Interim Decision #1701

MATTER OF

Foso AND WONG

In Visa Petition Proceedings
A-14163404
A-14163402
Decided by Board February le, 1967
A civil marriage ceremony contracted pursuant to the Hong Kong Marriage
Ordinance, notwithstanding it was contracted under assumed names, is valid
for immigration purposes where there was no marriage fraud involved, even
though an assumed name was originally adopted by one of the parties to deceive U.S. immigration authorities.
On BEHALF or Pnrrnonsu: Boyd H. Reynolds, Esquire
257 South Spring Street
Los Angeles, Calif. 90012
(Brief filed)
• The cases come forward on appeal from the order of the District
Director, Los Angeles District, dated October 25, 1966 revoking the

visa petitions previously approved by the Service on December 10,

1964 on the ground that the petitioner has failed to establish that a
valid legal relationship exists between the petitioner and his alleged
wife and, in view of such failing, the petitioner has failed to establish
that the minor beneficiary is his legitimate daughter; that the civil
marriage ceremony performed on September 12, 1955 is considered
null and void pursuant to Hong Kong Marriage Ordinance, Chapter
181, Article 28 which relates in part to marriages performed in which
the parties knowingly and wilfully acquiesce in its celebration under
a false name.
The petitioner, a native and citizen of China, 57 years old, who was
admitted for lawful permanent residence on March 27, 1964 under
section 249 of the Immigration and Nationality Act, seeks to classify
the status of the beneficiaries as his wife and daughter, respectively.
The adult female beneficiary is D, native and citizen of China, born
CR 22-9-19 (November 6, 1933). The minor female beneficiary is a
native and citizen of Hong Kong, B.C.C., born June 8, 1956. The

90

Interim Decision #1701
petitioner and the adult beneficiary were married on September 12,
1955 at Hong Kong.
The certificate of marriage issued pursuant to Hong Kong Marriage
Ordinance (Cap. 181) sections 21 and 22, reveals that the petitioner
was married under the assumed name of Cheng Tang Young and his
wife was married under the assumed name of Lee Young Ho. The
birth certificate of the daughter shows her birth was registered as

Young, King Sau.
A communication from the Department of State dated January 24,
1966 sets forth the provisions of the Hong Kong Marriage Ordinance,
Chapter 181, Article 28 (2) which provides in pertinent part that a
marriage shall be null and void if both parties knowingly and wilfully
acquiesce in its celebration under a false name. The communication

states that under the Hong Kong Marriage Ordinance, Article 28, a
marriage ceremony performed with either of the parties to such a
marriage under a false name is considered null and void. The communication further states that she and the petitioner also were married according to Chinese custom on the same day as the civil ceremony
before the Hong Kong Registrar; however, no documentation of this
second ceremony is presently available nor did either the petitioner. or

the principal applicant mention it until the validity of their civil
ceremony became questionable. It is further set forth that the false
identity of Le Young Ho was assumed by the principal applicant in
a fraudulent passport application at the Hong Kong office filed
March 10, 1952.
A communication dated August 3, 1966 from the British Registrar
General, Hong Kong is to the effect that it is not possible for the Registrar of Marriages to give a ruling or decision that any particular
marriage under the Hong Kong Marriage is null and void but that
such a, decision would be left to a court of law. Nevertheless, the Registrar General conferred with one of the Crown Counsel in the Legal
Department and it was agreed on the information to hand, the parties
appeared to have knowingly married each other under the Hong Kong
Marriage Ordinance under false names, and it would appear that such
marriage was null and void by virtue of section 28(2) of the Hong
Kong Marriage Ordinance, Cap. 181. The communication stresses that
this is a personal opinion only. It is clear that this letter from the Registrar General may be disregarded as purely supererogatory.
A sworn statement was taken from the petitioner on June 20, 1966.
He admitted that both he and his wife assumed false identities when

they were civilly married. However, he stated that he considered the
celebration of their marriage later in the afternoon at a. restaurant
a celebration of their marriage according to the Chinese family cus91
32.1-654-69--9

Interim Decision #1701
tom at home; that according to the Chinese way the wedding party
to be held in the village generally ought to be recognized as a complete
wedding ceremony and bind the man and woman as husband and wife;
that the marriage conducted at the Yen King Restaurant was in and
of itself a complete marriage ceremony as followed according to old
Chinese custom and recognized as such in the Chinese community.
The file also contains a sworn statement of the adult beneficiary
executed before an immigration officer at Hong Kong on September 9,
1966 in which the affiant admitted that she used the name Lee Young
Ho to conceal her identity because her family was in trouble with the
Communists and that after her arrival in Hong Kong in 1952 she
continued to use this name. She used this name when she married the
petitioner who was using the name Cheng Tang Young. When their
child, Wong King Sau, was born on June 8, 1956 her husband and
she used their paper name in registering the child's birth. Her husband used the assumed name because he had been helped to go to the
United States by friends under that name and at the time they were
married on September 12, 1955, and when the birth of their child was
registered, she knew her husband's correct name and he knew the wife's
correct name. Following the wedding ceremony, they had a dinner
party at Ying King Restaurant, Hong Kong. She stated that she did
not consider the wedding feast at the Ying King Restaurant a proper
wedding. ceremony. However, because they were married before the
Marriage Registrar and she had lived with her husband and had a
child by him, she knew they were married and he is her husband. She
did not know that being married before the Marriage Registrar under
a false name was wrong and she did not know that they were breaking
the law. However, she feels that she is married to her husband.
In connection with his brief on appeal, counsel submitted a letter
from a Hong Kong firm of solicitors to the effect that section 28 of the

Marriage Ordinance of Hong Kong, Cap. 181, is best explained on
page 778 Halsbury's Laws of England, Vol. 19 which reads:
If a paity is described by a false name and the banns are, in consequence, incorrectly published, the marriage is valid if the wrong name has been given by
mistake, or because the name given has been assumed and is generally accredited,
(Dancer v. Dancer 1948 (2) page 731 All England Report) or without any intention of concealing identity (Chipchase v. Ohipchase 1939 (3) page 895 All
England Report) and even if the false name has been given fraudulently, the
marriage is nevertheless valid if one party marries without the knowledge of
the falsity.

The burden of proof of establishing eligibility under the immigration laws rests upon the petitioner. It is believed that insufficient
evidence has been presented to establish a valid Chine custom
92

,r..

Interim Decision #1701
riage. The issue of the validity of the marriage will be decided upon
the basis of the marriage under the Hong Kong Ordinance.
In order to assist in resolving the question of the validity of the
marriage and the legitimacy of the child, information was requested
from the Library of Congress? Section 7 and 22 of the Marriage Act
(1823) of England are substantially the same as section 28(2) of the
Hong Kong Ordinance in regard to the use of assumed names in marriage. The former provides that a marriage shall be "null and void

to all intents and purposes whatsoever" if the parties knowingly and
willfully intermarry without due publications of banns, prior to which
"the parties must cause to be delivered to the parson their true
Christian names and surnames." Section 28 (2), however, provides that
a marriage shall be null and void if both parties knowingly and

willfully acquiesce in its celebration under a false name. A line of cases
laid down the test (1) whether or not the assumed names were used for
fraudulent purposes and (2) whether or not both parties were cognisant of the fraud and knowingly and willfully entered into the
marriage without due publication?
However, in another series of cases the court upheld the validity of
marriages celebrated under assumed names where there was no element of fraud? The Dancer case was distinguished from the Chip-

chase case because in the former the name which had been assumed by
her mother had been used for 14 years; when the daughter discovered
her true name she revealed this to her intended husband and also to
the vicar who advised her to use the assumed name, for to do otherwise
would only mislead the public. In the Chipehase case it was found
that the party had given her maiden name not because she was known
by that name and to give another name would be misleading, but
because it served to conceal the fact that she was still married and
this fact of concealment of the true situation was considered an

infraction of the statute.
In the instant case the husband had been using his assumed name
since 1929 and the -wife had been using her assumed name since 1953.
The husband confessed his assumed name and identity in June 1963
and his status was adjusted for immigration purposes. The husband
had used an assumed name to make a false claim to United States
citizenship. The wife had used an assumed name since 1953 because
Marriage Under Assumed Names in Hong Kong prepared by Mrs. Ivy Deng.
eng Cline of the Far Eastern Law Division. See Appendix.
Brankland v. Nicholson, (1805) 3 M. & S. 259; Tooth. v. Darrow, (1854) 1 Bee.
& Ad. 371; Small v. Small, (1923) 67 Sol. Jo. 277; Wormald v. Wormald, (1868)
19T. 93
R. v. Billinahurat (1814) 2 M. & S. 250; Olvinchase v. Chinehase. (1939) 2
All E.R. 560 ; Dancer v. Dancer, (1948) All E.R. 731.

93

Interim Decision #1701
of trouble with the Communists. They were both generally known
under their assumed names and the use of another name would be misleading. The cases under section 7 and 22 of the Marriage Act .(1823)
of England show that use of an assumed name per se does not invalidate a marriage celebrated under that name. Rather, the judges have
considered all the relevant factors and all the circumstances surrounding the marriage.
In the case under consideration, the wife had used her assumed
name since her arrival in Hong Kong in 1958 until her marriage in
1955 and she could not have been known in Hong Kong by any other
name. No fraud was involved. Therefore under the authorities, the
marriage must be deemed valid. The child, who did not participate
in the fraud, and to whom fraud could not be imputed, must be held

to be legitimate.
ORDER: It is ordered that the appeals be sustained and that the
visa petitions be approved for immediate relative status.
APPENDIX
MARRIAGE UNDER ASSUMED NAMES IN HONG KONG

When the British Colony of Hong Kong was established, the whole
of English law existing at that time was imported into the colony, subject to its application to local conditions. Later many of the ordinances
enacted by the colonial legislature were also patterned along the lines
of their British counterparts so that British judicial pronouncements
have enjoyed authoritative status in the local courts. In the area of
domestic relations, this has been true.
Sections 7 and 22 of the Marriage Act (1823) of England breathe
substantially the same spirit as section 28(2) of the H.K. Ordinance
in regard to the use of assumed names in marriage. The former provides in clear terms that a marriage shall be "null and void to all intents and purposes whatsoever" if the parties knowingly and wilfully
intermarry without due publications of banns, prior to which "the
parties must cause to be delivered to the parson their true Christian
names andsurnames". Section 28(2), however, provides that a marriage shall be null and void if both parties knowingly and wilfully
acquiesce in its celebration under a false name.
On the interpretation of the English statute, the cases go both ways.
But each case can be distinguished and each stands on its own facts..
The judges have been seen to give maximum deference to the particular merits of each case in point.

