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Cite as 25 I&N Dec. 688 (BIA 2012) Interim Decision #3740

Matter of Bavakan AVETISYAN, Respondent

Decided January 31, 2012

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(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.

FOR RESPONDENT: Pro se

FOR THE DEPARTMENT OF HOMELAND SECURITY: Wendy L. Wallace, Assistant

Chief Counsel

BEFORE: Board Panel: MILLER, ADKINS-BLANCH, and GUENDELSBERGER, Board

Members.

MILLER, Board Member:

In a decision dated June 25, 2009, an Immigration Judge administratively

closed the removal proceedings against the respondent. The Department

of Homeland Security (“DHS”) has filed this interlocutory appeal from that

decision. To avoid piecemeal review of the myriad questions that may arise

in the course of proceedings before us, we do not ordinarily entertain

interlocutory appeals. See Matter of Ruiz-Campuzano, 17 I&N Dec. 108 (BIA

1979). We have, however, on occasion ruled on the merits of interlocutory

appeals where we deemed it necessary to address important jurisdictional

questions regarding the administration of the immigration laws or to correct

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recurring problems in the handling of cases by Immigration Judges. See, e.g.,

Matter of Guevara, 20 I&N Dec. 238 (BIA 1990, 1991); Matter of Dobere,

20 I&N Dec. 188 (BIA 1990). Inasmuch as this appeal raises an important

question regarding the administration of proceedings under our immigration

laws, we will address it. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Armenia. On April 21, 2004, the

DHS personally served the respondent with a Notice to Appear (Form I-862),

which alleged that she was admitted to the United States on or about March 8,

2003, as a nonimmigrant J-1 exchange visitor for special studies and that her

participation in the program ended on March 30, 2003. The Notice to Appear

charged that the respondent was removable under section 237(a)(1)(C)(i)

of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(C)(i) (2000),

as a nonimmigrant who failed to maintain or comply with the conditions of the

status under which she was admitted. At a hearing on June 3, 2004, the

respondent admitted the factual allegations and conceded the charge but

indicated that she wished to apply for relief from removal.

At a subsequent hearing on November 15, 2006, the respondent advised the

Immigration Judge that she had recently married, that she and her husband had

a United States citizen child, and that her husband was in the process

of becoming a naturalized United States citizen and would be filing a visa

petition on her behalf. The Immigration Judge continued the hearing for proof

of the husband’s naturalization and filing of the visa petition.

At the next hearing on February 14, 2007, the respondent presented proof

that the visa petition was filed on January 29, 2007, but indicated that her

husband had not yet been sworn in as a citizen. The Immigration Judge again

continued the proceedings. On June 14, 2007, the respondent informed the

Immigration Judge that her husband had become a citizen and that they had

been interviewed in connection with the visa petition on May 30, 2007, but

that additional documents had been requested.1 During continued proceedings

on September 25, 2007, the respondent stated that she had provided all of the

requested documents and was awaiting adjudication of the visa petition.

The Immigration Judge granted five additional continuances for the

adjudication of the pending visa petition. During the December 11, 2007,

hearing, counsel for the DHS indicated that she did not have the file and that

it was possibly with the visa petition unit. On April 15, 2008, counsel for the

1

Although the record before us does not include the husband’s certificate of naturalization,

there is no allegation from the DHS that he is not now a United States citizen.

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DHS explained that the file was being transferred back and forth for each

hearing before the Immigration Judge. At that time, the respondent sought

administrative closure of the case pending the adjudication of the visa petition,

to which the DHS counsel objected.

Two subsequent hearings were held on January 5, 2009, and April 21,

2009. During the final hearing on June 25, 2009, the respondent again asked

that proceedings be administratively closed. The DHS counsel opposed

administrative closure and requested one additional continuance. The

Immigration Judge denied the DHS’s request and administratively closed the

proceedings.

II. ISSUE

The issue before us is whether an Immigration Judge or the Board has the

authority to administratively close a case if either party to the proceeding

opposes. We review this question of law de novo. 8 C.F.R. § 1003.1(d)(3)(ii)

(2011).

III. ANALYSIS

Administrative closure is a procedural tool created for the convenience

of the Immigration Courts and the Board.2 Matter of Gutierrez, 21 I&N

Dec. 479, 480 (BIA 1996). In Gutierrez, we held that a case may not

be administratively closed if either of the parties has opposed. We now find

that it is improper to afford absolute deference to a party’s objection,

and we hold that an Immigration Judge or the Board has the authority

to administratively close a case, even if a party opposes, if it is otherwise

appropriate under the circumstances.

