B-N-K

Cite as 

 (BIA 2025)                                Interim Decision #4101




                       Matter of B-N-K-, Respondent
                               Decided June 6, 2025
                          U.S. Department of Justice
                   Executive Office for Immigration Review
                        Board of Immigration Appeals

(1) Because Immigration Judges and the Board have a duty to promptly and fairly bring
   removal proceedings to a close, whether there are persuasive reasons for a case to
   proceed and be resolved on the merits is the primary consideration in determining
   whether administrative closure is appropriate under the totality of the circumstances.
   Matter of W-Y-U-, 

 (BIA 2017), reaffirmed.
(2) A pending application for Temporary Protected Status generally will not warrant a
   grant of administrative closure.
FOR THE RESPONDENT: Daniel P. Brown, Esquire, Minneapolis, Minnesota
FOR THE DEPARTMENT OF HOMELAND SECURITY: Allen Ross, Assistant Chief
Counsel

BEFORE: Board Panel: MALPHRUS, Chief Appellate Immigration Judge; MULLANE
and GOODWIN, Appellate Immigration Judges.

MALPHRUS, Chief Appellate Immigration Judge:


    This matter was last before the Board on October 21, 2024, when we
dismissed the Department of Homeland Security’s (“DHS”) interlocutory
appeal from the Immigration Judge’s May 7, 2024, decision, granting the
respondent’s motion to administratively close proceedings.               DHS
subsequently filed a motion to recalendar removal proceedings with the
Immigration Judge, which was denied on November 19, 2024. DHS has filed
an interlocutory appeal from that denial. For the reasons discussed below,
the Board will take jurisdiction over the interlocutory appeal, the appeal will
be sustained, and the record will be remanded.

                          I. PROCEDURAL HISTORY
   On May 6, 2024, the respondent, who is detained in DHS custody, filed
a written motion seeking administrative closure of her removal proceedings
based on her pending application for Temporary Protected Status (“TPS”),
under section 244(a) of the Immigration and Nationality Act (“INA”),

(a) (2018), before the United States Citizenship and
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Immigration Services (“USCIS”). The Immigration Judge granted the
motion by form order, stating that the motion was a joint request by both
parties. DHS filed an interlocutory appeal of the Immigration Judge’s
decision, asserting that no joint motion had been filed, and administrative
closure of the respondent’s removal proceedings was not appropriate. On
October 21, 2024, the Board declined to accept jurisdiction over DHS’
appeal, noting DHS could move to recalendar proceedings with the
Immigration Court. DHS subsequently filed a motion to recalendar
proceedings with the Immigration Judge. On November 19, 2024, the
Immigration Judge denied DHS’ motion for lack of changed circumstances
or good cause. DHS filed an interlocutory appeal of the Immigration Judge’s
denial of its motion to recalendar. This interlocutory appeal is presently
before us. 1

                                   II. DISCUSSION
    Administrative closure is intended to be a docket management tool “used
to temporarily remove a case from an Immigration Judge’s active calendar
or from the Board’s docket.” Matter of W-Y-U-, 

, 17–18
(BIA 2017) (quoting Matter of Avetisyan, 

(BIA 2012)). It is not a form of relief from removal, does not provide an
alien with any immigration status, and is not intended to be used to delay
proceedings indefinitely. See 

 at 18–19.

    Prior to Matter of Avetisyan, administrative closure required agreement
by both parties. Matter of Gutierrez, 

 (BIA 1996)
(citing cases for the proposition that “[a] case may not be administratively
closed if opposed by either of the parties”), overruled by Matter of Avetisyan,

 (BIA 2012). In Matter of Avetisyan, 25 I&N Dec. at
692–94, the Board reversed over two decades of prior precedent and held that
a party’s opposition was not an absolute bar to administrative closure. The


1
    While the Board does not ordinarily entertain interlocutory appeals, we have expressly
held that a party “may seek immediate review of an Immigration Judge’s decision to
administratively close proceedings by filing an interlocutory appeal.” Matter of Avetisyan,

 (BIA 2012). We acknowledge our prior decision declining to
exercise jurisdiction over this matter created uncertainty as to DHS’ ability to seek review
of the grant of administrative closure and what was required for recalendaring in this case.
To avoid confusion, we will exercise our jurisdiction over the present interlocutory appeal
and consider the Immigration Judge’s grant of administrative closure and the denial of
DHS’ motion to recalendar.

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Board went on to hold that the Immigration Judge should instead 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.

Matter of Avetisyan, 

. 2 The Board later clarified that “the
primary consideration . . . 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 W-Y-U-, 

.

    After the Immigration Judge granted administrative closure in this case,
the agency enacted regulations codifying the Matter of Avetisyan factors.

