Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017): Contested Motions to Administratively Close or Recalendar Proceedings

 

 

Introduction: Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017)

On April 18, 2017, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) [PDF version]. In the Matter of W-Y-U-, the Board held that, when evaluating whether to administratively close or calendar immigration proceedings, the Immigration Judge must consider primarily “whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” On this point, the Board clarified its published decision in the Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) [PDF version]. The Board also held that, in considering the appropriateness of administrative closure, an Immigration Judge may not consider whether an alien falls under the enforcement priorities of the Department of Homeland Security (DHS).

Matter of W-Y-U-

In this article, we will examine the facts of the case, the Board's reasoning and decision, and the likely effect of the Matter of W-Y-U- precedent going forward.

Facts of the Case: 27 I&N Dec. at 17

The respondent, a native and citizen of China, entered the United States in 2008. The respondent filed a timely application for asylum and related relief and protection. The respondent sought to have his application for asylum and related relief and protection reviewed in removal proceedings.

In 2015, the Immigration Judge presiding over the proceedings granted an oral motion of the DHS seeking administrative closure of the proceedings. The respondent had opposed the motion and subsequently filed a motion to recalendar the proceedings. The Immigration Judge denied the respondent's motion to recalendar proceedings.

The respondent appealed the Immigration Judge's decision to the BIA. The respondent argued that the administrative closure of his case prevented him from pursuing asylum and related relief and protection from removal.

Discussion of Existing Board Precedent on the Issue: 27 I&N Dec. at 17-18

The Board quoted from its decision in the Matter of Avetisyan, 25 I&N Dec. at 692 (BIA 2012), to explain the concept of administrative closure:

“Administrative closure … is used to temporarily remove a case from an Immigration Judge's active calendar or from the Board's docket.”

The Board explained that administrative closure is a “docket management tool that is used to temporarily pause removal proceedings” (see 25 I&N Dec. at 690, 694). Administrative closure does not provide an alien with immigration status. Either party in an immigration proceeding may move to recalendar a case that has been administratively closed or to reinstate an appeal before the BIA (see 25 I&N Dec. at 695 & n.5).

The Board explained that in Avetisyan it had held that Immigration Judges and the BIA “have the authority to administratively close a case when appropriate, even if a party opposes it.” In Avetsiyan, the Board held that Immigration Judges should consider the following factors in determining whether to grant a request for administrative closure (see 25 I&N dec. at 696):

  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.

At footnote 4 of the Matter of W-Y-U-, the Board noted that the six factors “should be weighed in evaluating a motion to recalendar or reinstate.”

The Board explained that proper consideration of the foregoing factors “prevents a party from keeping a case on an Immigration Court's docket absent a reasoned explanation of justification” for doing so. This followed principles articulated in prior BIA published decisions. One example, in the Matter of Lamus, 25 I&N Dec. 61, 65 (BIA 2009) [PDF version], the Board held that opposition to a motion to a motion to reopen is not dispositive of the motion without considering the merits of the opposition. Similarly, in the Matter of Hashmi, 24 I&N Dec. 785, 791 (BIA 2009) [PDF version], the Board held that “unsupported opposition” to a continuance “does not carry much weight.”

Immigration Judge's Reasoning: 27 I&N Dec. at 18

The Board explained that the Immigration Judge in the instant case had denied the respondent's motion to recalendar proceedings to reserve the Immigration Court's “limited adjudication resources to resolve actual cases in dispute.”

For reasons which we will examine, the Board found that the factors cited by the Immigration Judge in denying the respondent's motion to recalendar proceedings did not support the denial.

Respondent's Interest in Having the Case Resolved Supported Recalendaring: 27 I&N Dec. at 18-19

The Board granted the legitimacy of the Immigration Judge's concerns regarding the allocation of limited resources. However, citing to its published decision in the Matter of C-B-, 25 I&N Dec. 888, 890 (BIA 2012) [PDF version], the Board explained that these concerns “are secondary to a party's interest in having a case resolved on the merits.” Indeed, the Board noted, court resources were not among the six factors it listed in the Matter of Avetisyan for consideration when deciding whether to grant a motion for administrative closure or a motion to recalendar or reconsider. Moreover, in the Matter of Hashmi, 24 I&N Dec. at 793-94, the Board had expressly held that compliance with case completion goals is not a factor that may be considered in determining whether to grant a continuance request.

