A New Legal Standard for Administrative Closure

On January 31, 2012, the Board of Immigration Appeals (“BIA”) has ruled that an Immigration Judge has the authority to grant the administrative closure of the removal proceedings even if one party opposes, if the circumstances of the case support such a grant. Matter of Bavakan Avetisyan, 25 I&N Dec. 688 (BIA 2012).

Administrative closure is a procedural tool used to temporarily remove a case from the Immigration Judge’s calendar or the BIA’s docket. Administrative closure does not result in a final resolution of the case. When a case is administratively closed, it is just removed from the docket, but the merits of the case still remain pending.  In the immigration context, this procedural convenience may be appropriate in circumstances where the parties have other immigration applications pending, but the resolution on those is outside of their control and may not occur for a long period of time.

It was not always that an Immigration Judge could administratively close a case despite the opposition of one of the parties. In 1996, the BIA decided that an Immigration Judge could not close a case if either of the parties opposed (Matter of Gutierrez). In the recent Matter of Avetisyan, the BIA overruled the principle established in Gutierrez and found 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.” Thus, according to the new legal standard, the Immigration Judge may administratively close removal proceedings even if one party (usually DHS) opposes.

According to this new legal standard, the Immigration Judge should look at the totality of the circumstances of the case when deciding whether or not to grant administrative closure. The BIA has emphasized some of the relevant factors to be considered: “(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 the removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current anticipated delay; and (6) the ultimate outcome of removal proceedings.”

The new legal standard for administrative closure emphasizes that Immigration Judges and the BIA have the responsibility to exercise their independent judgment and discretion when deciding whether or not to make use of this procedural tool. The new standard clearly recognizes the Immigration Judge’s power to regulate the course of the removal proceedings and distinguishes this power from DHS’s authority to exercise prosecutorial discretion. We look forward to see how this new standard will be used by the Immigration Courts in the future and we hope this decision will be beneficial for many of our clients.