Administrative Closure in Removal Proceedings is Restored

by Emmanuel S. Tipon, Esq.

Alleluia! Hallelujah! Aliens in removal proceedings can breathe a sigh of relief – for the nonce. Attorney General Merrick Garland has ordered that administrative closure in removal proceedings be restored, pending reconsideration of a December 16, 2020, Department of Justice rule which had effectively codified a contrary prior opinion. Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021), decided July 15, 2021.

Garland overruled the opinion of former Attorney General Jeff Sessions in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) which concluded that the immigration courts’ use of administrative closure was not authorized by statute, regulation, or delegation from the Attorney General. Garland criticized the former Attorney General’s opinion as having departed from long-standing practice.

The Attorney General establishes regulations, issues instructions, and reviews administrative determinations in immigration proceedings. 8 USC 1103(g)(2).

Administrative closure is “a docket management tool that is used totemporarily pause removal proceedings.” It does not terminate or dismiss the case, but rather removes a case from an Immigration Judge’s active calendar or from the Board of Immigration Appeal’s docket.

It has been used to pause cases while the United States Citizenship and Immigration Services (“USCIS”) adjudicates a noncitizen’s pending visa petition, or while a noncitizen facing removal on criminal grounds pursues direct appeal or post-conviction relief in criminal court. It also has served to facilitate the exercise of prosecutorial discretion, allowing government counsel to request that certain low-priority cases be removed from immigration judges’ active calendars or the Board’s docket, thereby allowing adjudicators to focus on higher-priority cases.

In this case, Cruz-Valdez, a Mexican national, moved before the immigration judge to administratively close his case while he submitted a Form I-601A, Application for Provisional Unlawful Presence Waiver, with USCIS. The immigration judge and the Board denied his motion citing Matter of Castro-Tum.

Factors in granting administrative closure
The Attorney General said that immigration judges and the Board should apply the standard for administrative closure set out in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) and Matter of W-Y-U-, 27

I&N Dec. 17 (BIA 2017).

In Avetisyan, the Board authorized immigration judges and the Board to administratively close a case over the objection of one party after considering the following 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 petition, application, or other action he or she is pursuing outside of removal proceedings;
(4) the anticipated duration of the closure;
(5) the responsibility of either party, if any, in contributing to any current or

anticipated delay; and
(6) the ultimate outcome of removal proceedings… when the case is recalendared before the Immigration Judge or the appeal is reinstated before the Board.

The Board subsequently clarified 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.” W-Y-U-, 27 I&N Dec. 17 at 20 & n.5.

Practice pointer: In order to obtain administrative closure, counsel for the alien (or the DHS), should file a motion with the immigration court or with the Board, as the case may be, discussing the factors cited in Avetisyan. Counsel should also state that counsel will inform the court when the petition or application that the alien is pursuing outside the removal proceedings has been adjudicated and the result thereof.

COMMENT: I have a case in immigration court where the respondent alien married a U.S. citizen during the pendency of the removal proceedings. The citizen spouse filed an I-130 Petition for Alien Relative on behalf of the alien with USCIS. The immigration judge asked during the Master Calendar hearing what relief I intended to ask. I said that I would ask for administrative closure to allow USCIS time to adjudicate the petition. The judge said that he would deny it. That was before Matter of Cruz-Valdez was decided on July 15, 2021. Now I will formally ask the court to administratively close the case and cite Matter of Cruz Valdez.

The information provided in this article is not legal advice. Publication of this information is not intended to create, and receipt by you does not constitute an attorney-client relationship.ATTY. EMMANUEL S. TIPON was a Fulbright and Smith-Mundt scholar at Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He has a Bachelor of Laws degree from the University of the Philippines. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He writes law books and legal articles for Thomson Reuters and writes columns for newspapers. He wrote the best-seller “Winning by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Attorney Emmanuel “Noel” Tipon. They talk about immigration law, criminal law, court-martial defense, and current events. It is considered the wittiest, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m.  Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645.  E-Mail: Website:

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