# Cite as 29 I&N Dec. 476 (BIA 2026)

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URL: https://www.frixlaw.com/law-library/documents/agency%3Aeoir%3A4cdf0202cef06984

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

Cite as 29 I&N Dec. 476 (BIA 2026)

Interim Decision #4167

Matter of Sandra IBARRA-VEGA, Respondent
Decided February 27, 2026
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) When a U nonimmigrant visa is not immediately available to a respondent and the
record does not establish that one is likely to be available in the reasonably near future,
administrative closure over the Department of Homeland Security’s objection is
inappropriate.
(2) The Board’s statement in Matter of B-N-K-, 29 I&N Dec. 96, 99 (BIA 2025), that
administrative closure is only appropriate for “a reasonably short period of time” applies
in the context of both the initial decision to administratively close a case and the decision
to recalendar a case.
(3) The Board and Immigration Judges have no authority to use administrative closure as
a de facto extra-statutory form of relief that effectively grants amnesty to thousands of
removable aliens because they may be eligible for a visa sometime in the future.
FOR THE RESPONDENT: Milva V. Lehm, Esquire, Phoenix, Arizona
FOR THE DEPARTMENT OF HOMELAND SECURITY: Conor McNulty, Assistant
Chief Counsel
BEFORE: Board Panel: MONTANTE, OWEN, and GALLOW, Appellate Immigration
Judges.
OWEN, Appellate Immigration Judge:

The Department of Homeland Security (“DHS”) has filed an
interlocutory appeal from the Immigration Judge’s September 16, 2025,
decision denying its motion to recalendar these removal proceedings. The
respondent, a native and citizen of Mexico, opposes the appeal. The appeal
will be sustained, the Immigration Judge’s decision will be vacated, the
proceedings will be recalendared, and the record will be remanded to the
Immigration Judge.
Although we do not usually entertain interlocutory appeals, we deem it
appropriate to do so here to ensure proper application of the regulations
governing the recalendaring of administratively closed cases. See Matter of
Cahuec Tzalam, 29 I&N Dec. 300 (BIA 2025) (adjudicating interlocutory
appeal from a decision granting administrative closure).
Whether
administrative closure or recalendaring of removal proceedings is
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appropriate is a discretionary issue we review de novo. See id. at 301;
8 C.F.R. § 1003.1(d)(3)(ii) (2026).

I. FACTUAL AND PROCEDURAL HISTORY
Removal proceedings commenced against the respondent in 2010. On
August 30, 2013, DHS filed a motion to administratively close these
proceedings in the exercise of its prosecutorial discretion, which the
respondent did not oppose. The Immigration Judge granted the motion for
administrative closure on September 4, 2013. On May 4, 2018, the
respondent filed a petition for a nonimmigrant visa under section
101(a)(15)(U) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1101(a)(15)(U) (2018), (“U visa”) with United States Citizenship and
Immigration Services (“USCIS”).
On June 26, 2025, DHS filed a motion to recalendar the removal
proceedings before the Immigration Judge. In its motion, DHS explained
that the respondent’s U visa petition remained pending and argued that
recalendaring was appropriate to resolve the removal proceedings on the
merits. The respondent opposed DHS’ motion and submitted a receipt notice
showing that she filed a U visa petition with USCIS. The Immigration Judge
denied DHS’ motion based on the pendency of the U visa petition. The
present appeal followed.

II. DISCUSSION
“Administrative closure is intended to be a docket management tool ‘used
to temporarily remove a case from an Immigration Judge’s active calendar
or from the Board’s docket.’” Matter of B-N-K-, 29 I&N Dec. 96, 97 (BIA
2025) (quoting Matter of W-Y-U-, 27 I&N Dec. 17, 17–18 (BIA 2017)). “It
is not a form of relief from removal, does not provide an alien with any
immigration status, and is not intended to be used to delay proceedings
indefinitely.” Id.; see also 8 C.F.R. § 1003.18(c) (2026) (“Administrative
closure is the temporary suspension of a case.”). 1 After a case has been
administratively closed, either party may move to recalendar the case.
8 C.F.R. § 1003.18(c)(2). When a motion to recalendar is opposed by the
nonmoving party, an Immigration Judge must consider the totality of the
circumstances in deciding whether to grant the motion as a matter of

The regulation at 8 C.F.R. § 1003.18(c) governs administrative closure and
recalendaring by Immigration Judges. The Board is governed by a materially identical
regulation at 8 C.F.R. § 1003.1(l) (2026).

