United States Court of Appeals

For the Eighth Circuit

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No. 15-3281

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Salvador Gonzalez-Vega

lllllllllllllllllllllPetitioner

v.

Loretta E. Lynch, Attorney General of the United States

lllllllllllllllllllllRespondent

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Petition for Review of an Order of the

 Board of Immigration Appeals

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 Submitted: September 20, 2016

 Filed: October 14, 2016

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Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.

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ARNOLD, Circuit Judge.

After an immigration judge denied Salvador Gonzalez-Vega's request for

administrative closure of his immigration proceedings, he asked the Board of

Immigration Appeals to review the IJ's decision and also asked the BIA to exercise

its own independent authority to grant administrative closure. TheBIA upheld the IJ's

decision but did not rule on Gonzalez-Vega's second request, and he appealed. We
affirm the BIA's affirmance of the IJ's determination, but we remand the case to the

BIA to rule on his request for administrative closure.

Gonzalez-Vega is a Mexican citizen who entered the United States in 2004

without authorization. The Department of Homeland Security initiated removal

proceedings in 2012, asserting that he was removable as an alien who was present in

the country without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i).

Gonzalez-Vega conceded that he was removable.

Being ineligible for more prosaic forms of relief from removal like asylum or

cancellation of removal, Gonzalez-Vega requested administrative closure from the

IJ. When an IJ or the BIA grants administrative closure, the alien's removal

proceedings are temporarily removed fromthe IJ's calendar or from the BIA's docket,

and no judgment on the merits is entered. Hernandez v. Holder, 606 F.3d 900, 904

(8th Cir. 2010). The case is simply on hold. The IJ and BIA use this procedural

convenience to control the immigration docket. Administrative closure may be

appropriate, for instance, in anticipation of an event relevant to the immigration

proceedings that the parties cannot control and that may not occur soon. In re

Avetisyan, 25 I. & N. Dec. 688, 692 (BIA 2012).

In support of his request, Gonzalez-Vega explained that his wife had given

birth to his son in the United States in January, 2014, and that this son could sponsor

a visa petition on Gonzalez-Vega's behalf once the son turned 21. He also maintained

that the son would suffer extreme hardship without Gonzalez-Vega's paternal care

and financialsupport; that potential future changes in law and executive policy could

make his removal a lower administrative priority than the removal of other aliens; that

his continued presence in the United States would allow him to support two other

sons living in Mexico; that he has strong ties to the community; that Mexico is too

dangerousto live in; and that he has an inconsequential criminalrecord. The IJ denied

Gonzalez-Vega's request for administrative closure, emphasizing that his infant son

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would not turn 21 within a reasonable time, and the lack of a pending visa application

made the anticipated duration of closure indefinite.

We first consider whether we have jurisdiction. We held in Hernandezthat we

lack jurisdiction to review the denial of a motion for administrative closure because

there was no meaningful standard by which to review that decision. Gonzalez-Vega

maintains that the BIA supplied the missing standard after Hernandez when it

promulgated the following non-exclusive considerations that an IJ and the BIA

should contemplate when confronted with an administrative-closure request: the

reason administrative closure issought, the reason administrative closure is opposed,

the likelihood the other action being pursued outside of removal proceedings will

succeed, the anticipated duration of the closure, the responsibility of either party in

contributing to any current or anticipated delay, and the ultimate outcome of the

removal proceeding once it recommences. See Avetisyan, 25 I. & N. Dec. at 696. 

The government argues that we reaffirmed our holding in Hernandez that

denials of motions for administrative closure are unreviewable when we decided

Diallo v. Holder, 715 F.3d 714, 716 (8th Cir. 2013) over a year after the BIA decided

Avetisyan, meaning that Diallo requires us to reject Gonzalez-Vega's argument. But

nothing in Diallo indicates that we considered Avetisyan's potential effect on

Hernandez; indeed, the court never even mentions Avetisyan nor did the parties raise

the point. "[W]e are generally not bound by a prior panel's implicit resolution of an

issue that was neither raised by the parties nor discussed by the panel." Streu v.

Dormire, 557 F.3d 960, 964 (8th Cir. 2009).

We agree with Gonzalez-Vega that the BIA in Avetisyan supplied a useable

standard for reviewing denials of motions for administrative closure. Balancing

considerations is a common, workaday judicial function, even if in a given case the

balancing can be difficult. We therefore join the other circuits that have held that

circuit courts have jurisdiction to review denials of motions for administrative

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closure, assuming, of course, that other judicial prerequisites (like finality) are

satisfied. See Duruji v. Lynch, 630 F. App'x 589, 592 (6th Cir. 2015) (unpublished);

Santos-Amaya v. Holder, 544 F. App'x 209, 209 (4th Cir. 2013) (unpublished per

curiam).

We review the denial of a motion for administrative closure for abuse of

discretion. See Santos-Amaya, 544 F. App'x at 209. The BIA abuses its discretion

when it makes a decision "without rational explanation, departs from established

policies, invidiously discriminates against a particular race or group, or where the

agency failsto consider all factors presented by the alien or distortsimportant aspects

of the claim." Habchy v. Filip, 552 F.3d 911, 913 (8th Cir. 2009). The BIA must

consider the issues raised and decide in terms sufficient to allow us "to perceive that

it has heard and thought and not merely reacted." Omondi v. Holder, 674 F.3d 793,

800 (8th Cir. 2012).

Since the BIA essentially adopted the IJ's reasoning on this point, we review

the IJ's decision. See Garcia-Gonzalez v. Holder, 737 F.3d 498, 500 (8th Cir. 2013).

We discern no abuse of discretion here. The IJ explained that the Avetisyan

considerations govern and proceeded to hold that the two-decade closure period

weighed heavily against closure, and we agree. The possibility of a successful visa

petition was too remote: No application was pending, nor could one be for almost 21

years. That the IJ weighed some considerations, like the anticipated duration of the

closure, more heavily than Gonzalez-Vega would prefer does not mean that the IJ

abused its discretion. Nor does an IJ have to recite the considerations mechanically

when applying them to the facts. We require only that it be clear from the record that

the IJ had the appropriate considerations in mind and committed no clear error of

judgment in weighing them. We are convinced that the IJ had the Avetisyan

considerations firmly in mind here and committed no clear error of judgment in

weighing them: She recited each of them and referred to Avetisyan several times in

her analysis. We also conclude that the IJ did not abuse its discretion by being

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unmoved by Gonzalez-Vega's arguments in favor of administrative closure, so we

affirm on this point.

Gonzalez-Vega also argues that the BIA abused its discretion by failing to

address his request that it exercise its independent authority to grant administrative

closure. Although the BIA need not write an exegesis on every contention a movant

advances, it must give an explanation specific enough that we can discern and

evaluate its reasoning. Omondi, 674 F.3d at 800. Our reading of the BIA's opinion

reveals that it focuses only on the IJ's decision: Nowhere does the BIA allude to

Gonzalez-Vega's request that it exercise its independent authority. The government

maintains that the BIA implicitly rejected the request for administrative closure

because it considered an argument about imminent immigration reform that

Gonzalez-Vega did not advance before the IJ. Gonzalez-Vega correctly points out,

however, that he made this argument to the IJ and that he broached the subject to the

BIA to support his contention that the IJ erred. So it is unclear to us whether the BIA

heard and thought about Gonzalez-Vega's alternative request. We therefore remand

the matter to the BIA to consider whether Gonzalez-Vega's request "warrants a

favorable exercise of the BIA's discretion." See Clifton v. Holder, 598 F.3d 486, 494

(8th Cir. 2010).

Affirmed in part and remanded in part.

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