Interim Decision #3135 

MATTER OF LOPEZ-BARRIOS 

In Deportation Proceedings 

A-29928921 

Decided by Board May 23, 1990 

(1) The administrative closing procedure may not be used if it is opposed by either party 

to the proceedings. 

(2) If an immigration judge is satisfied that the notice provided to a respondent who 

failed to appear for a scheduled hearing was sufficient, then a hearing in absentia may 

be held, but if the notice was not sufficient, then termination of proceedings, not 

administrative closing, is appropriate. 

CHARGE: 

Orden Act of 1952—Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)1—Entered without inspection 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Pro set 

David M. Dixon 

Appellate Counsel 

Mitchil Bechet 

General Attorney 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

In a decision dated September 14, 1989, an immigration judge 

administratively closed the respondent's case when the respondent 

failed to appear for a scheduled hearing. The Immigration and 

Naturalization Service appealed. The appeal will be sustained and the 

record will be remanded to the immigration judge for further action. 

The decision of the immigration judge which the Service seeks to 

have reviewed is interlocutory in nature. While this Board does not 

ordinarily entertain interlocutory appeals, we shall consider this 

1 We note that the immigration judge granted a motion to withdraw by the 

respondent's former counsel. However, since the address provided by the respondent 

appears to be incorrect or no longer current, this order and all future notices relating to 

this case are to be served on the respondent's former counsel. See 8 C.F.R. g 292.5(a) 

(1990). This will ensure that she will be apprised of the status of the deportation 

proceedings against her should she contact her former counsel again. 

203 
Interim Decision #3135 

interlocutory appeal pursuant to our decision in Matter of Amico, 19 

I&N Dec. 652 (BIA 1988). In its appeal, the Service argues that notices 

of scheduled hearings were sent to the respondent at an address she 

had provided. The Service therefore argues that the immigration judge 

should not have administratively closed the case but rather should 

have held an in absentia hearing pursuant to section 242(b) of the 

Immigration and Nationality Act, 8 U.S.C. § 1252(b) (1988). 

As we stated in Matter of Amico, supra, administrative closing is 

merely an administrative convenience. It allows the removal of cases 

from the immigration judge's calendar in certain circumstances. 

However, it does not result in a final order. Thus, for instance, if it is 

used when a respondent fails to appear for a hearing, the respondent is 

able to avoid an order regarding her deportability. Id. We therefore 

hold that the administrative closing procedure should not be used if it 

is opposed by either party to the proceedings. Accordingly, administrative closing was inappropriate in this case, in the face of the Service's 

opposition to such action. We will therefore remand the record to the 

immigration judge for consideration of the evidence presented and the 

entry of an appropriate order. 

When a respondent fails to appear for a scheduled hearing, the 

Service should be allowed to allege, on the record, that proper notice of 

the hearing was given to the respondent. If it is alleged that notice was 

sent to the last known address of an unrepresented respondent, the 

Service should provide to the court information regarding that 

address, and the basis for its belief that it is the last known address. If 

the immigration judge is satisfied that the notice provided to the 

respondent was in fact sufficient, then a hearing in absentia, in 

accordance with section 242(b) of the Act, may be held. If the notice 

was not sufficient, then termination of proceedings, not administrative 

closing, is appropriate. 

We make it clear that we are not hereby ruling on the merits of the 

Service's evidence of deportability, the adequacy of notice to the 

respondent, or any other factors affecting a finding of deportability or 

the availability of relief in this case. These are issues to be considered 

by the immigration judge at the hearing, following presentation of the 

evidence. The immigration judge will then be in a position to enter an 

appropriate order. 

ORDER: The appeal is sustained and the record is remanded 

to the immigration judge for further action in accordance with the 

foregoing decision. 

204