W-Y-U

Cite as 27 I&N Dec. 17 (BIA 2017) Interim Decision #3889

Matter of W-Y-U-, Respondent

Decided April 18, 2017

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(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.

FOR RESPONDENT: Pro se

BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members.

MALPHRUS, Board Member:

On April 13, 2015, an Immigration Judge granted an oral motion of the

Department of Homeland Security (“DHS”) seeking administrative closure

of the respondent’s removal proceedings. The respondent opposed the

DHS’s motion and later filed a motion to recalendar the proceedings, which

the Immigration Judge denied on July 8, 2015. 1 The respondent has filed

an interlocutory appeal from that decision. The appeal will be sustained

and the record will be remanded to the Immigration Judge. 2

The respondent is a native and citizen of China who entered the United

States on October 7, 2008. He filed a timely application for asylum

and related relief and protection, which he seeks to have the Immigration

Judge review in removal proceedings. The respondent argues that the

administrative closure of his case prevents him from pursuing that relief.

“Administrative closure . . . is used to temporarily remove a case from

an Immigration Judge’s active calendar or from the Board’s docket.”

1

The Immigration Judge also denied as moot the respondent’s motion to change venue.

Given our disposition of this case, the respondent may raise the issue of venue on remand.

2

Although we do not ordinarily entertain interlocutory appeals, we find it appropriate to

address the merits of this appeal because it “raises an important question regarding the

administration of proceedings under our immigration laws.” Matter of Avetisyan, 25 I&N

Dec. 688, 688–89 (BIA 2012).

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Cite as 27 I&N Dec. 17 (BIA 2017) Interim Decision #3889

Matter of Avetisyan, 25 I&N Dec. 688, 692 (BIA 2012). It is a docket

management tool that is used to temporarily pause removal proceedings.

Id. at 690, 694. Administrative closure is not a form of relief from removal

and does not provide an alien with any immigration status. After a case has

been administratively closed, either party may move to recalendar it before

the Immigration Court, as the respondent did here, or to reinstate the appeal

before the Board. See id. at 695 & n.5.

In Matter of Avetisyan, we determined for the first time that

Immigration Judges and the Board have the authority to administratively

close a case when appropriate, even if a party opposes it. Id. at 690, 694.3

Thus, we held that “it is improper to afford absolute deference to a party’s

objection” to administrative closure. Id. (overruling Matter of Gutierrez,

21 I&N Dec. 479, 480 (BIA 1996)). We stated that in evaluating whether

to grant a request for administrative closure, an Immigration Judge should

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.

Id. at 696. 4 This individualized evaluation prevents a party from keeping a

case on an Immigration Court’s active docket absent a reasoned explanation

or justification. Cf. Matter of Lamus, 25 I&N Dec. 61, 65 (BIA 2009)

(concluding that a party’s opposition to a motion to reopen, “in and of

itself, should [not] be dispositive of the motion without regard to the merit

of that opposition”); Matter of Hashmi, 24 I&N Dec. 785, 791 (BIA 2009)

(noting that the DHS’s “unsupported opposition” to a continuance “does

not carry much weight”).

In this case, the Immigration Judge explained that he denied the

respondent’s motion to recalendar and kept his case administratively closed

to reserve the Immigration Court’s “limited adjudication resources to

resolve actual cases in dispute.” First, while we recognize the Immigration

Judge’s concerns regarding the most efficient use of limited resources, such

matters are secondary to a party’s interest in having a case resolved on the

3

Immigration Judges also have broad discretion to grant continuances “for good cause

shown.” 8 C.F.R. §§ 1003.29, 1240.6 (2016); see also Matter of Interiano-Rosa, 25 I&N

Dec. 264, 265 (BIA 2010). In many cases, granting a continuance may be more

appropriate than administratively closing a case.

4

The same factors should be weighed in evaluating a motion to recalendar or reinstate.

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Cite as 27 I&N Dec. 17 (BIA 2017) Interim Decision #3889

merits. See Matter of C-B-, 25 I&N Dec. 888, 890 (BIA 2012) (noting that

docket efficiency does not override an alien’s “invocation of procedural

rights and privileges”). In fact, Matter of Avetisyan does not list court

resources as a factor to consider in evaluating whether administrative

closure is appropriate. In a similar context, we held that “[c]ompliance

with . . . case completion goals . . . is not a proper factor in deciding a

continuance request.” Matter of Hashmi, 24 I&N Dec. at 793–94.

Second, to the extent that the Immigration Judge concluded that this

matter does not present an “actual case[] in dispute,” we do not agree. An

alien in removal proceedings has a right to seek asylum and related relief

from persecution. See Matter of E-F-H-L-, 26 I&N Dec. 319, 321–23 (BIA

2014) (holding that an alien in removal proceedings generally has a right to

a full evidentiary hearing on applications for relief from persecution);

8 C.F.R. § 1240.11(c)(3) (2016). Therefore, assuming that his application

was properly filed and that he is eligible for the relief sought, the

respondent has a right to a hearing on the merits of his claim. If his

application is successful, he may be eligible for lawful status in the United

States, while administrative closure provides him no legal status. This is

not a case where an alien has filed for asylum with no intent to proceed on

the application to a resolution.

Moreover, the fact that the DHS sought administrative closure in this

case is not dispositive of whether the respondent’s case is actually in

dispute. The role of the Immigration Courts and the Board is to adjudicate

whether an alien is removable and eligible for relief from removal in cases

brought by the DHS. We lack the authority to review the DHS’s decision

to institute proceedings, which involves the exercise of prosecutorial

discretion. See Matter of G-N-C-, 22 I&N Dec. 281, 284 (BIA 1998);

Matter of Yazdani, 17 I&N Dec. 626, 630 (BIA 1981). Since prosecutorial

discretion is a matter within the exclusive jurisdiction of the DHS, it

follows that in 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. See Matter of

Quintero, 18 I&N Dec. 348, 350 (BIA 1982) (stating that “deferred action

status is a function of the District Director’s prosecutorial authority,” which

neither Immigration Judges nor the Board can review); cf. Matter of

P-C-M-, 20 I&N Dec. 432, 434 (BIA 1991) (stating that the likelihood that

an alien will be deported is not a factor to be considered in a bond

determination). Thus, while the DHS’s actions may suggest that the

respondent’s case is not a priority for enforcement, they are not dispositive

of whether the case is in dispute.

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

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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.

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. 5

The respondent is opposed to the continuation of administrative closure

and has requested recalendaring of the proceedings. He has explained

that he wants to pursue his application for asylum to its resolution. Under

these circumstances, recalendaring of the proceedings is appropriate.

Accordingly, we will sustain the respondent’s appeal, reinstate his removal

proceedings, and remand the record for further proceedings. 6

ORDER: The appeal is sustained, the decision of the Immigration

Judge is vacated, and the removal proceedings are reinstated.

FURTHER ORDER: The record is remanded to the Immigration

Judge for further proceedings consistent with the foregoing opinion and for

the entry of a new decision.

5

This decision is intended to provide additional guidance where one of the parties

opposes administrative closure. However, it is not applicable to cases in which the

parties jointly agree to administrative closure, recalendaring, or reinstatement. Moreover,

we continue to hold that neither party has “absolute veto power over administrative

closure requests.” Matter of Avetisyan, 25 I&N Dec. at 692.

6

If the DHS had sought termination of the proceedings, which it chose not to do, this

case would present a different question. If the proceedings were terminated, the charges

against the respondent would be dismissed. He would therefore not have the same

interest in having his case resolved on the merits.

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