LOPEZ-BARRIOS

                                                              Interim Decision #3135




                    MATTER OF LOPEZ-BARRIOS
                           In Deportation Proceedings

                                     A-29928921

                       Decided by Board May 23, 1990

(1) The administrative closing procedure may not be used if it is opposed by either party
  to the proceedings.
(2) If an immigration judge is satisfied that the notice provided to a respondent who
  failed to appear for a scheduled hearing was sufficient, then a hearing in absentia may
  be held, but if the notice was not sufficient, then termination of proceedings, not
  administrative closing, is appropriate.

CHARGE:
Orden Act of 1952—Sec. 241(a)(2) [

(a)(2)1—Entered without inspection
ON BEHALF OF RESPONDENT:                               ON BEHALF OF SERVICE:
 Pro set
                                                          David M. Dixon
                                                          Appellate Counsel

                                                          Mitchil Bechet
                                                          General Attorney

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members


   In a decision dated September 14, 1989, an immigration judge
administratively closed the respondent's case when the respondent
failed to appear for a scheduled hearing. The Immigration and
Naturalization Service appealed. The appeal will be sustained and the
record will be remanded to the immigration judge for further action.
  The decision of the immigration judge which the Service seeks to
have reviewed is interlocutory in nature. While this Board does not
ordinarily entertain interlocutory appeals, we shall consider this

  1 We note that the immigration judge granted a motion to withdraw by the
respondent's former counsel. However, since the address provided by the respondent
appears to be incorrect or no longer current, this order and all future notices relating to
this case are to be served on the respondent's former counsel. See 8 C.F.R. g 292.5(a)
(1990). This will ensure that she will be apprised of the status of the deportation
proceedings against her should she contact her former counsel again.

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Interim Decision #3135

interlocutory appeal pursuant to our decision in Matter of Amico, 

 (BIA 1988). In its appeal, the Service argues that notices
of scheduled hearings were sent to the respondent at an address she
had provided. The Service therefore argues that the immigration judge
should not have administratively closed the case but rather should
have held an in absentia hearing pursuant to section 242(b) of the
Immigration and Nationality Act, 

(b) (1988).
   As we stated in Matter of Amico, supra, administrative closing is
merely an administrative convenience. It allows the removal of cases
from the immigration judge's calendar in certain circumstances.
However, it does not result in a final order. Thus, for instance, if it is
used when a respondent fails to appear for a hearing, the respondent is
able to avoid an order regarding her deportability. Id. We therefore
hold that the administrative closing procedure should not be used if it
is opposed by either party to the proceedings. Accordingly, administrative closing was inappropriate in this case, in the face of the Service's
opposition to such action. We will therefore remand the record to the
immigration judge for consideration of the evidence presented and the
entry of an appropriate order.
   When a respondent fails to appear for a scheduled hearing, the
Service should be allowed to allege, on the record, that proper notice of
the hearing was given to the respondent. If it is alleged that notice was
sent to the last known address of an unrepresented respondent, the
Service should provide to the court information regarding that
address, and the basis for its belief that it is the last known address. If
the immigration judge is satisfied that the notice provided to the
respondent was in fact sufficient, then a hearing in absentia, in
accordance with section 242(b) of the Act, may be held. If the notice
was not sufficient, then termination of proceedings, not administrative
closing, is appropriate.
   We make it clear that we are not hereby ruling on the merits of the
Service's evidence of deportability, the adequacy of notice to the
respondent, or any other factors affecting a finding of deportability or
the availability of relief in this case. These are issues to be considered
by the immigration judge at the hearing, following presentation of the
evidence. The immigration judge will then be in a position to enter an
appropriate order.
   ORDER:         The appeal is sustained and the record is remanded
to the immigration judge for further action in accordance with the
foregoing decision.




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