94

Interim Decision #1701
In an earlier case, Franklaud v. 117 ieliolson (1805) 3 M. & S. 259, Sir
William Scott laid down the general rule regarding acquired names
in a marriage contract. The example was given that the publication
that A and B were to be married, while in actuality it was C and D,
was a nullity in itself. However, he added that there may be cases
where names acquired by general use and habit may be taken by repute
as the true names of the parties.
In 1847 sections 7 and 22 were subjected to an interpretation in the
case of Orme v. Holloway, 27 Digest 47, 259, where the tests laid down
were 1) whether or not asumed names were used for fraudulent purposes and 2) whether or not both parties were cognizant of the fraud
and knowingly and wilfully entered into the marriage without due
publication.
In Tooth v. Barrow, (MI) 1 Ecc. & Ad. 371, the Lord Justices applied the above tests and held the marriage null and void under section 22 for want of publication. Here the illegitimate daughter of a
woman who had lost her original name and had acquired another was
married under her original name, not as being the daughter of said

mother, but of the mother's brother who represented himself as her
father. It was held under the circumstances, which were surrounded
with fraud, that both parties were cognizant of the fraud and consequently the marriage was null and void.
In Small v. Small, (1923) 67 Sol. Jo. 277, the facts revealed that
the husband was a deserter from 'the Royal Field Artillery and enlisted in a different regiment under another name. In those circumstances, the judges felt that concealment of his real name during his
marriage might well have arisen from the fear of arrest. The marriage
was accordingly void.
Again in TV &maid v. TV ormakl, (1868) 19 L. T. 93, a nullity decree
was granted under S. 22 that there was fraud and cognizance thereof
on the part of both parties. Here the 15 year old daughter of a banker
married her father's butler. They had given a false name for her to
the parson for publication. But during the marriage ceremony when
the clergyman called her name as falsely given, she thereupon gave
her true name and it was so entered by the clergyman. The suit was
filed by the wife's father on the ground of undue publication. The
Court found that both parties were cognizant of the fraud and had in
fact intended a clandestine marriage.
In another series of cases the Court upheld the validity of marriages

celebrated under assumed names where there was no element of fraud.
Thus in R. v. Billiinghurst, (1814) 3 M. & S. 250, a. marriage was celebrated by X whose real name was A. The Court found that X had
95

Interim Decision 4fr1701

been used as his name ever since he arrived at the parish three years
prior to his marriage and he had been known there only by that
assumed name. It found that there was no fraud in this particular
ease.
In 1939 Chipchase v. Chipclunel (1939) 3 All E.R. 560, was decided
on the basis of the above precedent which was subsequently followed
in Dancer v. Dancer, (1948) All E. IL 731, also.
In Chipchase v. Chipchase the question arose of whether the marriage was null and void because, with the knowledge of the parties,
the wife had given a wrong name during the publication of the banns.
She gave her maiden name although she had been married and she
also stated that she was a widow. The learned justices found that as
a matter of fact there was no evidence that her former husband was
dead, although she had not heard from him for more than seven years.
They found that she had given her maiden name, not because she was
known by that name and to give another would be misleading, but
because it served to conceal the fact that she was still married. This
fact of concealment of the true situation was considered an infraction
of the statute.
The facts in Dancer v. Dower can be distinguished from those of
the above case. Here the wife, the daughter of Mr. and Mrs. Knight,
assumed the name of Roberts when she was three years old. At that
time she and her mother began to live with Mr. Roberts and continued
to do so 'for 14 years until he died. She had been brought up as the
daughter of Mr. and Mrs. Roberts and she had used that name in all
her dealings, even after she had discovered the truth when she was
16 years old. She revealed this to her intended husband and also to
the vicar who advised her to use the name of Roberts, for to do otherwise would only mislead the public.
The Court found that she had consented to the use of the name
Roberts not with fraudulent intention or to conceal any fact, but
rather in order to avoid any concealment. However, in the Ckipchase
case, the wife had used her maiden name to conceal her true identity
and the fact that she was still married.
The above cases show that under sections 7 and 22 of the Act, use
of an assumed name per se does not invalidate a marriage celebrated
under that name. Rather, the judges have considered all the relevant
factors and all the circumstances surrounding the marriage.
In the case before us, the parties were married in Hong Kong under
assumed names in 1955. The husband had used an assumed name in
1929 under a false claim to United States citizenship. It must be
assumed that from 1929 until 1955 when he married, he had used that
assumed name and hence had become generally known by that name
since.
96

Interim Decision 4t1701
In Dancer v. Dancer the assumed. name used at the time of the marriage had been one by which the wife had been known and accredited so
that to do otherwise, i.e. use her original name, would only he misleading. Thus, if the petitioner had been using his assumed name throughout 1929-1955, but had resorted to his original name in 1955 on the
occasion of his marriage, this would have been misleading and would
have amounted to concealment of identity under the Clapehase ruling.

Here the Court had shown that the use of the wife's original maiden
name (which had presumably fallen into misuse) in her second marriage 'amounted to concealment of identity with fraudulent intent.
While the assumption of another name for immigration purposes
may be quite irrelevant to such assumption in a subsequent marriage
situation, the case might fall within Small v. Small. Here the husband

had used 'an assumed name initially in order to conceal his identity as
a deserter and hence to avoid arrest, so that a continued use of that
assumed name in marriage was necessary to conceal his true identity.
It seems that the petitioner in the present case had used an assumed
name to make a false claim to United States citizenship. Had he committed an offense to which he must cover up for by the continued use
of his assumed name? It is suggested that Small v. Small can be distinguished from the present case. The petitioner to date had confessed

his fraud and the situation had been properly rectified and his status
adjusted to that of permanent resident. The offences committed in both
cases perhaps stand on a difference of degree as well as kind. It is
suggested that the adjustment of his status operates retroactively to
rectify the original fraud. The question then becomes one of whether
or not his assumed name was used for the purpose of concealing his
identity at the time of the marriage. If for 26 years he had been known
by that assumed name, then it could be said that he had acquired a
prescriptive right to it. The same could be said of Dancer v. Dancer

where through long usage and accreditation an assumed name can
validly be used in a marriage, for to do otherwise would only result in
concealment of identity to mislead the public.
Concerning the case of the petitioner's wife, she had used a name
which she assumed in 1953 when she left the Chinese mainland "because of trouble with the Communists". If since then she had used her

assumed name and used it again in her marriage to the petitioner in
then from 1953-1955 during her period of residence in Hong
Kong, she must have been known by that name. If so, on an applica-

1965,

tion of the above authorities, it would seem that a reversal to her
original name during marriage would only result in concealment of
her identity. Thus in R. v. Billinghurst, the husband's assumed name
was held to be sufficient to validate his marriage because in that parish

97

Interim Decision #1701
he had not been known by any other name since he had first joined
the parish three years prior to his marriage. Likewise, if the petitioner's wife had used her assumed name since her arrival in Hong Kong
in 1953 until her marriage in 1955, she could not have been known
by any other name.
If the application of the above authorities is correct, then the marriage must be held valid and accordingly, the child legitimate.

98


Interim Decision #1357

Marl=
Application for

OF BOLKEAU

PERMISSION TO REAPPLY

A-15207589

Decided by Acting Regional Commissioner June 1, 1964
Permission to reapply for admission, pursuant to section 212(a) (17) of the
Immigration and Nationality Act as a crewman following deportation in 1983
is granted a bona fide alien crewman who has been sailing to and from the
'United States constantly since 1961 and who during that time never abandoned
his calling as a crewman or worked ashore while in the United States.

The application was denied by the District Director, Miami, Florida,
on April 29, 1961. It is now considered on appeal.
The applicant is a 24-year-old native of Haiti. He was deported
from the United States on September 19, 1963. He had arrived in.
the United States as a crewman on a. vessel and had been given conditional permission to land. The vessel was going into dry dock and
the steamship company operating the vessel sought to return 16,
Haitian crewmen to Haiti. There were 18 of the Haitians including
the applicant, who objected to being returned to Haiti because of
political and economic conditions there. An Immigration Officer, upon.
being advised by the applicant that he would not voluntarily return to
Haiti, revoked his conditional permit to land as a crewman and
ordered the master of the vessel to deport him from the United States.
pursuant to section 252 (b) of the Immigration and Nationality Act.,
Deportation followed.
The District Director has denied the application for the following
reasons:
You are not a bona fide non-immigrant in that at the time of the revocation of
your conditional landing permit you told an Officer of this Service that you would
not return to Haiti, your native country, and you have not established that you
have an unrelinouished, legal domicile in any other country.

