Matter of Lopez-Barrios

• Decision Date: 23 May 1990
• Docket Number: Interim Decision Number 3135,A-29928921.
• Citation: 20 I&N Dec. 203
• Parties: MATTER OF LOPEZ-BARRIOS. In Deportation Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

20 I&N Dec. 203

MATTER OF LOPEZ-BARRIOS.

In Deportation Proceedings.

Interim Decision Number 3135

A-29928921.

Board of Immigration Appeals.

Decided by Board May 23, 1990.

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

(2) If an immigration judge is satisfied that the notice provided to a respondent who failed to appear for a scheduled hearing was sufficient, then a hearing in absentia may be held, but if the notice was not sufficient, then termination of proceedings, not administrative closing, is appropriate.

CHARGE:

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

ON BEHALF OF RESPONDENT: Pro se¹

ON BEHALF OF SERVICE: David M. Dixon Appellate Counsel

Mitchil Bechet General Attorney

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

In a decision dated September 14, 1989, an immigration judge administratively closed the respondent's case when the respondent failed to appear for a scheduled hearing. The Immigration and Naturalization Service appealed. The appeal will be sustained and the record will be remanded to the immigration judge for further action.

The decision of the immigration judge which the Service seeks to have reviewed is interlocutory in nature. While this Board does not ordinarily entertain interlocutory appeals, we shall consider this interlocutory appeal pursuant to our decision in Matter of Amico, 19 I&N Dec. 652 (BIA 1988). In its appeal, the Service argues that notices of scheduled hearings were sent to the respondent at an address she had provided. The Service therefore argues that the immigration judge should not have administratively closed the case but rather should have held an in absentia hearing pursuant to section 242(b) of the Immigration and Nationality Act, 8 U.S.C. § 1252(b) (1988).

As we stated in Matter of Amico, supra, administrative closing is merely an administrative convenience. It allows the removal of cases from the immigration judge's calendar in certain circumstances. However, it does not result in a final order. Thus, for instance, if it is used when a respondent fails to appear for a hearing, the respondent is able to avoid an order regarding her deportability. Id. We therefore hold that the administrative closing procedure should not be used if it is opposed by either party to the proceedings. Accordingly, administrative closing was inappropriate in this case, in the...