Motion to Administratively Close

Quick Summary

The Attorney General overruled Matter of Castro-Tum in Matter of Cruz-Valdez in 2021. Although Matter of Cruz-Valdez did not, in and of itself, establish a new administrative closure scheme, it restored the Board’s earlier decisions in Matter of Avetisyan and Matter of W-Y-U- to the status of binding precedents and instructed immigration judges to apply the administrative closure rules from those cases. Matter of Avetisyan and Matter of W-Y-U- are detailed below.

Admin Closure Factors

In sum the Board instructed immigration judges to consider the following factors in deciding whether to grant administrative closure in a given case:

1. the reason it is sought
2. the basis for any opposition <- The most important factor
3. the likelihood the respondent will succeed (on any pending relief)
4. duration
5. responsibility of either party (if anyone contributed to current or anticipated delay) and
6. the impact it will have on the outcome of the proceedings.

BIA Precedent and the Rules Have Been in Flux

Matter of W-Y-U- provided specific guidance to immigration judges on adjudicating motions for administrative closure where one party (most often the government) objects. In such cases, immigration judges should consider whether the opposing party provided a persuasive reason to proceed to resolving the removal proceedings on the merits.

Because Matter of S-O-G- & F-D-B- closely followed Matter of Castro-Tum, it was placed on shaky ground by the decision to overrule the latter. Moreover, one could argue it was effectively, if not expressly, abrogated by the direction in Matter of Cruz-Valdez to follow Matter of Avetisyan and Matter of W-Y-U with regard to motions to administratively close proceedings. It would be difficult to say the least to try to reconcile Matter of S-O-G- & F-D-B- with Avetisyan and W-Y-U-.

In Matter of Coronado Acevedo, Attorney General Garland made what was arguably implicitly clear in Matter of Cruz Valdez explicit and overruled Matter of S-O-G- & F-D-B-. While Matter of S-O-G- & F-D-B- is not identical to Matter of Castro-Tum, the Attorney General explained that its analysis followed directly from the central premises of the latter.

Admin Closure

Administrative Closure is a procedural mechanism in which the Court may take a case off of the the calendar for an indefinite period of time allowing for either party (DHS or Respondent) to request that the Court return the case to the Court's calendar at any time. It works as a continuance with no return date or return date to be set later once the parties are prepared for the case to be returned to the Court's calendar.

Administrative Closure is extremely useful in situations where a Respondent has a pending visa petition or waiver before USCIS. The proceedings can be administratively closed while USCIS adjudicates that petition/application and only scheduled for another hearing after it has either been approved or denied. Since neither party nor the judge can accurately predict how long it will take USCIS to adjudicate it administrative closure avoids the need for parties to return to court repeatedly just to continue the proceedings multiple times to achieve the same result.

Admin Closure is Particularly Useful in the Context of SIJS Approvals. 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).

Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017)

(1) The primary consideration for an Immigration Judge in evaluating 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. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), clarified.

(2) In considering administrative closure, an Immigration Judge cannot review whether an alien falls within the enforcement priorities of the Department of Homeland Security, which has exclusive jurisdiction over matters of prosecutorial discretion.

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.”

BIA's Full Decision at https://www.justice.gov/eoir/page/file/958526/dl

Factors Considered for Motion to Administratively Close

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.

While Matter of Avetisyan provides a list of factors to be considered, we now clarify that decision and hold 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.

Important Public Interest in Finality of Immigration Proceedings

There is an important public interest in the finality of immigration proceedings. INS v. Abudu, 485 U.S. 94, 107 (1988) (“There is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases.”). That interest is particularly clear here, since it is the respondent who is opposed to continuing administrative closure for an indefinite period and requests that his case proceed to a conclusion on the merits. An unreasonable delay in the resolution of the proceedings may operate to the detriment of aliens by preventing them from obtaining relief that can provide lawful status or, on the other hand, it may “thwart the operation of statutes providing for removal” by allowing aliens to remain indefinitely in the United States without legal status. Ukpabi v. Mukasey, 525 F.3d 403, 408 (6th Cir. 2008) (discussing the competing interests to be considered in evaluating a motion for continuance). The considerations regarding administrative closure should apply equally to respondents and the DHS.

LINKS

Admin Closure, a Tool for Immigration Court.

Practice Advisory

Related Articles

AG Eliminates Precedent Restricting Administrative Closure

On November 17, 2022, U.S. Attorney General Merrick Garland published an immigration precedent decision in the Matter of Coronado Acevedo, 28 I&N Dec. 648 (A.G. 2022) [PDF version]. The Attorney General overruled a prior Attorney General precedent, Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018) [PDF version], which had been published by former Attorney General Jeff Sessions in 2018. Matter of S-O-G- & F-D-B- limited the circumstances in which an immigration judge could dismiss or terminate removal proceedings through administrative closure. This decision generally disfavored alien respondents by precluding immigration judges from dismissing proceedings to allow them to obtain status or other forms of relief without departing or being removed from the United States. Matter of Coronado Acevedo is generally favorable to aliens in proceedings insofar as it returns the understanding of the immigration judge’s authority to dismiss proceedings to what it was before the Attorney General decision in Matter of S-O-G- & F-D-B- and Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) [PDF version], the latter of which was previously vacated by Attorney General Garland in Matter of Cruz-Valdez, 27 I&N Dec. 271 (A.G. 2018) [PDF version].