1

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discretion, including any relevant factors listed
§ 1003.18(c)(3)(ii). See 8 C.F.R. § 1003.18(c)(2)–(3).

at

8

C.F.R.

We have previously discussed the factors Immigration Judges should
consider in deciding whether to delay removal proceedings based on a
pending U visa petition in the context of a continuance request. See Matter of
Sanchez Sosa, 25 I&N Dec. 807 (BIA 2012). Although administrative
closure and continuance requests are governed by separate regulatory
standards, compare 8 C.F.R. § 1003.18(c), with 8 C.F.R. § 1003.29 (2020),
they are related procedural mechanisms. See Vahora v. Holder, 626 F.3d
907, 918 (7th Cir. 2010) (observing that a continuance is the “procedural
device most closely akin” to administrative closure).
In Matter of Sanchez Sosa, we held that, “[a]s a general rule, there is a
rebuttable presumption that an alien who has filed a prima facie approvable
[U visa petition] with the USCIS will warrant a favorable exercise of
discretion for a continuance for a reasonable period of time.” 25 I&N Dec.
at 815. The factors of prima facie approvability and a reasonable time limit
for continuance based on a pending U visa are consistent with the relevant
factors considered in the context of administrative closure and recalendaring.
See 8 C.F.R. § 1003.18(c)(3)(i)(D)–(E), (ii)(C)–(F) (listing the likelihood of
success on the pending collateral matter and the “anticipated duration of the
administrative closure” as relevant factors); see also Matter of
Cahuec Tzalam, 29 I&N Dec. at 302 (explaining that when “a request for
administrative closure is based on the pendency of a collateral matter, there
must be ‘some foreseeable resolution to the ongoing proceedings within a
reasonably short period of time’” (quoting Matter of B-N-K-, 29 I&N Dec. at
99)).
Congress has capped the number of U visas that may be granted in any
given year at 10,000. INA § 214(p)(2)(A), 8 U.S.C. § 1184(p)(2)(A) (2024).
At the time we decided Matter of Sanchez Sosa, the demand for U visas was
dramatically lower than it is today. At the end of fiscal year 2011,
approximately 8 months prior to our decision in Matter of Sanchez Sosa,
there were 10,250 pending U visa petitions, including Mr. Sanchez Sosa’s.
See USCIS, Number of Form I-918 Petitions for U Nonimmigrant Status,
Fiscal Years 2009-2025 (Oct. 8, 2025), https://www.uscis.gov/tools
/reports-and-studies/immigration-and-citizenship-data (from dropdowns
choose “U Nonimmigrant Status,” “Oct,” and “2025;” then click “Search;”
then select “Form I-918, Petition for U Nonimmigrant Status”). Based on
historical denial rates and USCIS’ practice of granting the maximum number
of available visas every year, it would have been reasonable to expect that
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visas for all or most approvable U visa petitions pending at the end of fiscal
year 2011 could be issued in fiscal year 2012. See id.
However, when the respondent filed her U visa petition in May 2018,
there were well over 100,000 pending U visa petitions, meaning that she
would likely need to wait over a decade to receive a visa even if eligible for
one. See id.; see also Gonzalez v. Cuccinelli, 985 F.3d 357, 363
(4th Cir. 2021) (observing that “far more than 10,000 aliens seek U-Visas”
and that “[a]s a result, there is a significant gap between U-Visa petitions that
meet the eligibility criteria and petitions that the agency may grant”). The
number of pending U visa petitions has since risen to almost 250,000,
meaning that eligible petitioners who apply today will likely need to wait
over 2 decades for a visa to become available. USCIS, supra.
With this background in mind, we conclude that the Immigration Judge
erred in denying DHS’ motion to recalendar based on the totality of the
