# Cite as 29 I&N Dec. 514 (BIA 2026)

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URL: https://www.frixlaw.com/law-library/documents/agency%3Aeoir%3Aa4da7e4ed29d16ce

## Record

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

## Text

Cite as 29 I&N Dec. 514 (BIA 2026)

Interim Decision #4173

Matter of Terisita MEDINA MADRID, Respondent
Decided March 13, 2026
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Where the respondent’s removal proceedings have been administratively closed for over
13 years, continued administrative closure is not warranted based on the respondent’s
intention to apply for a provisional unlawful presence waiver with United States
Citizenship and Immigration Services.
FOR THE RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: Crystal Morales, Assistant
Chief Counsel
BEFORE: Board Panel: OWEN and GALLOW, Appellate Immigration Judges; PICOS,
Temporary Appellate Immigration Judge.
GALLOW, Appellate Immigration Judge:

The Department of Homeland Security (“DHS”) has filed an
interlocutory appeal from the Immigration Judge’s October 6, 2025, decision
denying its motion to recalendar proceedings. Although we do not usually
entertain interlocutory appeals, we deem it appropriate to do so here to ensure
the proper application of the regulations governing the recalendaring of
administratively closed cases. See Matter of Cahuec Tzalam, 29 I&N
Dec. 300, 300 (BIA 2025). 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.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent, a native and citizen of Mexico, was placed in removal
proceedings in 2004 and charged with removability under section
212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1182(a)(6)(A)(i) (2000), as an “alien present in the United States without
being admitted or paroled, or who arrived in the United States at any time or
place other than as designated by the Attorney General.” In 2007, the
respondent filed an application for cancellation of removal for certain
nonpermanent residents under section 240A(b)(1) of the INA, 8 U.S.C.
§ 1229b(b)(1) (2006).
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Interim Decision #4173

DHS filed a motion to administratively close proceedings in the exercise
of prosecutorial discretion, which the respondent did not oppose. The
Immigration Judge granted the motion on January 24, 2013. Six years later,
the respondent married a lawful permanent resident. The respondent’s
spouse filed a Form I-130, Petition for Alien Relative, on her behalf on
October 1, 2019, and United States Citizenship and Immigration Services
(“USCIS”) approved the petition on November 14, 2024.
DHS filed a motion to recalendar proceedings on June 13, 2025. The
respondent opposed DHS’ motion to recalendar because she recently filed a
Form I-824, Application for Action on an Approved Application or Petition,
with USCIS in preparation of submitting a Form I-601A, Application for
Provisional Unlawful Presence Waiver to obtain an immigrant visa through
consular processing. The Immigration Judge denied DHS’ motion because
the respondent is actively pursuing collateral relief. The present appeal
followed.

II. DISCUSSION
Whether recalendaring removal proceedings is appropriate is a
discretionary issue the Board reviews de novo. See Matter of Ibarra-Vega,
29 I&N Dec. 476, 476–77 (BIA 2026); 8 C.F.R. § 1003.1(d)(3)(ii) (2026).
“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)); see also
8 C.F.R. § 1003.18(c) (2026) (“Administrative closure is the temporary
suspension of a case.”). 1 “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.” Matter of B-N-K-, 29 I&N Dec. at 97.
Either party may move to recalendar an administratively closed case. See
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
discretion,” including any factors listed at 8 C.F.R. § 1003.18(c)(3)(ii) and
any other relevant factors. Matter of Ibarra-Vega, 29 I&N Dec. at 477–78;
1

