How to obtain administrative closure of deportation proceedings without really trying

During the course of removal proceedings, an Immigration Judge or the Board of Immigration Appeals 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.

There are two ways to defer further action: continuation and administrative closure.

Continuance may be appropriate to defer further action on immigration proceedings, such as to await additional action required of the parties that will be or is expected to be completed within a reasonably certain and brief period of time. Under the regulations, 8 CFR 1003.29, continuance may be granted at the Immigration Judge’s own instance or for good cause shown at the request of a party. Continuation keeps the case on the Immigration Judge’s calendar.

Administrative closure is a procedural tool created for the convenience of the Immigration Courts and the Board. Matter of Avetisyan, 25 I&N Dec. 688, 690 (BIA 2012).  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. Matter of Avetisyan, 25 I&N Dec. 688, 690 (BIA 2012).  When a case is administratively closed, it is taken off the Immigration Judge’s active calendar, but the case may be re-calendared where the event being awaited does not take place or its result is adverse to the party seeking administrative closure. Thus, administrative closure does not result in a final order in the removal proceedings.

Factors in evaluating propriety of administrative closure

The factors considered in evaluating the propriety of administrative closure include, but is not limited to: (1) the reason administrative closure is sought, (2) the basis for any opposition to administrative closure, (3) the likelihood that the respondent will succeed on any petition, application or other action that such respondent 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 or anticipated delay, and (6) the ultimate outcome of removal proceedings, such as, for example, termination of the proceedings or entry of a removal order, when the case is re-calendared before the Immigration Judge or the appeal is reinstated before the Board. Matter of Avetisyan, 25 I&N Dec. 688, 696 (BIA 2012).

Effect of opposition by a party

In the olden days, a case may not be administratively closed if either of the parties opposes it. But in 2012, the Board of Immigration Appeals held that it is improper to afford absolute deference to a party’s objection, and 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. Matter of Avetisyan, 25 I&N Dec. 688, 690 (BIA 2012). 

Examples

I assisted another lawyer, who had no prior experience, in preparing a motion for administrative closure. An alien was admitted to the United States on a fiancée visa, adjusted her status to that of a lawful permanent resident, and was given a conditional permanent card with instructions to file a petition to remove the conditions within 2 years. Within the 90-day period before her conditional resident status expired, the alien filed a Form I-90, Application to Replace Permanent Resident Card. The USCIS denied her Application because it was not the correct form after the deadline for filing a petition to remove conditions on residence.

The alien then filed Form I-751, Petition to Remove Conditions on Residence. USCIS rejected the petition on the ground that the alien did not send the appropriate filing fee. USCIS terminated her status as a conditional resident alien. The alien was then placed in removal proceedings on the ground that her status as a conditional resident had been terminated. The alien hired a lawyer who filed a new Form I-751 with the appropriate fee. At the Master Calendar hearing, the alien with her lawyer filed the Motion for Administrative Closure that we prepared, in which we stated that administrative closure was proper to await the adjudication by USCIS of the Form I-751. We stated that administrative closure was appropriate in order 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. We contended that in the event that USCIS adjudicates Form I-751 in favor of respondent, then there would no longer be any basis to remove respondent from the United Sates. We pointed out that there was a great likelihood that respondent would succeed in obtaining USCIS approval of her Form I-751 since it was prima facie approvable and there were strong and plausible grounds for such favorable action. We said that Form I-751 was supported with significant and substantial evidence to establish the bona fides of respondent’s marriage to her U.S. citizen husband with whom she had two children, including joint tax returns, joint bank accounts, rental and utility bills in the names of the alien and her husband, etc. The USCIS had granted a year’s extension of the alien’s conditional resident status and had taken her biometrics. The Immigration Judge granted administrative closure.

On the other hand, a respondent with a criminal conviction asked for administrative closure of his removal proceedings so that he could pursue his petition to set aside his conviction on the ground of ineffective assistance of counsel in not telling him that if he pleaded guilty to drug distribution, his conviction would result in mandatory deportation. The lawyer contended that administrative closure was appropriate to await an action that was relevant to immigration proceedings but was outside the control of the parties or the court and may not occur for a significant or undetermined period of time. The Immigration Judge refused to administratively close the case or to grant continuance and ordered the alien removed. Subsequently, the alien obtained a favorable decision from the Court of Appeals Ninth Circuit holding that he was a victim of ineffective assistance of counsel. However, the alien had already been removed. He did not want to come back to the United States because immigration authorities said that he should pay his own fare in coming back and they would place him in jail upon arrival. The alien’s father said that his son had found a good life in his native land.

Granting administrative closure is discretionary, and like any discretionary determination, it is subject to abuse.

(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has a radio show, The Tipon Report, in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.bileckilawgroup.com. He was born in Laoag City, Philippines. He served as a U.S. Immigration Officer. He is a co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)