(l)(3)(i), 1003.18(c)(3)(i) (2025); Efficient Case and
Docket Management in Immigration Proceedings, 

,
46789, 46792 (May 29, 2024). The regulations added two additional factors:
“[a]ny requirement that a case be administratively closed in order for a
petition, application, or other action to be filed with, or granted by, DHS”
and “[t]he ICE detention status of the noncitizen.”                 

(l)(3)(i)(C), (H), 1003.18(c)(3)(i)(C), (H). The regulations further
provide that Immigration Judges and the Board should consider all relevant
factors when deciding whether to grant a motion for administrative closure
or recalendaring, while observing that “[n]o single factor is dispositive.”

(l)(3), 1003.18(c)(3); see also Matter of Avetisyan,

. Whether administrative closure was appropriate in this
case is a legal determination the Board reviews de novo. See 

(d)(3)(ii).




2
   At the time, the holding in Matter of Avetisyan, 25 I&N Dec. at 692–96, was a major
change that took the decision regarding whether a case should proceed to a conclusion out
of the hands of the parties and placed it on judges through a multiprong, fact-specific test
that they must apply on a case-by-case basis. Minimal explanation was given as to why
such a significant change was warranted. See generally Gamble v. United States,

, 691 (2019) (emphasizing that “a departure from precedent ‘demands special
justification,’” especially when the departure would overrule numerous major decisions
spanning many years (citation omitted)).
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                    A. Administrative Closure Standard

   The regulations provide a list of factors to consider in determining
whether to administratively close or recalendar a case, but they do not
prescribe the manner in which the factors should be considered in relation to
each other. Although the factors must be considered in the totality and no
one factor is dispositive, the regulations do not require Immigration Judges
and the Board to give each factor equal importance. See 

(l)(3)(i)–(ii), 1003.18(c)(3)(i)–(ii).

    In evaluating when administrative closure is appropriate, it is important
to consider the purpose of administrative closure and the role of Immigration
Judges and the Board within the immigration system. Removal proceedings
are adversarial in nature, and the role of Immigration Judges and the Board
is to adjudicate whether an alien is removable and eligible for relief from
removal in cases brought by DHS. See Matter of W-Y-U-, 

; Matter of Gomez-Beltran, 

 (BIA 2016), aff’d,

 (9th Cir. 2020). The Board and Immigration Judges have
no role in DHS’ exercise of prosecutorial discretion, including its decision to
institute proceedings against an alien and to prosecute those proceedings to
a conclusion. See, e.g., Matter of Quintero, 

(BIA 1982); Matter of Roussis, 

 (BIA 1982); Matter
of Yazdani, 

 (BIA 1991). “Once deportation
proceedings have been initiated by [DHS], the immigration judge may not
review the wisdom of [DHS’] action, but must execute his duty to determine
whether the deportation charge is sustained by the requisite evidence in an
expeditious manner.” Matter of Quintero, 18 I&N Dec. at 350.

     “There is an important public interest in the finality of immigration
proceedings,” Matter of W-Y-U-, 

, and 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.”
INS v. Abudu, 

 (1988). The expectation is that proceedings
initiated by DHS will proceed to a conclusion. Consequently, although
“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,” Matter of Avetisyan, 

, the basis for granting
administrative closure must be related to achieving some foreseeable
resolution to the ongoing proceedings within a reasonably short period of
time. Administrative closure should not be utilized to delay proceedings
indefinitely and must be limited to a temporary period. See Matter of
W-Y-U-, 

 (“An unreasonable delay in the resolution of the
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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.” (citation
omitted)).

    Although Immigration Judges have a general duty to help develop the
record, neither Immigration Judges nor the Board should act in the place of
either of the parties. See Matter of J-F-F-, 

 (A.G. 2006)
(“It is appropriate for Immigration Judges to aid in the development of the
record . . . but the Immigration Judge must not take on the role of advocate.”).
Thus, in considering whether administrative closure is appropriate under the
totality of the circumstances, Immigration Judges and the Board should as an
initial matter strongly consider the views of the parties. See 

(l)(3)(i)(A)–(B), 1003.18(c)(3)(i)(A)–(B).          While a party’s
opposition to administrative closure is not dispositive, Immigration Judges
and the Board should carefully consider the reasons for the party’s
opposition. See 

(l)(3)(i)(B), 1003.18(c)(3)(i)(B). Because
Immigration Judges and the Board have a duty to promptly and fairly bring
removal proceedings to a close, whether there are persuasive reasons for a
case to proceed and be resolved on the merits is the primary consideration in
determining whether administrative closure is appropriate under the totality
of the circumstances.             See 