A. Authority of the DHS, the Immigration Judge, and the Board

Immigration proceedings are civil proceedings undertaken to determine

an individual’s eligibility to remain in the United States. See INS

v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984); Matter of D-R-, 25 I&N Dec.

445, 462 (BIA 2011). The DHS is invested with the sole discretion

2

Administrative closure is not limited to the immigration context. It is utilized throughout

the Federal court system, under a variety of names, as a tool for managing a court’s docket.

See St. Marks Place Hous. Co., Inc. v. U.S. Dep’t of Hous. & Urban Dev., 610 F.3d 75,

80-81 (D.C. Cir. 2010); Ali v. Quarterman, 607 F.3d 1046, 1047-48 (5th Cir. 2010);

Penn-America Ins. Co. v. Mapp, 521 F.3d 290, 295-96 (4th Cir. 2008); CitiFinancial Corp.

v. Harrison, 453 F.3d 245, 250-51& nn.11-13 (5th Cir. 2006).

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to commence removal proceedings. See 8 C.F.R. § 239.1(a) (2011); see also

8 C.F.R. § 235.6(a) (2011). Removal proceedings are commenced by the

filing of a notice to appear with the Immigration Court, with service on the

respondent. Section 239 of the Act, 8 U.S.C. § 1229 (2006); 8 C.F.R. § 1239.1

(2011). Prior to the commencement of proceedings, the DHS may cancel

a notice to appear for specified reasons. 8 C.F.R. §§ 239.2(a), 1239.2(a)

(2011). Thereafter, the DHS may move to dismiss proceedings on any ground

that may have warranted cancelling the notice to appear. 8 C.F.R. §§ 239.2(c),

1239.2(c).

Once the notice to appear is filed with the Immigration Court,

jurisdiction over proceedings vests with the Immigration Judge. 8 C.F.R.

§ 1003.14(a) (2011). In immigration proceedings, it is the Immigration

Judge’s responsibility to determine whether the respondent is subject

to removal as charged in the notice to appear and to adjudicate the

respondent’s application for relief from removal, if any. Sections

240(a)(3), (c)(1)(A) of the Act, 8 U.S.C. §§ 1229a(a)(3), (c)(1)(A) (2006);

8 C.F.R. §§ 1240.1(a)(1)(i), 1240.11 (2011). In conducting proceedings,

an Immigration Judge exercises the powers and duties delegated by law and

by the Attorney General of the United States through regulation. 8 C.F.R.

§ 1003.10(b) (2011). An Immigration Judge has the authority to regulate the

course of the hearing and to take any action consistent with applicable law

and regulations as may be appropriate. 8 C.F.R. §§ 1240.1(a)(1)(iv), (c).

In deciding individual cases, an Immigration Judge must exercise his or her

independent judgment and discretion and may take any action consistent with

the Act and regulations that is appropriate and necessary for the disposition

of such cases. 8 C.F.R. § 1003.10(b).

The Board is similarly empowered by the Attorney General through

regulation to resolve the questions before it on appeal in a manner that

is timely, impartial, and consistent with the Act. 8 C.F.R. § 1003.1(d)(1).

Board Members must exercise independent judgment and discretion

in considering and determining the cases coming before them, and they may

take any action consistent with their authority under the Act and the

regulations as is appropriate and necessary for the disposition of the case.

8 C.F.R. § 1003.1(d)(1)(ii).

During the course of proceedings, an Immigration Judge or the Board may

find it necessary or, in the interests of justice and fairness to the parties,

prudent to defer further action for some period of time. One option available

to an Immigration Judge is a continuance. Because it keeps a case on the

Immigration Judge’s active calendar, a continuance may be appropriately

utilized to await additional action required of the parties that will be,

or is expected to be, completed within a reasonably certain and brief

amount of time. Pursuant to regulation, a continuance may be granted at the

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Immigration Judge’s own instance or, for good cause shown, upon the

request of a party. 8 C.F.R. §§ 1003.29, 1240.6 (2011); see also Matter

of Silva-Rodriguez, 20 I&N Dec. 448 (BIA 1992); Matter of Perez-Andrade,

19 I&N Dec. 433 (BIA 1987); Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983).

Administrative closure, which is available to an Immigration Judge and the

Board, is used to temporarily remove a case from an Immigration Judge’s

active calendar or from the Board’s docket. Matter of Gutierrez, 21 I&N Dec.

at 480. In general, administrative closure may be appropriate to await

an action or event that is relevant to immigration proceedings but is outside

the control of the parties or the court and may not occur for a significant

or undetermined period of time.3

The Board’s published jurisprudence on the issue of administrative closure

began in the context of in absentia cases. In Matter of Amico, 19 I&N Dec.

