On April 18, 2017, the Board of Immigration Appeals (BIA or Board) addressed the case where an Immigration Judge (IJ) had granted a DHS motion to administratively close removal proceedings, which had been opposed by respondent who subsequently filed a motion to recalendar. The IJ denied that motion and respondent filed this interlocutory appeal. The BIA initially noted that in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), the Board had determined for the first time that IJs and the BIA “have the authority to administratively close a case when appropriate, even if a party opposes it” and reiterated the factors set forth in Avetisyan to be evaluated in ruling on a motion for administrative closure.
Here, the Board stated, the IJ denied the motion to recalendar and kept the case closed to reserve the court’s limited resources. However, while the IJ’s concerns as to the most efficient use of court resources were recognized, the opinion held that such matters are secondary to a party’s interest in having a case resolved on the merits. The BIA also noted that Matter of Avetisyan does not list court resources as a cognizable factor to evaluate in determining whether administrative closure is appropriate.
Further, the Board disagreed with the IJ’s conclusion that this matter is not an actual case in dispute, reiterating that one in removal proceedings has a right to seek asylum and related relief. Thus, assuming that his application was properly filed and “he is eligible for the relief sought”, respondent has a right to a hearing on the merits of his claim; that DHS sought administrative closure is not dispositive of whether the case is actually in dispute. The opinion emphasized that DHS’ motion, while perhaps suggesting the case is not an enforcement priority, is not dispositive of whether the matter remains in dispute.
Noting the important public interest in the finality of immigration proceedings and that such interest is “particularly clear” where an appellant opposes administrative closure, the BIA found that unreasonable delays in resolving proceedings may operate to a respondent’s detriment by preventing relief that provides lawful status or thwarts the operation of removal statutes. Thus, the Board held that while Avetisyan sets forth the relevant factors to consider when determining whether to administratively close or recalendar proceedings, it further clarified that decision by stating that the “primary consideration” is whether the party opposing closure has provided a persuasive reason for the case to proceed and be resolved on the merits. The appeal was thus sustained, proceedings reinstated, and the record remanded. Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017).
Learn more about the immigration services provided by Philip Levin & Associates.