Section 101(a) (15) (D) of the Immigration and Nationality Act
defines a nonimmigrant crewman as follows:
• * * an alien crewman serving in good faith as such in any capacity required
for normal operation and service on board a vessel (other than a fishing vessel

622

Interim Decision #1357
home port or an operating base in the United States) or aircraft,
who intends to land temporarily and solely in pursuit of his calling as a crewman
having its

and to depart from the United Staten with the vessel or aircraft on which he

arrived or some other vessel or aircraft;
Notice is taken of the fact that crewmen on vessels engage in a life
at sea, living aboard the vessels and that a residence or domicile may
be lacking while they are engaged in that occupation. The applicant
has been sailing to and from the United States constantly since 1961.
There is no evidence of record that he ever abandoned his calling as a
crewman or worked ashore while in the United States. He now seeks
permission to reapply for temporary entry as a crewman when his
ship is in the ports of the United States. It is found that the applicant is a bona fide crewman and that permission should be granted to
him to reapply for admission. The appeal will therefore be sustained.
ORDER: The decision of the District Director of Miami, Florida,
is reversed and the application is granted_

623


Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

Matter of CASTRO-TUM, Respondent
Decided by Attorney General May 17, 2018
U.S. Department of Justice
Office of the Attorney General
(1) Immigration judges and the Board do not have the general authority to suspend
indefinitely immigration proceedings by administrative closure. To the extent the
Board’s decisions in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of
W-Y-U-, 27 I&N Dec. 17 (BIA 2017), are inconsistent with this conclusion, those
decisions are overruled.
(2) Immigration judges and the Board may only administratively close a case where a
previous regulation or a previous judicially approved settlement expressly authorizes
such an action.
(3) Neither 8 C.F.R. § 1003.10(b) nor 8 C.F.R. § 1003.1(d)(1)(ii) confers the authority to
grant administrative closure. Grants of general authority to take measures “appropriate
and necessary for the disposition of . . . cases” would not ordinarily include the authority
to suspend cases indefinitely. Additionally, 8 C.F.R. § 1240.1(a)(1), which authorizes
immigration judges to take actions that “may be appropriate” in removal proceedings,
and 8 C.F.R. § 1240.1(c), which empowers immigration judges to “otherwise regulate
the course of the hearing,” do not entail an authority to grant indefinite suspensions.
Finally, regulations empowering the Chief Immigration Judge and the Chairman of the
Board to manage dockets—8 C.F.R. § 1003.9(b)(1) and 8 C.F.R. § 1003.1(a)(2)(i)(A)—
grant no express authority to administratively close cases, and cannot reasonably be
interpreted to implicitly delegate such authority.
(4) Under the Immigration and Nationality Act, the Department of Homeland Security has
the exclusive authority to decide whether and when to initiate proceedings. Once the
Department of Homeland Security initiates proceedings, immigration judges and the
Board must proceed “expeditious[ly]” to resolve the case. 8 C.F.R. § 1003.12.
(5) For cases that truly warrant a brief pause, the regulations expressly provide for
continuances. 8 C.F.R. § 1003.29.
(6) The Immigration and Nationality Act unambiguously states that, with respect to in
absentia proceedings, so long as the Department of Homeland Security adequately
alleges that it provided legally sufficient written notice to an alien, the alien “shall be
ordered removed in absentia if [the Department of Homeland Security] establishes by
271

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

clear, unequivocal, and convincing evidence that the written notice was so provided and
that the alien is removable.” INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A). The
Immigration and Nationality Act thus imposes an obligation to proceed expeditiously
to determine whether the requisite evidence supports the removal charge.
(7) Where a case has been administratively closed without the requisite authority, the
immigration judge or the Board, as appropriate, shall recalendar the case on the motion
of either party.

BEFORE THE ATTORNEY GENERAL
On January 4, 2018, I directed the Board of Immigration Appeals
(“Board”) to refer for my review its decision in this matter, see 8 C.F.R. §
1003.1(h)(1)(i), and I invited the parties and any interested amici to submit
briefs addressing questions relevant to that certification. Matter of CastroTum, 27 I&N Dec. 187 (A.G. 2018).
For the reasons set forth in the accompanying opinion, I affirm the
Board’s order and remand for further proceedings. I hold that immigration
judges and the Board do not have the general authority to suspend
indefinitely immigration proceedings by administrative closure.
Accordingly, immigration judges and the Board may only administratively
close a case where a previous regulation or a previous judicially approved
settlement expressly authorizes such an action. Where a case has been
administratively closed without such authority, the immigration judge or the
Board, as appropriate, shall recalendar the case on the motion of either party.
I overrule Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), Matter of WY-U-, 27 I&N Dec. 17 (BIA 2017), and any other Board precedent, to the
extent those decisions are inconsistent with this opinion.

Matter of Castro-Tum
In recent years, immigration judges and the Board have increasingly
ordered administrative closure to remove a large number of cases from their
dockets. The Board has described the practice as “a docket management tool
that is used to temporarily pause removal proceedings,” Matter of W-Y-U-,
27 I&N Dec. 17, 18 (BIA 2017), and “remove a case from an Immigration
Judge’s active calendar or from the Board’s docket.” Matter of Avetisyan,
25 I&N Dec. 688, 692 (BIA 2012).
Although described as a temporary suspension, administrative closure is
effectively permanent in most instances. Unless a party “move[s] to
recalendar [an administratively closed case] before the Immigration Court . .
. or to reinstate the appeal before the Board,” id., the case remains indefinitely
272

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

suspended without a final resolution. Statistics supplied by the Executive
Office for Immigration Review (“EOIR”) demonstrate that effect.
Since 1980, immigration judges have recalendared less than a third of
administratively closed cases. Because the case comes off the active docket,
the immigration judge no longer tracks it, and EOIR does not count the case
as active in assessing backlogs in immigration proceedings. See, e.g.,
Memorandum for All Immigration Judges, from Brian M. O’Leary, Chief
Immigration Judge, EOIR, Re: Operating Policies and Procedures
Memorandum 13-01: Continuances and Administrative Closure at 2–3 (Mar.
7, 2013) (“OPPM 13-01”). Administratively closed cases are also difficult
to recalendar. The Department of Homeland Security (“DHS”) may not
know when the reason for the suspension (such as the pendency of a
collateral proceeding) has been resolved. Even where DHS moves to
recalendar, the Board has imposed the burden of persuasion on the movant.
W-Y-U-, 27 I&N Dec. at 18 & n.4. And the alien respondent in most cases
has few incentives to seek to recalendar because “as a general matter, every
delay works to the advantage of the deportable alien who wishes merely to
remain in the United States.” INS v. Doherty, 502 U.S. 314, 323 (1992).
The practice of administrative closure has grown dramatically as the
Board has made administrative closure easier to obtain. Statistics maintained
by EOIR reveal that over three decades, from EOIR Fiscal Year 1980 to
Fiscal Year 2011, 283,366 cases were administratively closed. But in a mere
six years, from October 1, 2011 through September 30, 2017, immigration
judges and the Board ordered administrative closure in 215,285 additional
cases, nearly doubling the total number of cases subjected to administrative
closure.
This sharp increase tracks changes in Board precedent. For decades, the
immigration judge would grant administrative closure only if both parties
agreed. In its 2012 Avetisyan decision, however, the Board discarded that
principle and authorized administrative closure even over a party’s objection.
25 I&N Dec. at 694, 696. After the Avetisyan test proved unwieldy, the
Board recently “clarif[ied]” that the deciding factor should be “whether the
party opposing administrative closure has provided a persuasive reason for
the case to proceed and be resolved on the merits.” W-Y-U-, 27 I&N Dec. at
20 (emphasis added).
This certified case illustrates but one example of how administrative
closure encumbers the fair and efficient administration of immigration cases.
The respondent entered this country illegally in 2014 and was immediately
detained. As an unaccompanied minor, he was served with a Notice to
Appear and released to a relative after providing the address where they
would reside. Despite several efforts to notify the respondent of his hearing
dates, he repeatedly failed to appear. The Immigration Judge nonetheless
273

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

continued this case four times and finally ordered the case administratively
closed on the ground that DHS had not shown it had a sufficiently reliable
address to provide adequate notice.
On appeal, the Board vacated the Immigration Judge’s administrative
closure order and remanded. DHS represents that this certified case is one
of nearly 200 decisions between April 2017 and December 2017 in which an
immigration judge either ordered administrative closure or refused to
recalendar an administratively closed case over DHS’s objection. Brief for
DHS at 10–11, Castro-Tum, 27 I&N Dec. 187 (A.G. 2018).
For the reasons stated below, I affirm the Board’s November 27, 2017
order and hold that there is no general authority for administrative closure.
Immigration judges exercise only the authority provided by statute or
delegated by the Attorney General. Congress has never authorized
administrative closures in a statute, and Department of Justice regulations
only permit administrative closure in specific categories of cases. The
Attorney General has never delegated the general authority, and I decline to
do so now. Cases that have been administratively closed absent a specific
authorizing regulatory provision or judicially approved settlement shall be
recalendared upon motion of either party. I overrule all Board precedents
inconsistent with this opinion and remand for further proceedings.

I.
I begin with the history of administrative closure. Although no statute
delegates to immigration judges or the Board the authority to order
administrative closure, they have employed the practice to halt immigration
proceedings indefinitely since at least the early 1980s. During that time,
some regulations have authorized or required administrative closure, but only
in limited circumstances.
A.
In 1984, the Chief Immigration Judge instructed immigration judges to
consider administrative closure as one means of addressing the “recurring
problem” of respondents’ failure to appear at hearings. Memorandum for All
Immigration Judges, from William R. Robie, Chief Immigration Judge,
EOIR, Re: Operating Policy and Procedure 84-2: Cases in Which
Respondents/Applicants Fail to Appear for Hearing at 1–2 (Mar. 7, 1984).
The Chief Immigration Judge did not identify any basis for this authority.
Nonetheless, immigration judges and the Board soon employed
administrative closure in all types of removal proceedings. By 1988, the
274

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

Board described the practice as an “administrative convenience.” Matter of
Amico, 19 I&N Dec. 652, 654 n.1 (BIA 1988).
Between 1988 and 2012, Board precedent held that an immigration judge
could grant administrative closure only where both parties supported the
request. See, e.g., Matter of Lopez-Barrios, 20 I&N Dec. 203, 204 (BIA
1990); Matter of Gutierrez-Lopez, 21 I&N Dec. 479, 480 (BIA 1996). These
decisions again assumed without explanation that immigration judges and
the Board possessed this general authority.
In 2012, Avetisyan significantly expanded the practice, holding for the
first time that an immigration judge could administratively close a case over
the objection of one party. 25 I&N Dec. at 694. The Board premised this
authority on the immigration judge’s power to “regulate the course of the
hearing” and to take any action that is “appropriate and necessary for the
disposition of such cases.” Id. at 691 (citing 8 C.F.R. §§ 1003.10(b) &
1240.1(a)(1)(iv), (c)). The Board specified that an immigration judge
considering a motion for administrative closure over one party’s objection
should consider the following six 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 [relief] 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.
Id. at 696.
Recently, in W-Y-U-, the Board “clarif[ied]” the six-factor Avetisyan test
and held that the “primary consideration for an Immigration Judge” in
determining whether to administratively close a case over a party’s objection
is “whether the party opposing administrative closure has provided a
persuasive reason for the case to proceed and be resolved on the merits.” 27
I&N Dec. at 20 & n.5. The Board also concluded that, after a case has been
administratively closed, the party moving to have the case recalendared must
likewise show a “persuasive reason” to do so. Id. at 18 & n.4, 20.
Within the last few years, both the Chief Immigration Judge and DHS
issued policy memoranda promoting administrative closure. In 2013, the
Chief Immigration Judge instructed immigration judges that
“[a]dministrative closure is a legitimate method of removing a case from the
court’s active docket, and preserving limited adjudicative resources.” OPPM
13-01 at 2; see also Memorandum for All Immigration Judges, from Brian
275