652, 653 (BIA 1988), the Immigration Judge administratively closed the case

over the objection of the former Immigration and Naturalization Service

(“INS”) when the alien failed to appear for the last hearing scheduled

in deportation proceedings, which had already been continued several times

and in which deportability had been established. We found that administrative

closure was inappropriate under the circumstances, where the record at that

time indicated that all notice requirements had been met and where

administratively closing the case allowed the alien, by simply failing to appear,

to avoid an order regarding his deportability and all of the associated

consequences. Id. at 654; see also Matter of Lopez-Barrios, 20 I&N Dec. 203,

204 (BIA 1990); Matter of Rosales, 19 I&N Dec. 655, 656 (BIA 1988).

In Matter of Gutierrez, 21 I&N Dec. at 480, we stated a general rule that

“[a] case may not be administratively closed if opposed by either of the

parties.” This statement, which has been interpreted as investing a party,

typically the DHS, with absolute veto power over administrative closure

requests, is troubling in a number of respects. First, in Gutierrez, we had

administratively closed the alien’s appeal pursuant to the settlement agreement

in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal.

1991), so that she could apply for temporary protected status, and the issue was

whether the alien could obtain reopening of proceedings to pursue

an application for adjustment of status when there had been no request for the

Board to reinstate the appeal or for the Immigration Judge to recalendar the

case. There was no issue as to the propriety of administrative closure and

3

Outside the immigration context, see, for example, Penn-America Ins. Co. v. Mapp,

521 F.3d at 293-96, discussing a Federal district court’s administrative closure of the

indemnification portion of a declaratory judgment action between the insurer and the insured

pending the resolution of the factual dispute in the State court suit between the insured and

an accident victim.

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no indication that administrative closure had ever been opposed. Also, there

was no concern that the alien would improperly benefit from administrative

closure, as in the in absentia context in Matter of Amico.

More importantly, the rule stated in Gutierrez directly conflicts with the

delegated authority of the Immigration Judges and the Board and their

responsibility to exercise independent judgment and discretion in adjudicating

cases and to take any action necessary and appropriate for the disposition

of the case. The circuit courts and the Board have rejected the notion that

a party to proceedings may exercise absolute veto power over the authority

of an Immigration Judge or the Board to act in proceedings involving motions

to reopen or requests for continuances.

Specifically, the United States Courts of Appeals for the Second, Sixth, and

Ninth Circuits have criticized our decision in Matter of Velarde, 23 I&N Dec.

253, 256-57 (BIA 2002), where we listed five factors required for granting

a motion to reopen to apply for adjustment of status based on a pending

family-based visa petition, one of which was the Government’s lack

of opposition to the motion. Ahmed v. Mukasey, 548 F.3d 768, 772 (9th Cir.

2008); Melnitsenko v. Mukasey, 517 F.3d 42, 50-52 (2d Cir. 2008); Sarr

v. Gonzales, 485 F.3d 354, 363-64 (6th Cir. 2007). The courts indicated that

permitting the DHS to unilaterally block such a motion to reopen interfered

with the Board’s exercise of its independent judgment and discretion.

Following the reasoning in those cases, we held in Matter of Lamus, 25 I&N

Dec. 61, 64-65 (BIA 2009), that a motion to reopen under Matter of Velarde

may not be denied based solely on DHS opposition to the motion and

without regard to the merit of that opposition. Rather, arguments advanced

in opposition to a motion should be considered but should not preclude

an Immigration Judge or the Board from exercising independent judgment and

discretion in adjudicating that motion. Id. at 65.

In Matter of Hashmi, 24 I&N Dec. 785, 790-91 (BIA 2009), we addressed

the issue in the context of DHS opposition to a request for a continuance,

enumerating nonexclusive factors for an Immigration Judge to address when

considering a request for a continuance pending the adjudication

of a family-based visa petition, which included the reasonableness of any DHS

opposition to a continuance. We specifically stated that unsupported DHS

opposition does not carry much weight and that an Immigration Judge should

evaluate the DHS’s objection considering the totality of the circumstances.

