree to an adjournment or continuance, but had opposed administrative closure.
Ultimately, the BIA held that in determining whether to grant a request for administrative closure, the BIA required Immigration Judges consider the following factors:
(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 . . . when the case is recalendared.
See Matter of Avetisyan, 25 I&N Dec. 688, at 696 (BIA 2012).
Moreover the BIA stated that neither party has “absolute veto power over administrative closure requests.” Matter of Avetisyan, 25 I&N Dec. at 692.
The circumstances surrounding the decision in Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) flips the positions of the parties regarding a motion for administrative closure.
In Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), the Immigration Judge had granted the motion of the DHS seeking administrative closure of the respondent’s removal proceedings over the respondent’s opposition.
The respondent had filed a timely application for asylum and other relief from removal and wanted a hearing related to relief in his removal proceedings. In short, the respondent had argued that the administrative closure of his case prevented him from pursuing relief from removal.
In Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), the BIA clarified Matter of Avetisyan by holding that the primary consideration for an Immigration Judge in determining whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.
Finally, the BIA further re-emphasized its determination in Matter of Avetisyan that neither party has “absolute veto power over administrative closure requests.” Matter of W-Y-U-, 27 I&N Dec. 17, at 20, n.5 (BIA 2017).
Hopefully, this brief review will save some time for those with issues relating to continuances and administrative closure in removal proceedings.