When a person is placed in removal proceedings (deportation), there are several commonly relied-upon forms of relief, including Asylum & Withholding, Cancellation of Removal for Permanent Residents, Cancellation of Removal for Non-Permanent Residents, Suspension of Deportation, Waiver of Excludability, Voluntary Departure, and Adjustment of Status.  Each of the foregoing have independent and specific requirements and burdens of proof.

 

In certain cases, a process called “Administrative Closure” can be used to temporarily stop removal proceedings by removing the case from the immigration judge’s (or Board of Immigration Appeal’s) calendar.  Where granted, the case can be “placed on hold” to wait for the adjudication of a visa petition, naturalization application, or other immigration benefit that is pending (or recently filed).  In some cases, the case can be halted for several years. 

 

When a case is administratively closed, it is taken off calendar and no hearings or activity take place through the Immigration Court until the case is re-calendared for a new hearing.  Because the process does not terminate the proceedings, the Notice to Appear (charging document) is still valid, but no final order of removal is entered.  While both the Respondent or DHS attorney may request Administrative Closure, jurisdiction over the case resides with the immigration judge or the BIA.  Under the Matter of Avestisyan, the decision to close proceedings, is based on “an assessment of factors that are particularly relevant to the efficient management of the resources of the Immigration Courts and the Board…”, and the immigration judges and BIA must exercise judgment independent from the will of DHS.  Therefore, the immigration judge and the BIA may administratively close removal proceedings, even if the DHS objects.

 

Under Matter of Avetisyan, the relevant factors to be taken into consideration are:

 

1. the basis for seeking administrative closure;

2. the basis for any opposition to administrative closure;

3. the likelihood the respondent will succeed on any relief or benefit application that is being pursued outside the removal proceeding;

4. the anticipated time period of the closure;

5. the responsibility of either party in contributing to the delay; and

6. the expected outcome of removal proceedings when the case is finally re-calendared.

 

While not applicable under many circumstances in immigration court, administrative closure can be an important option, and play a critical role in removal proceedings defense.  Discuss with your immigration attorney to decide whether Administrative Closure can play an integral part in the removal proceedings defense and case strategies.

 

Thomas D. Rosenberg, Esq.

RKF Global