Id. at 791; see also Malilia v. Holder, 632 F.3d 598, 606 (9th Cir. 2011)

(approving of the factors set forth in Matter of Hashmi). In Matter of Rajah,

25 I&N Dec. 127, 135-36 (BIA 2009), we endorsed the same factors for

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consideration when the request for a continuance relates to a pending

employment-based visa petition.4

As with a motion to reopen or a request for continuance, we are persuaded

that neither an Immigration Judge nor the Board may abdicate the

responsibility to exercise independent judgment and discretion in a case

by permitting a party’s opposition to act as an absolute bar to administrative

closure of that case when circumstances otherwise warrant such action.

Accordingly, we hold that the Immigration Judges and the Board have

the authority, in the exercise of independent judgment and discretion,

to administratively close proceedings under appropriate circumstances, even

if a party opposes. To the extent that Matter of Gutierrez and related cases

hold, or may be construed to hold, otherwise, we now overrule them.

Inasmuch as the circuit courts that have addressed the matter have generally

deferred, either explicitly or implicitly, to our decision in Gutierrez, we find

no legal authority from those courts that constrains us from overruling

our decision. See Vahora v. Holder, 626 F.3d 907 (7th Cir. 2010);

Cantu-Delgadillo v. Holder, 584 F.3d 682 (5th Cir. 2009); Lopez-Reyes

v. Gonzales, 496 F.3d 20 (1st Cir. 2007); Garza-Moreno v. Gonzales, 489 F.3d

239 (6th Cir. 2007); Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. 2007);

see also Mickeviciute v. INS, 327 F.3d 1159, 1161 n.1 (10th Cir. 2003).

In reaching this decision, we have considered the respective roles

and responsibilities of the DHS, the Immigration Judges, and the Board

in removal proceedings. The DHS exercises its prosecutorial discretion

when it decides whether to commence removal proceedings and what

charges to lodge against a respondent. See Heckler v. Chaney, 470 U.S. 821,

831 (1985); Wayte v. United States, 470 U.S. 598, 607 (1985). Neither

an Immigration Judge nor the Board may review a decision by the DHS

to institute proceedings. Matter of Bahta, 22 I&N Dec. 1381, 1391

(BIA 2000). However, once jurisdiction over removal proceedings vests with

the Immigration Judge, he or she has the authority to regulate the

course of those proceedings. 8 C.F.R. §§ 1003.14(a), 1240.1(a)(1)(iv), (c).

Administrative closure is a tool used to regulate proceedings, that is,

to manage an Immigration Judge’s calendar (or the Board’s docket). Although

administrative closure impacts the course removal proceedings may take,

it does not preclude the DHS from instituting or pursuing those proceedings

and so does not infringe on the DHS’s prosecutorial discretion.

4

In both Matter of Hashmi, 24 I&N Dec. at 791 n.4, and Matter of Rajah, 25 I&N Dec.

at 135 n.10, we encouraged the DHS to consider administrative closure, rather than

additional continuances, in appropriate circumstances.

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This conclusion is evident from the undisputed fact that administrative

closure does not result in a final order. Thus, at any time after a case

has been administratively closed, the DHS may move to recalendar

it before the Immigration Judge or reinstate the appeal before the Board,

or it may seek immediate review of an Immigration Judge’s decision

to administratively close proceedings by filing an interlocutory appeal.5 See

Bravo-Pedroza v. Gonzales, 475 F.3d 1358, 1360 (9th Cir. 2007) (stating that

the Government’s possible exercise of prosecutorial discretion included

appealing the Immigration Judge’s decision or filing a motion to reopen).

In this way, administrative closure differs from termination of proceedings,

where the Immigration Judge or the Board issues a final order, which

constitutes a conclusion of the proceedings and which, in the absence

of a successful appeal of that decision or a motion, would require the DHS

to file another charging document to initiate new proceedings.6

In addition, under the guidance provided herein, infra, the decision

to administratively close proceedings (as opposed to the decision to commence

proceedings) involves an assessment of factors that are particularly relevant

to the efficient management of the resources of the Immigration Courts and the

Board and that are routinely evaluated by Immigration Judges, the Board,

and the circuit courts. See Heckler v. Chaney, 470 U.S. at 831-32; Wayte

v. United States, 470 U.S. 598. By way of analogy, we observe that the

decision to grant or deny a continuance or a motion to reopen, a matter

reserved to the discretion of the Immigration Judge or the Board (rather than

the DHS), also impacts the course of removal proceedings initiated by the

DHS. See 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1) (2011). The circuit courts and

