In re Gutierrez-Lopez
| Citation | 21 I&N Dec. 479 |
| Decision Date | 18 June 1996 |
| Docket Number | Interim Decision No. 3286.,File A28 758 771. |
| Parties | In re Alba Luz GUTIERREZ-Lopez, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
(1) Administrative closure of a case is used to temporarily remove the case from an Immigration Judge's calendar or from the Board of Immigration Appeal's docket. A case may not be administratively closed if opposed by either of the parties. Administrative closing of a case does not result in a final order. It is merely an administrative convenience which allows the removal of cases from the calendar in appropriate situations.
(2) The settlement agreement under American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) ("ABC"), specifically states that nothing in the agreement shall limit the right of a class member to pursue other legal rights to which he or she might be entitled under the Immigration and Nationality Act. This language is mandatory and does not indicate that such action by an alien would be curtailed by the administrative closing of each class member's case or postponed until the eventual final resolution of each class member's remedies under the settlement agreement itself.
(3) An ABC alien's right to apply for relief from deportation is not prohibited due to the administrative closure of his or her case. Such an alien, therefore, may file a motion to reopen with the administrative body which administratively closed his or her case in order to pursue issues or relief from deportation which were not raised in the administratively closed proceedings. Such motion must comply with all applicable regulations in order for the alien's case to be reopened.
(4) An alien who has had his or her case reopened and who receives an adverse decision from an Immigration Judge in the reopened proceedings must file an appeal of that new decision, in accordance with applicable regulations, in order to vest the Board with jurisdiction to review the Immigration Judge's decision on the issues raised in the reopened proceedings. That appeal would be a separate and independent appeal from any previously filed appeal and would not be consolidated with an appeal before the Board regarding issues which have been administratively closed.
(5) Any appeal pending before the Board regarding issues or forms of relief from deportation which have been administratively closed by the Board prior to the reopening of the alien's proceedings will remain administratively closed. A motion to reinstate an appeal is required before issues which have been administratively closed can be considered by the Board.
FOR RESPONDENT: Manuel Rivera, Esquire, Arlington, Virginia.
FOR IMMIGRATION AND NATURALIZATION SERVICE: William W. Kummings, Appellate Counsel.
BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HOLMES, VILLAGELIU, COLE, ROSENBERG, MATHON, and GUENDELSBERGER, Board Members. Concurring Opinion: HEILMAN, Board Member.
DUNNE, Vice Chairman.
On January 14, 1991, the Board continued indefinitely the appeal in this case pending the respondent's opportunity to apply and be considered for temporary protected status under sections 302 and 303 of the Immigration Act of 1990,1 Pub. L. No. 101-649, 104 Stat. 4978, 5030-38, and pending the respondent's exercise of her legal rights under the settlement agreement in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) ("ABC"). The respondent has requested that the Board reopen proceedings in order to allow her to apply for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (1994), but has not asked that proceedings be reinstated and her appeal adjudicated.2
At issue in the present case is whether an alien whose case was administratively closed pursuant to the terms of the ABC settlement agreement can obtain reopening of his or her proceedings where no request has been made to reinstate his or her appeal before the Board or to recalendar his or her case before an Immigration Judge.
Administrative closure of a case is used to temporarily remove a case from an Immigration Judge's calendar or from the Board's docket. A case may not be administratively closed if opposed by either of the parties. Matter of Lopez-Barrios, 20 I&N Dec. 203 (BIA 1990); see also Matter of Peugnet, 20 I&N Dec. 233 (BIA 1991); Matter of Munoz-Santos, 20 I&N Dec. 205 (BIA 1990). Matter of Amico, 19 I&N Dec. 652, 654 n. 1 (BIA 1988); see also Matter of Peugnet, supra; Matter of Munoz-Santos, supra; Matter of Lopez-Barrios, supra.