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

M. O’Leary, Chief Immigration Judge, EOIR, Re: Operating Policies and
Procedures Memorandum 15-01: Hearing Procedures for Cases Covered by
New DHS Priorities and Initiatives at 3 (Apr. 6, 2015) (“OPPM 15-01”)
(“Judges are encouraged to use the docketing tools available to them to
ensure the fair and timely resolution of cases before them. That includes
continuances, termination[,] and administrative closure in appropriate
cases.”).
From 2011 to early 2017, DHS used administrative closure as a way to
decline to prosecute low priority cases without formally terminating them.
See Memorandum for All Chief Counsel, Office of the Principal Legal
Advisor, from Peter S. Vincent, Principal Legal Advisor, U.S. Immigration
and Customs Enforcement, Re: Case-by-Case Review of Incoming and
Certain Pending Cases at 2 (Nov. 17, 2011) (identifying administrative
closure as a mechanism for exercising prosecutorial discretion);
Memorandum for Office of the Principal Legal Advisor Attorneys, from Riah
Ramlogan, Acting Principal Legal Advisor, U.S. Immigration and Customs
Enforcement, Re: Guidance Regarding Cases Pending Before EOIR
Impacted by Secretary Johnson’s Memorandum entitled Policies for the
Apprehension, Detention and Removal of Undocumented Immigrants at 2
(Apr. 6, 2015) (directing DHS attorneys to “generally seek administrative
closure or dismissal of cases [DHS] determines are not priorities”). Last
year, DHS issued revised guidance making clear that “[e]xcept as specifically
noted . . . , [DHS] no longer will exempt classes or categories of removable
aliens from potential enforcement.” Memorandum for Kevin McAleenan,
Acting Commissioner, U.S. Customs and Border Protection, et al., from John
Kelly, Secretary of Homeland Security, Re: Enforcement of the Immigration
Laws to Serve the National Interest at 2 (Feb. 20, 2017).
B.
Until 1998, Department of Justice regulations did not mention
administrative closure. Over the next several years, the Attorney General—
through EOIR and the Immigration and Naturalization Service (“INS”)—
issued a series of regulations that authorized or mandated administrative
closure, but only in a defined set of cases. None of these regulations
delegated general authority to authorize administrative closure.
In 1999, the Attorney General promulgated regulations to implement a
settlement agreement providing that removal proceedings for certain
Guatemalan and Salvadoran nationals would be administratively closed or
continued until they “had the opportunity to effectuate [their] rights under
[the] agreement.” American Baptist Churches v. Thornburgh, 760 F. Supp.
276

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

796, 805 (N.D. Cal. 1991); see 8 C.F.R. §§ 1240.62(b)(1)(i), (2)(iii),
1240.70(f)–(h). 1
Similarly, between 1998 and 2003, the Department promulgated
regulations requiring administrative closure in certain cases where aliens
pursue statutory procedures to avoid removal. In 1998, Department
regulations mandated administrative closure of removal proceedings
involving certain Nicaraguan or Cuban nationals. See 8 C.F.R. §
1245.13(d)(3)(i) (stating that immigration judges or the Board “shall, upon
request of the alien and with the concurrence of [DHS], administratively
close the proceedings, or continue indefinitely the motion [to reopen the
proceedings], to allow the alien to file [an] application” for adjustment of
status). 2
Regulations issued in 1999 likewise require administrative closure in
cases involving specified Haitian nationals in removal proceedings. E.g., id.
§ 1245.15(p)(4)(i) (mandating administrative closure for any Haitian
national who seeks to file an application for adjustment of status and
“appears to be eligible” for such relief, if DHS “concur[s]” in administrative
closure). And regulations issued in 2003 authorize certain nationals of
Vietnam, Cambodia, and Laos to move for administrative closure pending
their applications for adjustment of status, but prevent the immigration judge
or the Board from “defer[ring] or dismiss[ing] the proceeding” without
DHS’s consent. Id. § 1245.21(c).
In 2000, the Legal Immigration Family Equity (“LIFE”) Act authorized
the spouses and children of permanent residents to live and work in the
United States while waiting to obtain “V nonimmigrant” status. Pub. L. No.
106-553, tit. XI, 114 Stat. 2762, 2762A-142. EOIR’s 2001 implementing
regulation provides that eligible aliens “should request before the
immigration judge or the Board of Immigration Appeals . . . that the
proceedings be administratively closed . . . in order to allow the alien to
pursue an application for V nonimmigrant status.” 8 C.F.R. § 1214.3. The
immigration judge or the Board “shall administratively close the proceeding”
if the alien “appears eligible for V nonimmigrant status.” Id.
Another 2000 statute, the Victims of Trafficking and Violence Prevention
Act, allows victims of human trafficking to obtain immigration relief through
1

The Department of Justice also agreed to a settlement agreement in Barahona-Gomez v.
Ashcroft, 243 F. Supp. 2d 1029 (N.D. Cal. 2002), which required immigration judges and
the Board to administratively close class members’ cases. Id. at 1035–36. EOIR’s
regulations do not address this agreement.
2
The regulations further instructed immigration judges or the Board to “terminate[]” the
case if the application for adjustment of status is granted, 8 C.F.R. § 1245.13(l), and to
“recalendar” the case upon a motion by DHS if the application is denied, id. §
1245.13(m)(1)(ii).
277

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

the “T nonimmigrant” category. Pub. L. No. 106-386, § 107, 114 Stat. 1464,
1474–1480. EOIR’s 2002 implementing regulation provides that “a victim
of a severe form of trafficking” who intends to apply for T nonimmigrant
status may, “[w]ith the concurrence of [DHS] counsel . . . request that
[removal] proceedings be administratively closed . . . in order to allow the
alien to pursue an application for T nonimmigrant status.” 8 C.F.R. §
1214.2(a). Furthermore, “[i]f the alien appears eligible for T nonimmigrant
status, the immigration judge or the Board . . . may grant such a request to
administratively close the proceeding.” Id. 3
In sum, these regulations limit administrative closure authority to specific
categories of cases, but do not delegate the general authority to authorize
administrative closure.

II.
A.
In this case, an immigration judge ordered administrative closure over
DHS’s objection. The respondent, a citizen of Guatemala, entered the United
States around June 26, 2014, when he was seventeen years old. The U.S.
Border Patrol apprehended him on that day. He provided the Border Patrol
with the United States address where he planned to live with his sponsor,
who was his brother-in-law.
DHS designated the respondent an
unaccompanied alien child and placed him in the custody of the Department

3

After INS’s functions transferred to DHS, most of the regulations discussed in this
subsection were duplicated to apply to both the Department of Justice and DHS. E.g.,
Aliens and Nationality; Homeland Security; Reorganization of Regulations, 68 Fed. Reg.
9824, 9836 (Feb. 28, 2003). But some regulations under the LIFE Act relating to
administrative closure appear applicable only to DHS, since they were not recodified as
EOIR regulations. E.g., 8 C.F.R. § 245a.12(b)(1)–(2) (mandating administrative closure
under certain circumstances pending the filing of a LIFE Legalization application). There
is also a 2013 DHS regulation discussing administrative closure that has no corollary in
Department of Justice regulations. It provides that an alien whose case is administratively
closed may be eligible for a provisional unlawful presence waiver, which may streamline
the immigration process for spouses or immediate relatives of U.S. citizens who must
process their entry through a U.S. consulate or embassy abroad. 8 C.F.R. § 212.7(e)(4)(iii).
If the case is recalendared, however, eligibility disappears. Id. Regulations that apply only
to DHS do not provide authorization for an immigration judge or the Board to
administratively close or terminate an immigration proceeding.
278

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

of Health and Human Services’ Office of Refugee Resettlement (“HHSORR”). 4
On June 28, 2014, DHS commenced removal proceedings by personally
serving the respondent with a Notice to Appear. The notice reflected the
mailing address that he had provided to the Border Patrol at the time of his
apprehension and informed him of his responsibility to update his mailing
address if it changed. The notice also ordered the respondent to appear before
an immigration judge at a specified address on “a date to be set at a time to
be set.”
On August 20, 2014, HHS-ORR released the respondent to the custody
of his brother-in-law. Before release, HHS-ORR must confirm the child’s
future address. Office of Refugee Resettlement, Sponsor Handbook at 7
(Rev.
May
31,
2017)
https://www.acf.hhs.gov/sites/default/files/orr/5_31_17_sponsor_english_h
andbook_003.pdf. Furthermore, the sponsor must agree to ensure the child’s
attendance at future immigration proceedings and receives a “Verification of
Release Form” listing the address where the sponsor and child will reside.
This form constitutes evidence that the sponsor is “housing the minor at the
address reflected on the form.” Id. at 8. Here, the respondent identified his
future address as the same address given to the Border Patrol upon his
apprehension. HHS-ORR’s Release Notification confirmed that “the
[r]espondent and [s]ponsor w[e]re notified that they must inform [the]
Immigration Court directly of any further change of address.”