circumstances. “[W]hether there are persuasive reasons for a case to proceed
and be resolved on the merits is the primary consideration in determining
whether administrative closure is appropriate under the totality of the
circumstances.” Matter of B-N-K-, 29 I&N Dec. at 100; see also 8 C.F.R.
§ 1003.18(c)(3)(ii)(A). DHS wants to recalendar the respondent’s case to
bring these removal proceedings to a conclusion on the merits. We have
repeatedly held that a party’s interest in bringing removal proceedings to a
close on the merits is a persuasive reason to move forward with the case. See
Matter of Cahuec Tzalam, 29 I&N Dec. at 305; Matter of B-N-K-, 29 I&N
Dec. at 101; Matter of W-Y-U-, 27 I&N Dec. at 20.
The respondent’s removal proceedings have been administratively closed
for almost 13 years, and she has not obtained any form of lawful status in the
United States during that time. See 8 C.F.R. § 1003.18(c)(3)(ii)(C)
(providing that the “length of time elapsed since the case was
administratively closed” is a relevant factor). As explained further below,
the respondent’s desire to continue delaying removal proceedings based on
her speculative eligibility for a U visa sometime in the future is not a
persuasive reason against recalendaring. See 8 C.F.R. § 1003.18(c)(3)(ii)(B)
(providing that the “basis for any opposition to recalendaring” is a relevant
factor).
The only evidence the respondent submitted in opposition to DHS’
motion was a receipt notice from USCIS showing that she filed a U visa
petition. She did not submit any other evidence to establish prima facie
eligibility for a U visa. See 8 C.F.R. § 1003.18(c)(ii)(F) (providing that “the
likelihood the [alien] will succeed” on the pending collateral matter is a
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relevant factor). Nor has she submitted evidence showing that USCIS made
a bona fide determination regarding her prima facie eligibility for a U visa or
placed her on a waiting list after determining her eligibility. See 8 C.F.R.
§ 214.14(d)(2) (2026) (providing that USCIS will place eligible U visa
petitioners who cannot be granted a visa due to the numerical cap on a
waiting list); 3 USCIS Policy Manual, pt. C, chs. 5–6 (explaining the
agency’s bona fide determination and waiting list processes for U visa
petitioners). “The absence of evidence demonstrating prima facie eligibility
for the collateral benefit sought strongly militates against a grant of
administrative closure.” Matter of Cahuec Tzalam, 29 I&N Dec. at 304;
cf. Matter of Sanchez-Sosa, 25 I&N Dec. at 813–14 (explaining that
respondents seeking a continuance based on a pending U visa should submit
evidence before the Immigration Judge demonstrating prima facie eligibility,
including copies of all filings with USCIS).
Moreover, even assuming the respondent’s petition is prima facie
approvable, there is no indication in the record that a visa would become
available “within a reasonably short period of time” such that continued
closure of these proceedings is warranted. Matter of B-N-K-, 29 I&N Dec.
at 99. Although counsel states in the respondent’s brief that she expects
USCIS to adjudicate her petition in the next 1 or 2 years this speculation is
not evidence and is not supported by any record evidence. See Matter of
Mariscal-Hernandez, 28 I&N Dec. 666, 673 (BIA 2022) (explaining that
statements of counsel are not evidence and are not entitled to evidentiary
weight (citing Matter of J.J. Rodriguez, 27 I&N Dec. 762, 765–66
(BIA 2020)). As we have held in analogous contexts, administrative closure
is not appropriate if based on a respondent’s potential ability to obtain a visa
“at some remote time in the future.” Matter of Cahuec Tzalam, 29 I&N Dec.
at 305; see also Matter of Gomez-Beltran, 26 I&N Dec. 765, 771–72
