W-Y-U

Cite as 

 (BIA 2017)                                 Interim Decision #3889




                       Matter of W-Y-U-, Respondent
                               Decided April 18, 2017

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

(1) The primary consideration for an Immigration Judge in evaluating whether to
   administratively close or recalendar proceedings is whether the party opposing
   administrative closure has provided a persuasive reason for the case to proceed and be
   resolved on the merits. Matter of Avetisyan, 

 (BIA 2012), clarified.
(2) In considering administrative closure, an Immigration Judge cannot review whether
   an alien falls within the enforcement priorities of the Department of Homeland
   Security, which has exclusive jurisdiction over matters of prosecutorial discretion.
FOR RESPONDENT: Pro se
BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members.
MALPHRUS, Board Member:


   On April 13, 2015, an Immigration Judge granted an oral motion of the
Department of Homeland Security (“DHS”) seeking administrative closure
of the respondent’s removal proceedings. The respondent opposed the
DHS’s motion and later filed a motion to recalendar the proceedings, which
the Immigration Judge denied on July 8, 2015. 1 The respondent has filed
an interlocutory appeal from that decision. The appeal will be sustained
and the record will be remanded to the Immigration Judge. 2
   The respondent is a native and citizen of China who entered the United
States on October 7, 2008. He filed a timely application for asylum
and related relief and protection, which he seeks to have the Immigration
Judge review in removal proceedings. The respondent argues that the
administrative closure of his case prevents him from pursuing that relief.
   “Administrative closure . . . is used to temporarily remove a case from
an Immigration Judge’s active calendar or from the Board’s docket.”
1
   The Immigration Judge also denied as moot the respondent’s motion to change venue.
Given our disposition of this case, the respondent may raise the issue of venue on remand.
2
   Although we do not ordinarily entertain interlocutory appeals, we find it appropriate to
address the merits of this appeal because it “raises an important question regarding the
administration of proceedings under our immigration laws.” Matter of Avetisyan, 

, 688–89 (BIA 2012).


                                           17
Cite as 

 (BIA 2017)                                 Interim Decision #3889




Matter of Avetisyan, 

 (BIA 2012). It is a docket
management tool that is used to temporarily pause removal proceedings.

. Administrative closure is not a form of relief from removal
and does not provide an alien with any immigration status. After a case has
been administratively closed, either party may move to recalendar it before
the Immigration Court, as the respondent did here, or to reinstate the appeal
before the Board. See 

 at 695 & n.5.
    In Matter of Avetisyan, we determined for the first time that
Immigration Judges and the Board have the authority to administratively
close a case when appropriate, even if a party opposes it. 

.3
Thus, we held that “it is improper to afford absolute deference to a party’s
objection” to administrative closure. 

 (overruling Matter of Gutierrez,

 (BIA 1996)). We stated that in evaluating whether
to grant a request for administrative closure, an Immigration Judge should
consider the following factors:

     (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 of 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 . . . when the case is recalendared.

Id. at 696. 4 This individualized evaluation prevents a party from keeping a
case on an Immigration Court’s active docket absent a reasoned explanation
or justification. Cf. Matter of Lamus, 

 (BIA 2009)
(concluding that a party’s opposition to a motion to reopen, “in and of
itself, should [not] be dispositive of the motion without regard to the merit
of that opposition”); Matter of Hashmi, 

 (BIA 2009)
(noting that the DHS’s “unsupported opposition” to a continuance “does
not carry much weight”).
    In this case, the Immigration Judge explained that he denied the
respondent’s motion to recalendar and kept his case administratively closed
to reserve the Immigration Court’s “limited adjudication resources to
resolve actual cases in dispute.” First, while we recognize the Immigration
Judge’s concerns regarding the most efficient use of limited resources, such
matters are secondary to a party’s interest in having a case resolved on the
3
   Immigration Judges also have broad discretion to grant continuances “for good cause
shown.” 

, 1240.6 (2016); see also Matter of Interiano-Rosa, 

 (BIA 2010). In many cases, granting a continuance may be more
appropriate than administratively closing a case.
4
   The same factors should be weighed in evaluating a motion to recalendar or reinstate.