Section 1003.18(c) of title 8 of the Code of Federal Regulations 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). “In light of recent Supreme Court precedent,
serious questions have been raised about the constitutionality of administrative closure.”
Matter of Ibarra-Vega, 29 I&N Dec. at 483 n.3.
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accord 8 C.F.R. § 1003.18(c)(3). The primary consideration in determining
whether recalendaring is appropriate is whether there are persuasive reasons
for a case to proceed and be resolved on the merits. See Matter of B-N-K-,
29 I&N Dec. at 100.
With this standard in mind, we conclude that the Immigration Judge erred
in denying DHS’ motion to recalendar based on the totality of the
circumstances. The regulations specify that when removal proceedings are
administratively closed to allow the alien to pursue collateral relief, it is
relevant to consider the length of time that elapsed between the date of
administrative closure and the date the alien filed for collateral relief.
8 C.F.R. § 1003.18(c)(3)(ii)(D).
When removal proceedings are
administratively closed for reasons unrelated to an alien’s desire to file for
collateral relief but eligibility for collateral relief is argued as a basis for
continued administrative closure, we deem it equally important to consider
the passage of time between the date of administrative closure and the filing
of the application for collateral relief. Where this exceeds a temporary
period, continued administrative closure is heavily disfavored.
In this case, the removal proceedings were administratively closed in an
exercise of prosecutorial discretion more than 13 years ago. 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 in a recalendaring
determination). The respondent did not marry a lawful permanent resident
until 6 years later and has been seeking collateral relief for the past 7 years.
She opposes recalendaring of this matter to allow her more time to seek
collateral relief in the form of a provisional unlawful presence waiver.
The likelihood that the respondent will obtain a provisional unlawful
presence waiver is speculative, as she has yet to file an application with
USCIS. See 8 C.F.R. § 1003.18(c)(3)(ii)(F) (listing the likelihood of success
on collateral relief as a relevant factor for recalendaring). Her desire to
continue delaying removal proceedings based on her speculative eligibility
to pursue a provisional unlawful presence waiver 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). Even if the respondent had filed for a
provisional unlawful presence waiver, the average processing time for such
an application is approximately 28 months. USCIS, Case Processing Times,
https://egov.uscis.gov/processing-times (last visited Mar. 11, 2026); see also
Matter of Ibarra Vega, 29 I&N Dec. at 481 (stating that “absent unique
circumstances specific to an individual case, administrative closure in excess
of 6 months is presumptively unreasonable”).
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Additionally, the outcome of the respondent’s removal proceedings is not
impacted by her approved visa petition and intent to file a provisional
unlawful presence waiver application. See Matter of B-N-K-, 29 I&N Dec.
at 101 (concluding that a pending application for a collateral benefit that does
not impact the outcome of removal proceedings generally will not warrant
administrative closure). Even if the respondent’s provisional unlawful
presence waiver were granted, the respondent would have to depart the
United States to pursue consular processing because she has not been
admitted or paroled into the United States and is therefore ineligible for
adjustment of status. 2 See INA § 245(a), 8 U.S.C. § 1255(a) (2024).
Moreover, a final order of removal does not prevent the respondent from
filing for a provisional unlawful presence waiver if she has filed an
application seeking consent to reapply for admission and USCIS has
approved that application. See 8 C.F.R. § 212.7(e)(4)(iv) (2026). Thus, these
removal proceedings do not need to be administratively closed for the
respondent to apply for a provisional unlawful presence waiver.
Under these circumstances, further administrative closure exceeds all
reasonable interpretations of a temporary period. See Matter of Ibarra Vega,
29 I&N Dec. at 482 (holding that administrative closure for nearly 13 years
exceeds common-sense meanings of a temporary or reasonably short period).
Considering the respondent’s application for cancellation of removal was
never adjudicated, the lengthy period of administrative closure in this case
has operated, in effect, as amnesty, allowing an otherwise removable alien to
live indefinitely in the United States under a legally fictitious status. See
generally 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) (same).
“The expectation is that proceedings initiated by DHS will proceed to a
conclusion.” Matter of B-N-K-, 29 I&N Dec. at 99. Where, as here, the
respondent’s removal proceedings have been administratively closed for
over 13 years, continued administrative closure is not warranted based on the
respondent’s intention to apply for a provisional unlawful presence waiver
with USCIS. Thus, there are persuasive reasons for this case to proceed and
be resolved on the merits. See id. at 100. Considering the strong public
interest in the finality of immigration proceedings, we deem it appropriate to
recalendar these proceedings. See Matter of W-Y-U-, 27 I&N Dec. at 19.
Accordingly, we will reverse the Immigration Judge’s denial of DHS’ motion
2

The respondent has not otherwise demonstrated eligibility for adjustment of status under
section 245(i) of the INA, 8 U.S.C. § 1255(i) (2024).
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to recalendar proceedings. DHS’ appeal will be sustained, the removal
proceedings will be recalendared, and the record will be remanded for further
proceedings. In remanding, we express no opinion on the ultimate outcome
of these proceedings.

ORDER: DHS’ appeal is sustained, the Immigration Judge’s October 6,
2025, decision is vacated, and the removal proceedings are recalendared.
FURTHER ORDER: The record is remanded to the Immigration
Court for further proceedings consistent with the foregoing opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Aeoir%3Aa4da7e4ed29d16ce. Public record. Not legal advice.