4

An unaccompanied alien child is a child who has no lawful immigration status in the
United States, has not attained eighteen years of age, and has no parent or legal guardian
in the United States, or no parent or guardian in the United States available to provide care
and physical custody. See 6 U.S.C. § 279(g)(2); 8 U.S.C. § 1232(g). The respondent
entered the United States alone and stated that he was born on January 10, 1997; based on
that birthdate, he entered the United States prior to his eighteenth birthday, and DHS
designated him an unaccompanied alien child. An alien who does not meet the statutory
definition of an unaccompanied alien child is not entitled to that status. See Memorandum
for James R. McHenry III, Acting Director, EOIR, from Jean King, General Counsel, EOIR,
Re: Legal Opinion re: EOIR’s Authority to Interpret the Term Unaccompanied Alien Child
for Purposes of Applying Certain Provisions of TVPRA at 6–9 (Sept. 19, 2017); cf. 8 U.S.C.
§ 1232(c)(2)(B) (individuals previously designated as unaccompanied alien children may
be transferred to DHS custody once they “reach[] 18 years of age”). It is unclear whether
the respondent’s brother-in-law was his legal guardian, such that the respondent would
have ceased to qualify as an unaccompanied alien when his brother-in-law assumed
custody on August 20, 2014. At a minimum, however, the respondent ceased to qualify as
an unaccompanied alien child on January 10, 2015, his eighteenth birthday, two days after
his first hearing date.
279

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

On November 26, 2014, the Immigration Judge mailed the first Notice of
Hearing to the respondent at that address. The respondent did not appear.
The Immigration Judge scheduled four more hearings. Before each one, the
Immigration Judge mailed a Notice of Hearing to this same address. The
U.S. Postal Service did not return any of the notices as undeliverable. The
respondent, however, did not appear at any hearing.
Nonetheless, at each of the four hearings, the Immigration Judge declined
to proceed in absentia. At the respondent’s first hearing, on January 8, 2015,
the Immigration Judge cited the respondent’s failure to appear as the basis
for granting a continuance. 5 At the second hearing, on April 2, 2015, the
Immigration Judge again granted a continuance, recording the same ground.
At the third hearing, on October 8, 2015, the Immigration Judge granted
another continuance, this time on the ground that DHS was not available for
the hearing.
At the respondent’s fourth hearing, on January 14, 2016, the Immigration
Judge considered the respondent’s case along with others involving
unaccompanied alien children. The Immigration Judge expressed concerns
about the adequacy of the hearing notices in these cases, because in some
other cases, the notices had been returned to sender. After DHS requested
more time to identify correct addresses in the cases that involved returned
notices, the Immigration Judge granted continuances across the board, and
later explained that this was his practice whenever an unaccompanied alien
child fails to appear.
At the respondent’s fifth hearing, on April 18, 2016, the Immigration
Judge ordered administrative closure of the respondent’s case and of ten
other cases in which the respondents had repeatedly failed to appear. The
Immigration Judge stated that he did not view HHS-ORR addresses as
reliable and would not proceed in absentia unless the government provided
“further documentation . . . as to how that address was secured, who
furnished it, who is verifying it.” In the respondent’s case, DHS
demonstrated that HHS-ORR had obtained the relevant address from the
respondent in multiple forms, and provided additional proof that the mailing
address did not contain errors. Nonetheless, the Immigration Judge ordered
the case administratively closed.
On November 27, 2017, the Board vacated the order and remanded with
a direction to calendar a new hearing and to proceed in absentia if the
5

Immigration court dockets include codes reflecting the reason for adjournment associated
with each hearing date. See EOIR, The 180-day Asylum EAD Clock Notice (May 9, 2017)
(including
codes
effective
January
30,
2015),
https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20As
ylum/Asylum/Asylum_Clock_Joint_Notice_-_revised_05-10-2017.pdf.
280

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

respondent again did not appear. The Board noted that when a respondent
fails to appear, section 240(b)(5)(A) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1229a(b)(5)(A), requires the immigration judge to order
removal in absentia if DHS clearly establishes removability and the adequacy
of the notice. The Board held that the Immigration Judge had erred by
ordering the case administratively closed based on purportedly deficient
notice. Instead, the Board held, notice was adequate because DHS had
personally served the respondent with the Notice to Appear and sent the
Notices of Hearing to the address listed in the respondent’s HHS-ORR
Release Notification. The Board explained that the Immigration Judge’s
concerns about how HHS-ORR obtains addresses failed to assess each case
“on its own particular circumstances and facts,” and failed to presume that
officials “properly discharged their official duties.”
B.
On January 4, 2018, I certified this case for my review and stayed the
Board’s decision pending that review. I requested briefing from the parties
and any interested amici on points relevant to the disposition of this case,
including (1) whether immigration judges or the Board have the authority to
order administrative closure; (2) whether I should delegate or withdraw such
authority; (3) whether administrative closure is or should be different from
other docket management devices; and (4) if immigration judges or the Board
lack the authority to order administrative closure, what actions should be
taken regarding cases that are already administratively closed. Castro-Tum,
27 I&N Dec. at 187.
My authority to certify this case and to resolve these issues through
adjudication is well-established. Under the INA, “[t]he Attorney General
enjoys broad powers with respect to ‘the administration and enforcement of
[the INA itself] and all other laws relating to the immigration and
naturalization of aliens.’” Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 279
(4th Cir. 2004) (quoting INA § 103(a)(1), 8 U.S.C. § 1103(a)(1) (2000));
Matter of D-J-, 23 I&N Dec. 572, 573–74 & n.2 (A.G. 2003). The INA
further grants me the authority to “establish such regulations, . . . issue such
instructions, review such administrative determinations in immigration
proceedings, delegate such authority, and perform such other acts as the
Attorney General determines to be necessary for carrying out” the duty to
oversee all law related to the immigration and naturalization of aliens. INA
§ 103(g)(2), 8 U.S.C. § 1103(g)(2). That authority includes the power to
certify Board decisions for my review. 8 C.F.R. § 1003.1(h)(1) (describing
the certification procedure).
281

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

When exercising my authority to oversee immigration law, I may choose
between rulemaking or adjudication. “[T]he choice made between
proceeding by general rule or by individual, ad hoc litigation is one that lies
primarily in the informed discretion of the administrative agency.” SEC v.
Chenery Corp., 332 U.S. 194, 203 (1947); see NLRB v. Bell Aerospace Co.,
416 U.S. 267, 294 (1974). Some previous Attorneys General have preferred
to resolve questions of immigration law through rulemaking. See Matter of
Compean, 25 I&N Dec. 1, 2 (A.G. 2009) (reversing a prior Attorney General
opinion and ordering as-yet-unfinished rulemaking to resolve the issue).
Others have resolved significant questions by certifying immigration
decisions. E.g., Matter of R-A-, 24 I&N Dec. 629, 630–31 (A.G. 2008)
(ordering the Board to proceed with adjudications that a prior Attorney
General opinion had stayed pending a never-finalized rulemaking). I have
concluded that adjudication presents a more efficient, but equally thorough,
means of considering the legal basis for the practice of administrative
closure.
After certifying this case, I received a party submission from DHS and
fourteen amicus briefs spanning over five hundred pages. DHS and one
amicus argue that no statute or regulation authorizes general administrativeclosure authority. Most other amici contend that immigration judges and the
Board implicitly possess this authority, relying upon regulations establishing
the general powers of immigration judges and the Board, regulations
expressly delegating administrative closure authority in some circumstances,
and adjudicators’ inherent authority.
“I review de novo all aspects of the Board’s and the Immigration Judge’s
decisions in this case.” Matter of J-F-F-, 23 I&N Dec. 912, 913 (A.G. 2006).
Furthermore, Congress has provided that “determination[s] and ruling[s] by
the Attorney General with respect to all questions of law,” i.e., all questions
of law arising under the INA and “all other laws relating to the immigration
and naturalization of aliens,” “shall be controlling.” INA § 103(a)(1), 8
U.S.C. § 1103(a)(1); see also D-J-, 23 I&N Dec. at 573–74 & n.2. Thus, this
published decision is binding on the Board and will overrule any Board
decision with which it is inconsistent. See Matter of Jean, 23 I&N Dec. 373,
374 n.3 (A.G. 2002).

III.
Immigration judges and the Board have come to rely upon administrative
closure without thoroughly explaining their authority to do so. Unlike the
power to grant continuances, which the regulations expressly confer,
immigration judges and the Board lack a general authority to grant
administrative closure. No Attorney General has delegated such broad
282

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

authority, and legal or policy arguments do not justify it. I therefore hold
that immigration judges and the Board lack this authority except where a
previous regulation or settlement agreement has expressly conferred it.
A.
As noted above, the INA vests the Attorney General with the supervision
of immigration proceedings. Pursuant to the INA and Attorney General
regulations, the immigration judges and the Board administer that system.
However, these individuals exercise only the authority provided by statute or
delegated by the Attorney General. As the courts of appeals have recognized,
“there is no statutory basis for administrative closures. Nor is there any
regulatory basis for administrative closures.” Diaz-Covarrubias v. Mukasey,
551 F.3d 1114, 1118 (9th Cir. 2009); Hernandez v. Holder, 579 F.3d 864,
877 (8th Cir. 2009) (same), vacated in part, 606 F.3d 900 (8th Cir. 2010);
accord Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 889 (9th Cir. 2018)
(“Although [administrative closure] is regularly used, it is not described in
the immigration statutes or regulations.”); Vahora v. Holder, 626 F.3d 907,
917 (7th Cir. 2010) (“[A]dministrative closure is not a practice specified in
the statute, nor is it mentioned in the current regulations.”). Therefore, I must
consider whether immigration judges or the Board possess the authority of
administrative closure based on the general powers conferred on them or on
their inherent authority to decide cases.
1.
The INA provides that immigration judges “shall conduct proceedings for
deciding the inadmissibility or deportability of an alien,” INA § 240(a)(1), 8
U.S.C. § 1229a(a)(1), and “shall be subject to such supervision and shall
perform such duties as the Attorney General shall prescribe,” INA §
101(b)(4), 8 U.S.C. § 1101(b)(4). Immigration judges may “exercise the
powers and duties delegated to them by the [INA] and by the Attorney
General through regulation,” and “shall be governed by the provisions and
limitations prescribed by the [INA]” and relevant regulations and Board
decisions. 8 C.F.R. § 1003.10(b), (d); see also Lopez-Telles v. INS, 564 F.2d
1302, 1304 (9th Cir. 1977); Deportation Proceedings for Joseph Patrick
Thomas Doherty, 12 Op. O.L.C. 1, 3–4 (1988). Similarly, the Board is “a
regulatory creature of the Attorney General, to which he has delegated much
of his authority under the applicable statutes.” Doherty, 502 U.S. at 327.
The Board’s authority is limited to “the review of those administrative
adjudications under the Act that the Attorney General may by regulation
assign to it,” 8 C.F.R. § 1003.1(d)(1), and the Board is “governed by the
283

