Appellate Litigation

On January 31, 2012 the Board of Immigration Appeals (Board) published an important decision on “administrative closure” decisions.

Maris J. Liss, the head of our Appellate Litigation Department, was at the forefront of this positive change of law and shepherded this issue in federal court to the Sixth Circuit Court of Appeals.  Together with the American Immigration Lawyers Association (AILA) national amicus committee, Maris drafted an amicus brief on the issue to the Board of Immigration Appeals, which eventually resulted in a new Board of Appeals precedent decisionMatter of Avetisyan.

Matter of Avetisyan involved a native and citizen of Armenia who entered the United States as a J-1 visa holder and was thereafter placed in removal proceedings based on her failure to maintain the conditions of her visa status. At one of her hearings before the Immigration Judge, the respondent informed him that she was recently married to someone who was in the process of naturalizing and that the couple had recently had a child together. Several hearings later and at the final hearing, the respondent asked that her removal proceedings be “administratively closed” so that her marriage-based visa petition could be adjudicated by the United States and Citizenship and Immigration Services (USCIS). The Immigration Judge administratively closed proceedings over the DHS counsel’s objection. The Board agreed that the Immigration Judge had the authority to administratively close proceedings and also found that the Immigration Judge’s decision to close proceedings was properly exercised.

Notably, the Board offered the following new legal standard for determining whether administrative closure is appropriate in a removal case: “[A]n Immigration Judge or the Board should weigh all relevant factors, including but not limited to: (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 (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.” The Board also reclaimed the province of the EOIR by concluding that the Immigration Court and the Board may administratively close cases even when a party opposes, overruling its own decision from more than 15 years ago (Matter of Gutierrez, 21 I&N Dec. 479 – BIA 1996).

Three important lessons from Matter of Avetisyan are described below:

Matter of Avetisyan upholds the principle of decisional independence. In 1952, Congress enacted the Immigration and Nationality Act, and designated the task of hearing deportation cases to “Immigration Judges” within the Immigration and Naturalization Service (INS). It was not until 1983 when the Attorney General removed Immigration Judges from the INS and placed them into a newly created Executive Office for Immigration Review. The creation of EOIR was significant because it acknowledged the importance of decisional independence to the integrity of the removal process. The principle of independence has since been articulated in the regulations and was highlighted by the Board in Matter of Avetisyan throughout its opinion and also when they remarked “In deciding individual cases, an Immigration Judge must exercise his or her independent judgment and discretion and may take any action consistent with the Act and regulations that is appropriate and necessary for the disposition of such cases.”

Matter of Avetisyan identifies the limitations of prosecutorial discretion. “Prosecutorial discretion” refers to the agency’s decision about whether or not to enforce the full scope of immigration laws against a particular person or group of persons. Prosecutorial discretion is a powerful tool that may be employed by DHS at any stage of the enforcement process. However, once the NTA (immigration charges) have been filed with the EOIR and removal proceedings have commenced, jurisdiction shifts from the DHS to the EOIR and as a practical matter, modifies and in some cases shrinks, the number of prosecutorial tools available to the DHS. The Board in Matter of Avetisyan carefully distinguished the DHS’ prosecutorial discretion authority from the Immigration Judge’s authority to regulate removal proceedings and manage the Court’s calendar, concluding that DHS opposition alone is insufficient to bar an Immigration Judge’s decision to administratively close removal proceedings. In the last year, the DHS has showcased the role of prosecutorial discretion in immigration matters and instructed that ICE officers consider administrative closure in “low priority” cases that present strong equities. Matter of Avetisyan serves as an important reminder that while DHS’ decision to join or initiate a motion to administratively close removal proceedings is an exercise of prosecutorial discretion, the ultimate decision about administrative closure lies within EOIR and must be made in accordance with the law.

Matter of Avetisyan offers an articulate legal standard for future administrative closure decisions. Administrative closure has been long used by the immigration agency, but lacks a definition or standard in the statute or the regulations. The Board’s new standard on administrative closure is consistent with its decisions on motions to reopen and requests for continuances.

 -Maris J. Liss

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