(BIA 2016) (“[A]dministrative closure would not have been warranted
because of the remote availability of a visa and the speculative nature of the
respondent’s ability to adjust his status . . . .”); cf. Matter of Quintero, 18 I&N
Dec. 348, 350 (BIA 1982) (“[T]he fact that the respondent has an approved
visa petition does not entitle him to delay the completion of deportation
proceedings pending availability of a visa number.”).
We further note that the issue of visa availability is not the same as
“delays in the USCIS approval process.” Malilia v. Holder, 632 F.3d 598,
606 (9th Cir. 2011) (explaining that a respondent “should not have to bear
the ultimate cost for USCIS’s inefficiencies”). The respondent’s present
inability to obtain a visa is not the result of any action or inaction by USCIS.
There is currently no visa available to her because Congress has only
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authorized the issuance of 10,000 U visas per year while there are hundreds
of thousands of other aliens who have applied for one.
When, as here, a U nonimmigrant visa is not immediately available to a
respondent and the record does not establish that one is likely to be available
in the reasonably near future, administrative closure over DHS’ objection is
inappropriate because it effectively “amount[s] to a decision not to apply the
Nation’s immigration laws at all.” Hernandez-Serrano v. Barr, 981 F.3d
459, 463 (6th Cir. 2020). The Board and Immigration Judges have no
authority to use administrative closure as a de facto extra-statutory form of
relief that effectively grants amnesty to thousands of removable aliens
because they may be eligible for a visa sometime in the future. 2 See
Galo-Garcia v. INS, 86 F.3d 916, 918 (9th Cir. 1996) (explaining that the
Board and Immigration Judges lack authority to grant relief not provided by
the INA or regulations); Matter of Medina, 19 I&N Dec. 734, 746
(BIA 1988).
We emphasize that the Board’s statement in Matter of B-N-K-, 29 I&N
Dec. at 99, that administrative closure is only appropriate for “a reasonably
short period of time” applies in the context of both the initial decision to
administratively close a case and the decision to recalendar a case. See also
8 C.F.R. § 1003.18(c)(3) (providing that administrative closure and
recalendaring are governed by the same standards). It also applies regardless
of what collateral action a party is waiting for, whether it is the adjudication
of a visa petition, application for an inadmissibility waiver, or any other
immigration benefit; the availability of a visa number; or any myriad changes
in personal circumstances that may impact a removal proceeding.
What constitutes a reasonably short period may vary based on the
“totality of the circumstances” and the factors “relevant to the particular
case.” Id. However, consistent with our responsibility to “provide clear and
uniform guidance . . . on the proper interpretation and administration of the
[INA] and its implementing regulations,” 8 C.F.R. § 1003.1(d)(1), we
conclude that absent unique circumstances specific to an individual case,
administrative closure in excess of 6 months is presumptively unreasonable.
In contrast, DHS does have the authority to defer enforcement action against removable
aliens who are eligible to receive a U visa but for the cap. See 8 C.F.R. § 214.14(d)(2).
The Supreme Court “has specifically recognized that federal statutes contemplate and
protect the discretion of [DHS] when making determinations concerning deferred action.”
Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 974 (9th Cir. 2017) (citing Reno v. Am.Arab Anti-Discrimination Comm., 525 U.S. 471, 484–86 (1999)). However, as noted
above, the respondent has not presented any evidence showing that USCIS has determined
that she would be eligible for a U visa.