the Board have crafted meaningful standards for assessing the propriety of

such decisions, rejecting the notion that DHS opposition alone is sufficient to

act as an absolute bar to action in those contexts. See Ahmed v. Mukasey,

548 F.3d 768; Melnitsenko v. Mukasey, 517 F.3d 42; Sarr v. Gonzales,

485 F.3d 354; Matter of Rajah, 25 I&N Dec. 127; Matter of Lamus, 25 I&N

Dec. 61; Matter of Hashmi, 24 I&N Dec. 785.

5

These options are also available to respondents.

6

Termination of proceedings typically occurs when the Immigration Judge or the Board

determines on the merits that the respondent is not removable as charged in the notice

to appear. An Immigration Judge has the regulatory authority to terminate proceedings

under two provisions not applicable here. See 8 C.F.R. §§ 1238.1(e), 1239.2(f) (2011).

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B. Standards for Evaluating When Administrative Closure

May Be Appropriate

Other than in the previously discussed cases in the in absentia context,

we have not specifically addressed the question of when administrative closure

is appropriate. We are persuaded that the guidance offered in our decisions

on motions to reopen and requests for continuances is useful when adapted

to the administrative closure context. Thus, we conclude that when evaluating

a request for administrative closure, it is appropriate for an Immigration Judge

or the Board to weigh all relevant factors presented in the case, 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.

Considering these factors, it may, for example, be appropriate for

an Immigration Judge to administratively close removal proceedings where

an alien demonstrates that he or she is the beneficiary of an approved visa

petition filed by a lawful permanent resident spouse who is actively pursuing,

but has not yet completed, an application for naturalization. Similarly, it may

be appropriate for the Board to administratively close proceedings on appeal

where the alien establishes that he or she has properly appealed from the

denial of a prima facie approvable visa petition, but the appeal has not been

forwarded to the Board for adjudication.

On the other hand, it would not be appropriate for an Immigration Judge

or the Board to administratively close proceedings if the request is based

on a purely speculative event or action (such as a possible change in a law

or regulation); an event or action that is certain to occur, but not

within a period of time that is reasonable under the circumstances (for

example, remote availability of a fourth-preference family-based visa);

or an event or action that may or may not affect the course of an alien’s

immigration proceedings (such as a collateral attack on a criminal conviction).

We emphasize, however, that these are examples only; each situation must

be evaluated under the totality of the circumstances of the particular case.

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C. Appeal of the DHS

The Immigration Judge in this case administratively closed proceedings

over the DHS’s objection. We find that the Immigration Judge had the

authority to do so in the exercise of her independent judgment and discretion.

The remaining question is whether the Immigration Judge properly exercised

that authority in this case. We conclude that she did.

The record shows that the respondent is the beneficiary of a prima facie

approvable visa petition filed by her now United States citizen spouse,

who is the father of her United States citizen child. The DHS objected

to administrative closure of the proceedings only because that visa petition had

not yet been adjudicated. However, despite the numerous continuances

granted by the Immigration Judge, and through no apparent fault of the

respondent or her petitioner husband, the visa petition has been pending before

the DHS for a significant and unexplained period of time. The DHS has not

identified any obvious impediment to the approval of the visa petition or to the

respondent’s ability to successfully apply for adjustment of status once the visa

petition is approved. Her adjustment of status would warrant termination

of these proceedings. We therefore agree with the Immigration Judge that the

circumstances in this case support the administrative closure of proceedings.7

IV. CONCLUSION

We hold that the Immigration Judges and the Board may, in the exercise

of independent judgment and discretion, administratively close proceedings

under the appropriate circumstances, even if a party opposes. To the extent

that Matter of Gutierrez and related cases hold, or may be construed to hold,

otherwise, they are hereby overruled. We agree with the Immigration Judge

that administrative closure is warranted in this case. Accordingly, the DHS’s

appeal will be dismissed and the record will be returned to the Immigration

Judge.

ORDER: The appeal of the Department of Homeland Security

is dismissed.

FURTHER ORDER: The record is returned to the Immigration Court

without further action.

7

Because we agree with the administrative closure of proceedings, we need not address the

DHS’s contention that the Immigration Judge erred in denying its request for a continuance.

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