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

provisions and limitations prescribed by applicable law, regulations, and
procedures, and by decisions of the Attorney General,” id. § 1003.1(d)(1)(i).
The parties and amici agree that no statute or regulation explicitly
delegates general administrative-closure authority. Instead, the Board in
Avetisyan and some amici infer such a delegation from regulations
authorizing immigration judges or the Board, in deciding cases, to “exercise
their independent judgment and discretion and . . . take any action consistent
with their authorities under the [INA] and regulations that is appropriate and
necessary for the disposition of such cases.” 8 C.F.R. § 1003.10(b)
(immigration judges); id. § 1003.1(d)(1)(ii) (the Board; similar). Notably,
these authorities do not stand alone. After recognizing that immigration
judges may take appropriate and necessary actions, section 1003.10(b)
identifies a list of powers, such as “administer[ing] oaths,” “receiv[ing]
evidence,” examining witnesses, and issuing administrative subpoenas. The
section concludes with the direction that “[i]n all cases, immigration judges
shall seek to resolve the questions before them in a timely and impartial
manner consistent with the [INA] and regulations.” Id. § 1003.10(b)
(emphasis added). Section 1003.1(d)(1)(ii), which applies to the Board,
contains a parallel direction.
Most courts have interpreted section 1003.10(b) to confer on immigration
judges “a reasonable degree of latitude in conducting . . . proceedings.”
Ramirez-Durazo, 794 F.2d 491, 496 (9th Cir. 1986); see, e.g., Jeronimo v.
U.S. Att’y Gen, 678 F. App’x 796, 804 (11th Cir. 2017) (immigration judges’
express authority to “receive” evidence includes the authority to accept
evidence into the record and weigh its evidentiary value); Ramirez-Durazo,
794 F.2d at 496 (immigration judges’ express authority to conduct hearings
extends to conducting joint hearings). 6 But courts have not identified the
adoption of procedures to indefinitely suspend the adjudication as part of that
latitude.
6

In Baez-Sanchez v. Sessions, 872 F.3d 854 (7th Cir. 2017), the Seventh Circuit interpreted
8 C.F.R. § 1003.10(b) as “a declaration that [immigration judges] may exercise all of the
Attorney General’s powers ‘in the cases that come before them’, unless some other
regulation limits that general delegation.” Id. at 855. That interpretation is inconsistent
with the regulatory text, which limits immigration judges to authorities that are
“appropriate and necessary” to resolving cases in a manner consistent with existing statutes
and regulations, rather than authorizing novel tools for adjudication. That interpretation
would also render superfluous other specific grants of authority, such as regulations
authorizing the granting of continuances, 8 C.F.R. § 1003.29, or authorizing administrative
closure for qualifying nationals of particular countries and other types of aliens, 8 C.F.R.
§§ 1245.13 (qualifying nationals of Nicaragua and Cuba), 1245.15 (qualifying nationals of
Haiti), 1245.21 (qualifying nationals of Vietnam, Cambodia, and Laos), 1214.2 (T
nonimmigrant status), 1214.3 (V nonimmigrant status).
284

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

Courts have similarly held that the Board’s parallel authority under
section 1003.1(d)(1)(ii) does not “expressly or impliedly” grant “plenary
power[s].” Sosa-Valenzuela v. Gonzales, 483 F.3d 1140, 1146–47 (10th Cir.
2007). Rather, section 1003.1(d)(1)(ii) grants the Board the discretion to take
actions consistent with reviewing appeals such as deciding questions not
expressly raised, accepting untimely briefs, and correcting obvious
omissions in an immigration judge’s order. E.g., Desta v. Ashcroft, 329 F.3d
1179, 1185 (10th Cir. 2003) (immigration judge’s failure to designate a
country of deportation); Getachew v. INS, 25 F.3d 841, 845 (9th Cir. 1994)
(late briefs); Vargas-Ceja v. Mukasey, 301 F. App’x 652, 653 (9th Cir. 2008)
(deciding questions “not specifically raised on appeal”).
Neither section 1003.10(b) nor section 1003.1(d)(1)(ii) confers the
authority to grant administrative closure. Grants of general authority to take
measures “appropriate and necessary for the disposition of such cases” would
not ordinarily include the authority to suspend such cases indefinitely.
Administrative closure in fact is the antithesis of a final disposition. These
provisions further direct immigration judges or the Board to resolve matters
“in a timely fashion”—another requirement that conflicts with a general
suspension authority.
The Board in Avetisyan also relied upon section 1240.1(a), which
identifies the jurisdiction of immigration judges in removal proceedings. 25
I&N Dec. at 691, 694. The first three clauses of subsection (a)(1) provide
that the judge may “[d]etermine removability,” resolve applications under
particular statutes, and “order withholding of removal.” 8 C.F.R. §
1240.1(a)(1)(i)–(iii). The fourth clause adds that immigration judges may
“take any other action consistent with applicable law and regulations as may
be appropriate.” 8 C.F.R. § 1240.1(a)(1)(iv). As part of a series of provisions
specifying immigration judges’ jurisdiction, that phrase may grant authority
to issue final orders in analogous matters. See Atunnise v. Mukasey, 523 F.3d
830, 839 (7th Cir. 2008) (referring to the phrase as a “catchall” jurisdictional
authority); see also Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 575 (1995)
(“[A] word is known by the company it keeps (the doctrine of noscitur a
sociis). This rule we rely upon to avoid ascribing to one word a meaning so
broad that it is inconsistent with its accompanying words.”). That provision
does not concern the authority to make procedural rulings within the
proceeding, such as the granting of administrative closure.
Nor is section 1240.1(c) a source of administrative-closure authority.
That provision recognizes that in conducting hearings, immigration judges
may “receive and consider material and relevant evidence, rule upon
objections, and otherwise regulate the course of the hearing.” 8 C.F.R. §
1240.1(c). The last phrase—“otherwise regulate the course of the hearing”—
provides general authority in connection with the presentation of argument
285

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

and evidence. E.g., Champion v. Holder, 626 F.3d 952, 957–58 (7th Cir.
2010) (section 1240.1(c) allows immigration judges to refuse to allow
closing arguments); Pulisir v. Mukasey, 524 F.3d 302, 311 (1st Cir. 2008)
(section 1240.1(c) grants authority to exclude testimony from witnesses with
no personal knowledge of facts). Again, it does not entail an authority to
grant an indefinite suspension. 7
Regulations also grant the Chief Immigration Judge and the Chairman of
the Board the authority to manage dockets. Subject to the supervision of the
Director of EOIR, both administrators may “[i]ssue operational instructions
and policy.” 8 C.F.R. § 1003.9(b)(1) (Chief Immigration Judge); id. §
1003.1(a)(2)(i)(A) (Chairman). They have the power “to set priorities or
time frames for the resolution of cases, to direct that the adjudication of
certain cases be deferred, to regulate the assignment of [immigration judges
or Board members] to cases, and otherwise to manage the docket of matters
to be decided by” the immigration judges or the Board. 8 C.F.R. §
1003.9(b)(3) (Chief Immigration Judge); id. § 1003.1(a)(2)(i)(C)
(Chairman). These regulations grant no express authority to administratively
close cases, and cannot reasonably be interpreted to implicitly delegate such
authority. They permit only more limited actions, like delaying the
scheduling of certain cases to prioritize others. 8
In all events, the Chief Immigration Judge and the Chairman of the Board
have never purported to “direct that the adjudication of certain cases be
deferred” by authorizing individual immigration judges or Board members
to exercise a general administrative-closure authority. To the extent that past
memoranda have mentioned administrative closure, they have simply
assumed—based on Board precedent—that the authority exists. See, e.g.,
OPPM 15-01 at 3 (advising that “[j]udges are encouraged to use the
docketing tools available to them,” including “administrative closure in
appropriate cases”); OPPM 13-01 at 2 (“[r]equests for administrative closure
. . . should be granted in appropriate circumstances” since “[a]dministrative
closure is a legitimate method of removing a case from the court’s active
docket, and preserving limited adjudicative resources”). Decades of Board
precedents further undercut the notion that the Chief Immigration Judge or
Chairman of the Board have authorized administrative closure. Notably,
Avetisyan did not rely upon section 1003.9(b)(1) or 1003.1(a)(2)(i)(A), but
7

The Board in Avetisyan also cited 8 C.F.R. § 1003.14(a) for the proposition that
jurisdiction vests upon the filing of a notice to appear. 25 I&N Dec. at 694. But that
provision is not an independent source of authority for administrative closure; it merely
reflects when jurisdiction vests. 8 C.F.R. § 1003.14(a).
8
Moreover, section 1003.9(b)(1) did not grant the Chief Immigration Judge the authority
to defer adjudications or otherwise manage dockets until 2007, so it cannot justify a
practice that immigration judges have employed since the 1980s.
286