The Board also disagreed with the Immigration Judge's conclusion that the respondent's application for asylum and related relief and protection did not present “an actual case[] in dispute.” Citing to its decision in the Matter of E-F-H-L-, 26 I&N Dec. 319, 321-23 (BIA 2014) [PDF version], the Board held that an alien in removal proceedings generally has a right to a full evidentiary hearing on applications for relief from persecution (see also 8 C.F.R. 1240.11(c)(3) (2016)). Accordingly, provided that the respondent had properly filed an application for asylum and related relief, the respondent had a right to a hearing on the merits of the claim. The Board noted that “[t]his is not a case where an alien has filed for asylum with no intent to proceed on the application to a resolution.”

DHS's Seeking Administrative Closure Not Dispositive of Whether Case is in Dispute: 27 I&N Dec. at 19

The Board also noted that the fact the DHS sought administrative closure of the removal proceedings “is not dispositive of whether the respondent's case is actually in dispute.” The Board explained that, while Immigration Courts and the Board are responsible for adjudicating whether an alien in proceedings is removable and whether an alien is eligible for relief, such as asylum, neither the Immigration Courts nor the Board has the authority to review the DHS's decision to institute removal proceedings. Whether to bring a specific case involves the exercise of prosecutorial discretion by the DHS. To this effect, the Board cited to its decisions in the Matter of G-N-C-, 22 I&N Dec. 281, 284 (BIA 1998) [PDF version]; and the Matter of Yazdani, 17 I&N Dec. 626, 630 (BIA 1981) [PDF version].

Thus, because DHS alone has discretion whether to institute a removal proceeding, the Board held that it follows that an Immigration Judge cannot review whether an alien falls within the DHS's enforcement priorities, or whether the alien will actually be removed from the United States. In accord with this principle, the Board cited to the Matter of P-C-M-, 20 I&N Dec. 432, 434 (BIA 1991) [PDF version], wherein it held that the likelihood that an alien will be deported is not a factor that Immigration Judges may consider in making a bond determination.

Accordingly, the Board noted that “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” after removal proceedings have been commenced.

Public Interest in Finality of Immigration Proceedings: 27 I&N Dec. at 19-20

The Board quoted from the decision of the Supreme Court of the United States in INS v. Adudu, 485 U.S. 94, 107 (1988) [PDF version]:

“There is a strong 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.”

The Board held that the interest articulated in Adudu “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 in the merits.”

Citing to the decision of the United States Court of Appeals for the Sixth Circuit in Ukpabi v. Mukasey, 525 F.3d 403, 408 (6th Cir. 2008) [PDF version], the Board noted that an unreasonable delay may prevent an alien from “obtaining relief that can provide lawful status.” Conversely, the Board quoted from Ukpabi to note that allowing aliens to remain indefinitely without their cases being resolved may “thwart the operation of statutes providing for removal.”

Clarifying Matter of Avetisyan: 27 I&N Dec. at 20

The Board clarified its decision in the Matter of Avetisyan by holding 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.” The factors from Avetisyan remain precedent for Immigration Judges in conjunction with the clarification in the instant case.

The Board noted that its decision in the instant case is inapplicable to “cases in which the parties jointly agree to administrative closure, recalendaring, or reinstatement.”

Decision and Order: 27 I&N Dec. 20

The Board held that under the circumstances in the instant case, “recalendaring of proceedings is appropriate.” Accordingly, the Board sustained the respondent's appeal, reinstated removal proceedings, and remanded the record for further proceedings.

Conclusion

The Matter of W-Y-U- clarifies the Board's decision in the Matter of Avetisyan. Avetisyan listed the factors that must be considered when one party in immigration proceedings opposes a motion to administratively close proceedings or calendar proceedings. The Matter of W-Y-U- now makes clear that the primary concern must be whether the party opposing calendaring or administrative closure provides a persuasive reason for the case to proceed and be resolved on the merits.

An individual in immigration proceedings should retain an experienced immigration attorney immediately. An attorney will be able to navigate the complicated and often technical issues involved in immigration proceedings, including those addressed in the Matter of W-Y-U-.