(l)(3)(i)(B),
1003.18(c)(3)(i)(B); see also Matter of W-Y U-, 

. 3

                      B. Application to These Proceedings

    Turning to DHS’ present interlocutory appeal, we conclude that the grant
of administrative closure was in error and recalendaring these proceedings is
appropriate. Here, DHS asserts, and the record reflects, that it did not join in
the respondent’s motion to administratively close proceedings, and DHS
reiterates on appeal that it opposed administrative closure. The Immigration
Judge, therefore, clearly erred in finding that the motion for administrative
closure was a joint request from both parties. See Matter of R-S-H-, 

, 637 (BIA 2003) (discussing the clear error standard of review for

3
    We recognize that the commentary to the final rule states that “to the extent that the
Board’s holding in Matter of W-Y-U- . . . is inconsistent with the unweighted, ‘totality of
the circumstances’ standard implemented by this rule, Matter of W-Y-U-, 

,
is superseded.” 89 Fed. Reg. at 46753. In the context of administrative closure, “primary
consideration” refers to the initial and important but not overriding consideration. Thus,
in our view, the holding in Matter of W-Y-U- is consistent with the totality of the
circumstances standard.
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factual findings). Consequently, the Immigration Judge erred in granting the
motion in a summary order without further analysis or explanation.

    Further, in considering the respondent’s original motion and applying the
factors articulated in Matter of Avetisyan, 

, and codified
in the regulations, we are unpersuaded that administrative closure was
warranted under the totality of the circumstances. The reason the respondent
sought administrative closure was to await a decision on her pending
application for TPS, arguing in her motion that the “pending immigration
benefit makes any adverse decision on her asylum claim untimely.” The
respondent claimed to be prima facie eligible for TPS, but did not articulate
the anticipated duration of the closure or how approval of her TPS
application would impact the outcome of removal proceedings when the case
is recalendared. DHS opposed administrative closure on the basis that the
respondent’s asylum application could be adjudicated on the merits and
removal proceedings could be completed without any adverse effect on the
pending application for TPS.

    Considering the totality of the circumstances, including whether there is
a persuasive reason for removal proceedings to be resolved on the merits, we
conclude that administrative closure is not warranted. The respondent has an
application for asylum and related relief ripe for adjudication before the
Immigration Judge. The resolution of the respondent’s application for
asylum and related relief, and any direct appeal taken thereof, would
conclude removal proceedings before us. Moreover, TPS is a collateral
benefit that does not impact the outcome of removal proceedings. Although
USCIS maintains initial jurisdiction over the respondent’s application for
TPS, the respondent would remain eligible for TPS even with a final order
of removal. See INA § 244(a)(1)(A), 8 U.S.C. § 1254a(a)(1)(A); 

(a), 1244.7(a) (2025); see also Duarte v. Mayorkas, 

,
1053–54 (5th Cir. 2022) (discussing the relationship between removal orders
and TPS). Further, TPS only serves to temporarily protect recipients from
removal. See Matter of Sosa Ventura, 

 (BIA 2010)
(finding that the grant of TPS only protects the respondent from the execution
of a removal order during a specified period, but that the respondent remains
removable based on the charge of inadmissibility). Thus, the ultimate
outcome of these removal proceedings would be unaffected by any action
taken on the respondent’s application for TPS.

    Moreover, the appropriate outcome in this case is made clearer by the fact
that the respondent is detained, which is an express factor under the
regulations. 

(l)(3)(i)(H), 1003.18(c)(3)(i)(H). In
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Matter of L-N-Y-, 

 (BIA 2020), we held that in
assessing whether there is “good cause” for a continuance based on an
application for collateral relief, Immigration Judges should consider an
alien’s detained status. We further highlighted that “[g]ranting an
indeterminate continuance greatly impacts administrative efficiency in a
typical case, but particularly where . . . the alien is detained.” 

 In the
administrative closure context where there is often uncertainty as to the
duration of the closure, an alien’s detained status is of particular significance
and will generally counsel strongly against a grant of administrative closure.

   Although the respondent’s detained status supports our conclusion that
administrative closure is not warranted in this case, the result here would
have been the same even if the respondent were not detained. A pending
application for TPS generally will not warrant a grant of administrative
closure.

                            III. CONCLUSION
    While Immigration Judges and the Board should consider all relevant
factors when adjudicating motions for administrative closure and
recalendaring, whether there are persuasive reasons for a case to proceed and
be resolved on the merits is the primary consideration. In this respect, we
reaffirm our holding in Matter of W-Y-U-, 

 (BIA 2017).

   For the reasons discussed above, we conclude that administrative closure
was not warranted in this case and will reverse the Immigration Judge’s
denial of DHS’ motion to recalendar proceedings. Accordingly, we will
sustain DHS’ appeal, reinstate these removal proceedings, and remand the
record for further proceedings.

    ORDER: DHS’ appeal is sustained, the November 19, 2024, 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.




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