                                           18
Cite as 

 (BIA 2017)                         Interim Decision #3889




merits. See Matter of C-B-, 

 (BIA 2012) (noting that
docket efficiency does not override an alien’s “invocation of procedural
rights and privileges”). In fact, Matter of Avetisyan does not list court
resources as a factor to consider in evaluating whether administrative
closure is appropriate. In a similar context, we held that “[c]ompliance
with . . . case completion goals . . . is not a proper factor in deciding a
continuance request.” Matter of Hashmi, 24 I&N Dec. at 793–94.
    Second, to the extent that the Immigration Judge concluded that this
matter does not present an “actual case[] in dispute,” we do not agree. An
alien in removal proceedings has a right to seek asylum and related relief
from persecution. See Matter of E-F-H-L-, 

, 321–23 (BIA
2014) (holding that an alien in removal proceedings generally has a right to
a full evidentiary hearing on applications for relief from persecution);

(c)(3) (2016). Therefore, assuming that his application
was properly filed and that he is eligible for the relief sought, the
respondent has a right to a hearing on the merits of his claim. If his
application is successful, he may be eligible for lawful status in the United
States, while administrative closure provides him no legal status. This is
not a case where an alien has filed for asylum with no intent to proceed on
the application to a resolution.
    Moreover, the fact that the DHS sought administrative closure in this
case is not dispositive of whether the respondent’s case is actually in
dispute. The role of the Immigration Courts and the Board is to adjudicate
whether an alien is removable and eligible for relief from removal in cases
brought by the DHS. We lack the authority to review the DHS’s decision
to institute proceedings, which involves the exercise of prosecutorial
discretion. See Matter of G-N-C-, 

 (BIA 1998);
Matter of Yazdani, 

 (BIA 1981). Since prosecutorial
discretion is a matter within the exclusive jurisdiction of the DHS, it
follows that in considering administrative closure, an Immigration Judge
cannot review whether an alien falls within the DHS’s enforcement
priorities or will actually be removed from the United States. See Matter of
Quintero, 

 (BIA 1982) (stating that “deferred action
status is a function of the District Director’s prosecutorial authority,” which
neither Immigration Judges nor the Board can review); cf. Matter of
P-C-M-, 

 (BIA 1991) (stating that the likelihood that
an alien will be deported is not a factor to be considered in a bond
determination). Thus, while the DHS’s actions may suggest that the
respondent’s case is not a priority for enforcement, they are not dispositive
of whether the case is in dispute.
    There is an important public interest in the finality of immigration
proceedings. INS v. Abudu, 

 (1988) (“There is a strong

                                      19
Cite as 

 (BIA 2017)                                 Interim Decision #3889




public interest in bringing litigation to a close as promptly as is consistent
with the interest in giving the adversaries a fair opportunity to develop and
present their respective cases.”). That interest is particularly clear here,
since it is the respondent who is opposed to continuing administrative
closure for an indefinite period and requests that his case proceed to a
conclusion on the merits. An unreasonable delay in the resolution of the
proceedings may operate to the detriment of aliens by preventing them
from obtaining relief that can provide lawful status or, on the other hand,
it may “thwart the operation of statutes providing for removal” by
allowing aliens to remain indefinitely in the United States without legal
status. Ukpabi v. Mukasey, 

 (6th Cir. 2008) (discussing
the competing interests to be considered in evaluating a motion for
continuance). The considerations regarding administrative closure should
apply equally to respondents and the DHS.
    While Matter of Avetisyan provides a list of factors to be considered, we
now clarify that decision and hold that the primary consideration for an
Immigration Judge in determining whether to administratively close or
recalendar proceedings is whether the party opposing administrative closure
has provided a persuasive reason for the case to proceed and be resolved on
the merits. 5
    The respondent is opposed to the continuation of administrative closure
and has requested recalendaring of the proceedings. He has explained
that he wants to pursue his application for asylum to its resolution. Under
these circumstances, recalendaring of the proceedings is appropriate.
Accordingly, we will sustain the respondent’s appeal, reinstate his removal
proceedings, and remand the record for further proceedings. 6
    ORDER: The appeal is sustained, the decision of the Immigration
Judge is vacated, and the removal proceedings are reinstated.
    FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.


5
   This decision is intended to provide additional guidance where one of the parties
opposes administrative closure. However, it is not applicable to cases in which the
parties jointly agree to administrative closure, recalendaring, or reinstatement. Moreover,
we continue to hold that neither party has “absolute veto power over administrative
closure requests.” Matter of Avetisyan, 25 I&N Dec. at 692.
6
   If the DHS had sought termination of the proceedings, which it chose not to do, this
case would present a different question. If the proceedings were terminated, the charges
against the respondent would be dismissed. He would therefore not have the same
interest in having his case resolved on the merits.


                                            20