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

instead invoked regulations delegating general powers to immigration judges
or the Board. 25 I&N Dec. at 691 (citing 8 C.F.R. §§ 1003.10(b),
1240.1(a)(1)(iv), (c)).
In the course of reviewing Board decisions involving administrative
closure, federal courts have assumed that immigration judges and the Board
have such authority. In Gonzalez-Caraveo, for instance, the Ninth Circuit
relied upon Avetisyan and identified section 1003.1(d)(1)(ii) and section
1003.10(b) as sources of this putative power. 882 F.3d at 890–91. That
opinion, however, is best read as merely restating the Board’s reasoning in
Avetisyan rather than independently parsing the regulations. In fact, the
Ninth Circuit in Gonzalez-Caraveo relied upon its previous decision in DiazCovarrubias, which explicitly stated that administrative closure had “no
statutory basis” and no “regulatory basis.” Id. at 889, 891–92. Other federal
courts have similarly assumed the existence of this authority and applied the
Board’s existing standards. E.g., Tello-Espana v. Sessions, 712 F. App’x
554, 557–58 (6th Cir. 2017); Hernandez-Castillo v. Sessions, 875 F.3d 199,
207, 209 (5th Cir. 2017); Gonzalez-Vega v. Lynch, 839 F.3d 738, 740–42
(8th Cir. 2016); Duruji v. Lynch, 630 F. App’x 589, 592 (6th Cir. 2015);
Santos-Amaya v. Holder, 544 F. App’x 209, 209 (4th Cir. 2013); Vahora,
626 F.3d at 914–15, 919–20. But no federal court has analyzed the
regulations in detail, much less held that they unambiguously confer such
authority. Accordingly, those decisions neither conflict with, nor diminish,
my authority to interpret the relevant regulations here. See Nat’l Cable &
Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005); INA
§ 103(a)(1), 8 U.S.C. § 1103(a)(1) (“[D]etermination[s] and ruling[s] by the
Attorney General with respect to all questions of law shall be controlling.”).
I do not believe that the existing regulations offer a persuasive basis for
inferring a delegation of the authority to administratively close cases. 9
2.
Interpreting the existing regulations to provide a general authority to
grant administrative closure would also make the specific delegations that
Attorneys General have made in this area largely superfluous. It is not
9

DHS has promulgated a regulation that grants certain aliens with administratively closed
cases eligibility to apply for a provisional waiver of inadmissibility. See supra note 2; INA
§ 103(a)(1), 8 U.S.C. § 1103(a)(1). Because only the Attorney General may expand the
authority of immigration judges or the Board, that regulation cannot be an independent
source of authority for administrative closure. In all events, that regulation does not
presuppose general administrative-closure authority because it still has force in all cases
subject to administrative closure based on regulations that expressly and specifically
authorize it for particular types of aliens.
287

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

consistent with this scheme to read it to confer sweeping implied authorities
beyond those that prior Attorneys General have chosen to delegate. Such an
interpretation would further conflict with the policies underlying the INA and
the regulations that obligate immigration judges and the Board to resolve
immigration matters expeditiously.
When my predecessors have delegated to immigration judges or the
Board the authority to pause proceedings, they have done so by expressly
and specifically granting such authority. For instance, as described above,
EOIR regulations have expressly authorized or required administrative
closure under a defined set of circumstances, such as where involving
nationals of particular countries who are statutorily eligible to apply for
certain relief. See supra pp. 4–5.
These instances of limited, express authorization reinforce the conclusion
that no broad delegation of authority exists. See Cont’l Cas. Co. v. United
States, 314 U.S. 527, 533 (1942) (“Generally speaking a ‘legislative
affirmative description’ implies denial of the nondescribed powers.”);
Botany Worsted Mills v. United States, 278 U.S. 282, 289 (1929) (“When a
statute limits a thing to be done in a particular mode, it includes the negative
of any other mode.”). Moreover, if the above regulations had delegated
general authority to administratively close all types of cases, regulations like
8 C.F.R. § 1214.2(a), the provision specifying that immigration judges “may”
administratively close certain cases involving human trafficking victims,
would be superfluous. See Advocate Health Care Network v. Stapleton, 137
S. Ct. 1652, 1659 (2017) (“Our practice . . . is to ‘give effect, if possible, to
every clause and word of a statute.’” (quoting Williams v. Taylor, 529 U.S.
362, 404 (2000))); Yates v. United States, 135 S. Ct. 1074, 1085 (2015)
(plurality opinion) (“We resist a reading of [the relevant statutory provision]
that would render superfluous an entire provision passed in proximity as part
of the same Act.”); see also Black & Decker Corp. v. Comm’r of Internal
Revenue, 986 F.2d 60, 65 (4th Cir. 1993) (“Regulations, like statutes, are
interpreted according to canons of construction. Chief among these canons
is the mandate that ‘constructions which render regulatory provisions
superfluous are to be avoided.’” (quoting Hart v. McLucas, 535 F.2d 516,
519 (9th Cir. 1976))). There would be no need to provide that immigration
judges “may” administratively close specific cases if they already possessed
the discretionary power to do so.
Likewise, regulations expressly confer the authority to grant
continuances, the docket-management device that most resembles
administrative closure. An immigration judge “may grant a motion for
continuance for good cause shown.” 8 C.F.R. § 1003.29; see also 8 C.F.R.
§ 1240.6 (an immigration judge “may grant a reasonable adjournment either
at his or her own instance or, for good cause shown, upon application by the
288

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

respondent or [DHS]”). A continuance temporarily defers a case for a fixed
period while it remains on the docket. But if general regulatory provisions
already gave immigration judges the implicit power to suspend cases
indefinitely through administrative closure, those same general
authorizations would surely empower immigration judges to suspend cases
for finite periods through continuances. And if immigration judges already
possessed such authority, there would have been little point in expressly
empowering immigration judges to grant continuances. Cf. RhodesBradford v. Keisler, 507 F.3d 77, 80 (2d Cir. 2007) (rejecting the Board’s
asserted authority to issue removal orders in the first instance because “when
the regulations confer upon [immigration judges] the power to issue removal
orders, they do so quite explicitly”). I must adopt an interpretation that gives
each regulation independent meaning, not one that renders the continuance
regulation unnecessary. See Advocate Health Care Network, 137 S. Ct. at
1659; Yates, 135 S. Ct. at 1085.
In reaching this conclusion, I am mindful that the preambles to some
regulations authorizing administrative closure for a narrow set of cases
accept as a given that immigration judges and the Board have employed the
practice more broadly. Adjustment of Status for Certain Aliens from
Vietnam, Cambodia, and Laos in the United States, 67 Fed. Reg. 78667,
78669 (Dec. 26, 2002); Adjustment of Status for Certain Nationals of Haiti,
65 Fed. Reg. 15835, 15842 (Mar. 24, 2000). But these statements merely
acknowledge then-existing Board precedent, and do not purport
independently to confer such authority. 10
Finally, interpreting these regulations to authorize the general
administrative closure of cases would conflict with the policies underlying
the INA and its implementing regulations. Under the INA, DHS has the
exclusive authority to decide whether and when to initiate proceedings. WY-U-, 27 I&N Dec. at 19. Once DHS initiates proceedings, immigration
judges and the Board must proceed “expeditious[ly]” to resolve the case. 8
C.F.R. § 1003.12; see Matter of Roussis, 18 I&N Dec. 256, 258 (BIA 1982)
(“It has long been held that when enforcement officials of the Immigration
and Naturalization Service [now DHS] choose to initiate proceedings against
an alien and to prosecute those proceedings to a conclusion, the immigration
judge is obligated to order deportation if the evidence supports a finding of
deportability on the ground charged.”).
10

I am aware of no other evidence that previous Attorneys General delegated the general
authority to administratively close cases, and the Board has never cited any such delegation.
To the extent that any Attorney General could be viewed as having made such a delegation,
I hereby exercise my discretion to revoke it because the practice of administrative closure
thwarts the efficient and even-handed resolution of immigration proceedings.
289

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

These requirements reflect the “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.”
INS v. Abudu, 485 U.S. 94, 107 (1988); see id. at 107–08; 8 C.F.R. §
1003.10(b) (“In all cases immigration judges shall seek to resolve the
questions before them in a timely and impartial manner consistent with the
[INA] and regulations.”). These requirements are also essential to the
expeditious enforcement of our immigration laws. Delay virtually always
operates to the detriment of the government. See Doherty, 502 U.S. at 323
(“[A]s a general matter, every delay works to the advantage of the deportable
alien who wishes merely to remain in the United States.”); see also Stone v.
INS, 514 U.S. 386, 399–400 (1995) (similar). Yet, “an unreasonable delay
in the resolution of the proceedings may operate to the detriment of aliens by
preventing them from obtaining relief that can provide lawful status.” W-YU-, 27 I&N Dec. at 20.
This certified case demonstrates how administrative closure particularly
undermines the INA’s mandate to swiftly adjudicate immigration cases when
the respondent fails to appear. The INA unambiguously states that, with
respect to in absentia proceedings, so long as DHS adequately alleges that it
provided legally sufficient written notice to an alien, the alien “shall be
ordered removed in absentia if [DHS] establishes by clear, unequivocal, and
convincing evidence that the written notice was so provided and that the alien
is removable.” INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A) (emphasis
added); see also 8 C.F.R. § 1003.26. Section 240(b)(5) thus imposes an
obligation to proceeding expeditiously to determine whether the requisite
evidence supports the removal charge. Lopez-Barrios, 20 I&N Dec. at 204.
Congress enacted this requirement “in response to a serious problem of aliens
deliberately failing to appear for hearings and thus effectively extending their
stay in this country.” Kaweesa v. Gonzales, 450 F.3d 62, 68 (1st Cir. 2006);
see Arrieta v. INS, 117 F.3d 429, 431 (9th Cir. 1997). 11 Accordingly, once
DHS alleged that it provided adequate notice, the INA required the
Immigration Judge to adjudicate the proceedings in absentia. Instead, the
Immigration Judge ordered the case administratively closed because of his
11

Section 242B, the original version of section 240(b)(5) of the INA, was codified at 8
U.S.C. § 1252b. See Immigration Act of 1990, Pub. L. No. 101-649, § 545(a), 104 Stat.
4978, 5061 (1990). In 1996, Congress struck section 242B and distributed its terms to
other portions of the INA. See Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Pub. L. No. 104-208, § 308(b)(6), 110 Stat. 3009, 3009-615 (1996). The
Notice to Appear and Notice of Hearing requirements were moved to INA § 239(a), 8
U.S.C. § 1229(a), and the mandatory in absentia removal language was moved, with no
material modifications, to INA § 240(b)(5), 8 U.S.C. § 1229a(b)(5).
290