2

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A presumptive 6-month time limit comports with the requirement that
administrative closure be “temporary,” 8 C.F.R. § 1003.18(c), and prevents
its abuse as a “facially unlawful” means to effect the “permanent closure” of
removal proceedings. Hernandez-Serrano, 981 F.3d at 465; see also
Arcos Sanchez v. Att’y Gen. U.S., 997 F.3d 113, 123 (3d Cir. 2021)
(acknowledging that administrative closure has been “misused” to “unduly
delay or permanently close and not decide cases”). Here, the respondent’s
removal proceedings have been administratively closed for nearly 13 years,
a period of time that cannot be characterized as “temporary” or “reasonably
short” under any common-sense meaning of those terms.
This case illustrates the inherent tension between the vague regulatory
standard for administrative closure and DHS’ clear statutory authority to
enforce the immigration laws through prosecution of removal proceedings to
completion. “Congress has plenary power to regulate immigration and the
conditions on which aliens remain in the United States.” Mendez-Garcia v.
Lynch, 840 F.3d 655, 669 (9th Cir. 2016) (citation omitted). In exercising
that power, Congress has vested DHS with the authority over “enforcement
of . . . all . . . laws relating to the immigration and naturalization of aliens,”
INA § 103(a)(1), 8 U.S.C. § 1103(a)(1) (2024), and to “establish[] national
immigration enforcement policies and priorities,” 6 U.S.C. § 202(5) (2024).
Part and parcel of that statutory authority is DHS’ “exclusive authority to
control the prosecution of [removable] aliens.” Matter of J-A-B- & I-J-V-A-,
27 I&N Dec. 168, 171 (BIA 2017) (alteration in original) (citation omitted).
If DHS chooses “to initiate proceedings against an alien and to prosecute
those proceedings to a conclusion, [Immigration Judges] and the Board must
order [removal] if the evidence supports a finding of [removability] on the
ground charged.” Matter of Yazdani, 17 I&N Dec. 626, 630 (BIA 1981);
see also Cortez-Felipe v. INS, 245 F.3d 1054, 1057 (9th Cir. 2001) (holding
that Immigration Judges and the Board lack authority to review discretionary
decisions regarding when and whether to initiate removal proceedings).
Administrative closure over DHS’ objection is not appropriate when used
simply to enable a removable respondent “to avoid an order regarding his
[removability], and the consequences an order of [removal] could bring.”
Matter of Amico, 19 I&N Dec. 652, 654 (BIA 1988). Applying the
administrative closure regulations in such a manner unduly interferes with
DHS’ broad statutory authority to “prioritize the removal of some and to
deprioritize the removal of” other aliens. Casa De Md. v. U.S. DHS, 924 F.3d
684, 691 (4th Cir. 2019). It could also raise serious constitutional issues
implicating the separation of powers if the result is to effectively create a
form of immigration relief not clearly provided by Congress. See
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Biden v. Nebraska, 600 U.S. 477, 504 (2023) (“‘A decision of such
magnitude and consequence’ on a matter of ‘earnest and profound debate
across the country’ must ‘res[t] with Congress itself, or an agency acting
pursuant to a clear delegation from that representative body.’” (alteration in
original) (quoting West Virginia v. EPA, 597 U.S. 697, 735 (2022))).
A final relevant factor to consider is the “ultimate anticipated outcome if
the case is recalendared.” 8 C.F.R. § 1003.18(c)(3)(ii)(G). This factor is
neutral based on the limited record before us. On remand to the Immigration
Judge, the respondent may be able to establish her eligibility for some form
of relief from removal that the Immigration Judge has jurisdiction to grant.
Or she may be ordered removed from the United States.

III. CONCLUSION
Considering the totality of the circumstances and for the reasons
discussed above, the Immigration Judge erred in denying DHS’ motion to
recalendar these removal proceedings. 3 Accordingly, we will sustain DHS’
appeal, recalendar these removal proceedings, and remand the record to the
Immigration Judge for further proceedings. In remanding, we express no
opinion on the ultimate outcome of these proceedings.

ORDER:
The appeal is sustained, the Immigration Judge’s
September 16, 2025, decision is vacated, and these removal proceedings are
recalendared.

3
In light of recent Supreme Court precedent, serious questions have been raised about
the constitutionality of administrative closure. Specifically, the use of administrative
closure to effectively close immigration cases permanently may raise questions under the
“major questions doctrine,” which “address[es] a particular and recurring problem:
agencies asserting highly consequential power beyond what Congress could reasonably be
understood to have granted.” West Virginia v. EPA, 597 U.S. at 724. The doctrine applies
“when an agency claims the power to resolve a matter of great political significance or end
an earnest and profound debate across the country.” Id. at 743 (Gorsuch, J., concurring)
(citation modified). Immigration is undoubtedly a matter of “great political significance”
and subject to “earnest and profound debate” across the United States. And Congress has
not granted the Board or Immigration Judges the authority to use administrative closure as
a form of amnesty for removable aliens DHS has elected to prosecute for removal. See
Hernandez-Serrano, 981 F.3d at 464 (recognizing that “administrative closure was simply
a device ‘created’ by the IJs themselves” (quoting Matter of Avetisyan, 25 I&N Dec. 688,
690 (BIA 2012))). The parties are free to address any issues regarding the constitutionality
of administrative closure on remand.

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FURTHER ORDER: The record is remanded for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Aeoir%3A4cdf0202cef06984. Public record. Not legal advice.