In the present case, the respondent had her case administratively closed pursuant to the terms of the ABC settlement agreement. Paragraph 19 of that agreement provides in relevant part:
Unless an individual class member objects and waives the right to apply hereunder, upon signing of this agreement by the parties, Defendants agree to stay the deportation and, on or before January 31, 1991, . . . to stay or administratively close the EOIR proceedings of any class member (unless they have been convicted of an aggravated felony), whose cases were pending on November 30, 1990, until the class member has had the opportunity to effectuate his or her rights under this agreement.
The respondent advised, through counsel, that she has applied for rights pursuant to the settlement agreement but did not indicate whether those rights had been fully effectuated.
The ABC settlement agreement contemplated that the class members would have their asylum applications considered anew by the Immigration and Naturalization Service and, if denied, would then have their cases recalendared before an Immigration Judge or have their appeals reinstated before the Board. See American Baptist Churches v. Thornburgh, supra, at 806-07, para. 20. Although the agreement does not explicitly recognize that settlement registrants might have other forms of relief become available to them during the pendency of their rights under the settlement, it does contain a "savings" provision which states that "[n]othing in this agreement shall limit the right, if any, . . . for class members to exercise any independent statutory or regulatory rights they may have, without regard to this agreement, under the Immigration and Nationality Act." See American Baptist Churches v. Thornburgh, supra, at 810-11, paragraph 38. It is within this legal context that the respondent's motion to reopen was filed with the Board.
Thus, we must ascertain whether the respondent can obtain reopening of her case following its administrative closure pursuant to the terms of the ABC settlement agreement. We find that she may. The ABC settlement agreement specifically states that nothing in the agreement shall limit the right of a class member to pursue other legal rights to which he or she might be entitled under the Immigration and Nationality Act. This language is mandatory and does not indicate that such action by an alien would be curtailed by the administrative closing of each class member's case or postponed until the eventual final resolution of each class member's remedies under the settlement itself.
In addition, we find that an ABC alien's right to apply for relief from deportation is not prohibited due to the administrative closure of his or her case. Such an alien, therefore, may file a motion to reopen with the administrative body which administratively closed his or her case in order to pursue issues or relief from deportation which were not raised in the administratively closed proceedings. Such motion must comply with all applicable regulations in order for the alien's case to be reopened. 8 C.F.R. §§ 3.2, 3.8, 3.23, 103.5, 242.22 (1995).3
Furthermore, we find that an alien who has had his or her case reopened and who receives an adverse decision from an Immigration Judge in the reopened proceedings must file an appeal of that new decision, in accordance with applicable regulations, in order to vest the Board with jurisdiction to review the Immigration Judge's decision on the issues raised in the reopened proceedings. 8 C.F.R. §§ 3.38, 242.21 (1995). That appeal would be a separate and independent appeal from any previously filed appeal and would not be consolidated with an appeal before the Board regarding issues which have been administratively closed. Any appeal pending before the Board regarding issues or forms of relief from deportation which have been administratively closed by the Board prior to the reopening of the alien's proceedings will remain administratively closed. A motion to reinstate an appeal is required before issues which have been administratively closed can be considered by the Board. See also American Baptist Churches v. Thornburgh, supra, at 806-07, para. 20.
In the present case, the respondent filed a motion to reopen in order to apply for adjustment of status under section 245(i) of the Act. A motion to reopen must, among other things, state the new facts to be considered at the reopened hearing and must be supported by affidavits or other evidence. 8 C.F.R. §§ 3.8(a), 103.5, 242.22. Such a motion may not be granted unless the evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing. 8 C.F.R. §§ 3.2, 242.22.
Moreover, an alien must establish prima facie eligibility for the relief sought before a motion to reopen will be granted. See, e.g., INS v. Abudu, 485 U.S. 94 (1988); INS v. Jong Ha Wang, 450 U.S. 139 (1981) (per curiam); Matter of Coelho, 20 I&N Dec. 464 (BI...
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