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

mistaken understanding of the notice required. Even if the respondent had
received deficient notice, the proper course would have been to grant a
continuance or terminate the proceedings, not to leave the case in limbo. 12
3.
There is also no basis for inferring that immigration judges or the Board
possess a general power to order administrative closure based on some
inherent adjudicatory authority. The fact that federal district courts employ
administrative closure as a docket-management tool to temporarily defer
adjudication on the merits during the pendency of other proceedings does not
justify the practice here. Cf. Avetisyan, 25 I&N Dec. at 690 n.2; see generally
CitiFinancial Corp. v. Harrison, 453 F.3d 245, 250–51 (5th Cir. 2006)
(noting that federal courts use administrative closure to defer cases when, for
instance, there is a pending arbitration). As Article III courts, federal courts
may possess inherent authority because of “the nature of their institution,”
which requires them to exercise powers “necessary to the exercise of all
other[]” judicial powers even though such powers are “governed not by rule
or statute.” Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (internal
quotation marks omitted); see Ali v. Quarterman, 607 F.3d 1046, 1049 (5th
Cir. 2010) (grounding administrative-closure authority in federal courts’
12

DHS adequately alleged that it provided sufficient notice because the Notice to Appear
informed the respondent of all statutorily required information about the proceedings, and
the subsequent Notice of Hearing included the date and time of proceedings. See INA §
240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A); INA § 239(a)(1)(F)–(G), 8 U.S.C. §
1229(a)(1)(F)–(G). Taken together, the Notice to Appear and each Notice of Hearing
contained all the statutorily required information. See, e.g., Gomez-Palacios v. Holder,
560 F.3d 354, 359 (5th Cir. 2009) (notice is satisfied by the combination of the Notice to
Appear and Notice of Hearing). DHS also adequately alleged that the form of the notice
was sufficient. DHS personally served the Notice to Appear on the respondent and mailed
the Notice of Hearing to the address the respondent repeatedly provided the government.
See INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A); Renaut v. Lynch, 791 F.3d 163, 166–
67 (1st Cir. 2015) (DHS enjoys a presumption of effective notice where it can demonstrate,
via proof of attempted delivery, that notice was sent by regular mail to the address provided
by the respondent). The fact that the respondent was a seventeen-year-old unaccompanied
alien child at the time he received notice does not change this analysis. Service of notice
for immigration proceedings on a responsible adult is only required “in the case of a minor
under 14 years of age,” 8 C.F.R. § 103.8(c)(2)(ii); its clear text is not altered by a separate
regulatory statement providing for release of aliens under eighteen to an adult’s custody, 8
C.F.R. § 1236.3. See Lopez-Dubon v. Holder, 609 F.3d 642, 645–46 (5th Cir. 2010);
Llapa-Sinchi v. Mukasey, 520 F.3d 897, 899–901 (8th Cir. 2008); Matter of Cubor-Cruz,
25 I&N Dec. 470, 471–73 (BIA 2011). The Ninth Circuit has adopted a contrary view, see
Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1157–60 (9th Cir. 2004), but other courts have
rightly rejected it as inconsistent with the regulatory text.
291

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

inherent powers). But immigration judges and the Board have no such
inherent authority. They act on behalf of the Attorney General in
adjudicating immigration cases, and can exercise only the specific powers
that statutes or the Attorney General delegate. See supra p. 9.
Moreover, federal courts employ administrative closure much less
frequently. Importantly, cases administratively closed in federal court
remain on an inactive docket and can be recalendared upon either party’s
request or at the court’s discretion. CitiFinancial, 453 F.3d at 250–51.
Administratively closed cases in federal courts thus differ significantly from
a “fully ‘dismissed’ case,” which is “removed from the docket, terminated
indefinitely, and restarted only upon the filing of a new complaint.” Id. at
251. But the practice of administrative closure in immigration proceedings
blurs this critical distinction. Immigration judges and the Board halt
proceedings indefinitely, cease tracking the proceedings, and allow
proceedings to resume only if the party seeking recalendaring satisfies the
burden of demonstrating a good reason to resume proceedings. See supra p.
1; see also W-Y-U-, 27 I&N Dec. at 17–18 & n.4.
The fact that immigration judges and the Board have used administrative
closure in a wide array of cases since the 1980s is also insufficient to establish
the existence of that authority. As noted, immigration judges or the Board
can exercise power only if the Attorney General delegates it. See supra p. 9.
They cannot arrogate power to themselves by seizing it and relying on the
Attorney General’s lack of express disapproval.
B.
The current practice of administrative closure lacks a valid legal
foundation, and I do not believe it would be appropriate to delegate such
authority. Regulations already expressly authorize other mechanisms that
serve the same functions, and those other mechanisms avoid many of the
drawbacks of administrative closure. Cases that should not go forward
should be terminated (either with or without prejudice), or dismissed,
provided they meet the relevant legal standard. Unlike administrative
closure, termination and dismissal ensure finality, cutting down on the
number of cases orphaned within the immigration courts. Further, such
actions encourage more accountability, by resulting in a final, transparent
order from the immigration judge who ends the case. By contrast,
administrative closure has produced a backlog all its own, with far fewer
cases being recalendared than closed and some cases suspended for decades.
As discussed, for cases that truly warrant a brief pause, the regulations
expressly provide for continuances. See Duruji, 630 F. App’x. at 592
(“[A]dministrative closure is akin to a continuance.”). Unlike administrative
292

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

closure, however, continuances are for a fixed but potentially renewable
period of time, and are granted upon a showing of “good cause.” 8 C.F.R. §
1003.29. Continuances ensure that immigration cases do not get lost in the
shuffle and will move forward once the circumstances warranting delay
disappear. Immigration judges remain accountable for the proceedings, and
the periods of delay are transparent. That is the appropriate way to deal with
exceptional circumstances that legitimately warrant an exception to the fair
and efficient administration of immigration laws. 13

IV.
For the reasons set forth above, I conclude that immigration judges and
the Board lack the general authority to administratively close cases.
Nonetheless, statistics maintained by EOIR show that at the end of Fiscal
Year 2017, some 355,835 administratively closed cases had yet to be
recalendared. A small proportion of those cases have been closed pursuant
to regulations expressly authorizing administrative closure in particular cases
or pursuant to court-approved settlements. See 8 C.F.R. §§ 1214.2(a),
1214.3, 1245.13(d)(3)(i), 1245.15(p)(4)(i), 1245.21(c), 1240.62(b),
1240.70(f)–(h); Barahona-Gomez, 243 F. Supp. 2d 1029; ABC, 760 F. Supp.
796. All of these cases should continue to proceed in the manner directed by
the relevant regulations or settlement agreements.
In the other administratively closed cases, immigration judges and the
Board ordered administrative closure without the authority to do so. I am
cognizant of the need to return these cases to the active docket so that these
matters can proceed expeditiously. Requiring recalendaring of all of these
cases immediately, however, would likely overwhelm the immigration courts
and undercut the efficient administration of immigration law. See generally
8 C.F.R. § 1003.12. Consequently, I now order that all cases that are
currently administratively closed may remain closed unless DHS or the
respondent requests recalendaring. Upon the motion of either party, an
13

Those features illustrate why continuances are a superior alternative to administrative
closure for cases involving particularly vulnerable respondents. The good-cause standard,
when properly applied, gives judges sufficient discretion to pause proceedings in individual
cases while also preventing undue delays. For example, a continuance may allow an
immigration judge to oversee an alien minor’s progress in obtaining appropriate alternative
forms of relief. By holding periodic hearings, the immigration judge can monitor the relief
process while ensuring that the case does not get lost. Similarly, a continuance may allow
a judge to reassess the circumstances of a respondent in a competency case, a valuable tool
because “[m]ental competency is not a static condition” and “Immigration Judges need to
consider indicia of incompetency throughout the course of proceedings.” Matter of M-AM-, 25 I&N Dec. 474, 480 (BIA 2011).
293

Cite as 27 I&N Dec. 271 (A.G. 2018)

Interim Decision #3926

immigration judge or the Board, as relevant, shall recalendar the case. I
expect the recalendaring process will proceed in a measured but deliberate
fashion that will ensure that cases ripe for resolution are swiftly returned to
active dockets.
This rule for recalendaring is no different from the types of actions that
the Board has taken. See, e.g., W-Y-U-, 27 I&N Dec. 17 (modifying the
recalendaring standards that apply to administratively closed cases).
Furthermore, requiring recalendaring on the motion of either party does not
conflict with the duty of immigration judges and the Board to “exercise their
independent judgment and discretion” in the administration of removal
proceedings. 8 C.F.R. §§ 1003.1(d)(1)(ii), 1003.10(b). Where immigration
judges and the Board lack the authority to grant administrative closure in the
first instance, it does not infringe on their authority to direct that they restore
such cases to their calendar and decide them expeditiously and impartially.
This rule is both administrable and legally sound. Existing regulations
already require the recalendaring of certain administratively closed cases
upon a party’s motion. E.g., 8 C.F.R. §§ 1245.13(m)(1)(ii) (requiring
recalendaring upon DHS motion in administratively closed cases of
qualifying Nicaraguan and Cuban nationals), 1245.15(r)(2)(ii) (requiring
recalendaring upon DHS motion in administratively closed cases of
qualifying Haitian nationals). No court has ever deemed those provisions
legally deficient, nor have there been any evident difficulties in
administration.
Extending that recalendaring requirement to all
administratively closed cases and directing immigration judges and the
Board to recalendar such cases at a party’s request will ensure that all
administratively closed cases are treated equally. 14

V.
I hereby affirm the Board’s November 27 decision and remand this case
to the Board with instructions to remand to the Immigration Judge to issue a
new Notice of Hearing within 14 days of the date of this order. If the
respondent again fails to appear, the Immigration Judge should proceed
according to 8 U.S.C. § 1229a(b)(5).
14

My decision also does not raise due process or retroactivity concerns. Administrative
closure confers no legal entitlement to indefinite closure and has always been understood
as revocable. See Mendoza-Ramirez v. Holder, 327 F. App’x 753, 754 (9th Cir. 2009)
(“Petitioners have no constitutionally-protected liberty interest in administrative closure,
as it is a matter of ‘administrative convenience.’”); cf. Khan v. Att’y Gen. of the U.S., 448
F.3d 226, 236 (3d Cir. 2006) (“The Government correctly argues that Khan ‘has no
constitutional right to have his proceedings held in abeyance while he attempts, belatedly,
to restore his status.’”).
294