Patel, Vinesh, Esq.

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 leesburg Pike, Suite 2000 Falls Church, Virginia 20530

The Vinesh Patel Law Firm, PLLC 2730 North Stemmons Fwy., Ste. 1103 Dallas, TX 75207

OHS/ICE Office of Chief Counsel - DAL 125 E. John Carpenter Fwy, Ste. 500 Irving, TX 75062-2324

Name: MWANIKI, JOAN A 200-224-423

Date of this notice: 5/29/2014

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Enclosure

Panel Members: Miller, Neil P. Holmes, David B. Kendall-Clark, Molly

Sincerely,

DorutL c t1JVL)

Donna Carr Chief Clerk

Trane Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

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Cite as: Joan Mwaniki, A200 224 423 (BIA May 29, 2014)

U.S. Department of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A200 224 423 - Dallas, TX

In re: JOAN MWANIKI

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: Vinesh Patel, Esquire

ON BEHALF OF DHS: Dan Gividen Assistant Chief Counsel

MAY 2 9 2014

This case is before the Board. in an unusual procedural context. The Department of Homeland Security (DHS) has appealed from the Immigration Judge's March 25, 2013, decision denying the parties' jointly filed motion to administratively close the proceedings. The parties have also filed a "Joint Notice of Non-Opposition to OHS Appeal and Intent to File a Joint Brief," in which the respondent states that she does not oppose the DHS's appeal and the parties reiterate that both the respondent and OHS agree that administrative closure is the best course of action in these proceedings} The parties indicate their intent to file a joint brief in support of the DHS's appeal. The appeal will be sustained.

While these proceedings were ongoing before the Immigration Judge, the parties filed a joint motion to administratively close the proceedings. The Immigration Judge noted that he was not obliged to grant the joint motion, and instead entered an order terminating the proceedings without prejudice. While the Immigration Judge was correct that he had the authority to decline to grant a joint motion, he did not have the authority to instead terminate the proceedings. Absent a legal basis on which to terminate the proceedings, or the government's agreement to do so in the exercise of prosecutorial discretion, the Immigration Judge could not simply terminate the proceedings based on his view that termination of the proceedings without prejudice was a more appropriate resolution of the proceedings than administrative closure. See Matter of Sanchez-Herbert, 26 I&N Dec. 43, 44-45 (BIA 2012) (discussing termination of proceedings). . : . 1 : ••

•. \. J ! : .

Further, particularly given the challenging caseloads and extended dockets facing Immigration Judges, joint filings and pre-hearing agreement by the parties, while not determinative in and of themselves of the appropriate resolution of a case or an issue before an Immigration Judge, should be encouraged and given serious consideration. See Matter of Yewondwonsen, 21 l&N Dec. 1025, I 026 (BIA 1997) (noting that "the parties have an important role to play in these adminfstrative proceedings, and that their agreement on an issue

1 The filing notes that the respondent would not file a separate Notice of Appeal in an effort to lower the cost to the respondent of continuing to litigate this case. The OHS also has requested that appeals from similar decisions entered by the Immigration Judge involving other identified respondents be considered concurrently.

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Cite as: Joan Mwaniki, A200 224 423 (BIA May 29, 2014)

A200 224 423

or proper course. of action should, in most instances, be determinative"). Absent a legal impediment or matter of similar significance, or unusual circumstances not evident in the case before us, we find that the Immigration Judge erred in not granting the parties' joint motion to administratively close these proceedings.

Accordingly, we will sustain the' ·n,HS appeal and order the proceedings administratively closed. If either party to this case �shes to reinstate the proceedings, a written request to reinstate the proceedings may be made to the Board. The Board will take no further action in the case unless a request is received from one of the parties. The request must be submitted directly to the Clerk's Office, without fee, but with certification of service on the opposing party. The following order is entered.

ORDER: The appeal is sustained and the March 25, 2013, decision of the Immigration Judge is vacated.

FURTHER ORDER: The proceedings are administratively closed.

� L---

FOR THE BOARD

;! • � l. . i .

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Cite as: Joan Mwaniki, A200 224 423 (BIA May 29, 2014)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT DALLAS, TEXAS

File: A200-224-423

In the Matter of

March 25, 2013

JOAN MWANIKI ) ) ) )

IN REMOVAL PROCEEDINGS

RESPONDENT

CHARGES:

APPLICATIONS:

ON BEHALF OF RESPONDENT: VINESH PATEL, ESQUIRE P.O. Box 190114 Dallas, TX 75219

ON BEHALF OF OHS: ROZ GONZALEZ, ESQUIRE Assistant Chief Counsel Dallas, TX

ORAL DECISION OF THE IMMIGRATION JUDGE

On March 15, 2013, the parties filed a joint motion to administratively close

proceedings. The motion asserts that the Department of Homeland Security (OHS)

does not seek a removal order against the respondent at this time and it has determined

that this case is not an enforcement priority and that administrative closure is in the best

interests of the respondent.

Administrative closure is a tool used to regulate proceedings; that is, to manage

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an Immigration Judge's calendar. Matter of Avetisyan, 25 l&N Dec. 688, 694 (BIA

2012). When evaluating a request for administrative closure, it is appropriate for an

Immigration Judge to weigh all relevant factors presented in the case, including but not

limited to: (1) the reason administrative closure is sought; (2) the basis for any

opposition to administrative closure; (3) the likelihood that 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) responsibility of either party,

if any, and contributing to any current or anticipated delays; and (6) the ultimate

outcome of removal proceedings (for example, termination of the proceedings or entry

of a removal order) when the case is re-calendared before the Immigration Judge or the

appeal is reinstated before the Board. Matter of Avetisyan, at 696. Each situation must

be evaluated on the totality of the circumstances of the particular case. Matter of

Avetisyan.

After reviewing the parties' motion, the Court finds under the totality of the

circumstances that the motion to administratively close proceedings should be denied.

Instead, the Court finds, for the following reasons, that proceedings against the

respondent should be terminated without prejudice.

As noted in the motion, the Government has chosen to seek administrative

closure rather than termination because "if the respondent were to engage in future

misconduct or otherwise become an enforcement priority re-calendaring of proceedings

is the most efficient and simplest way to continue with the case." There are two

problems with basing a request for administrative closure on the ease of reinstating

proceedings against the respondent. First, it is based on a purely speculative event as

it is totally dependent on whether the respondent engages in future misconduct or

otherwise becomes an enforcement priority. The Board has held that "it would not be

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appropriate for an Immigration Judge or the Boar to administratively close proceedings

if the request is based on a purely speculative event or action. Matter of Avetisyan, 25

l&N Dec. at 696. Here, there is no way for the Court (or the parties) to know whether

the case will eventually be re-calendared or not. Thus, the Court finds that it would not

be appropriate to consider the case re-calendared (for the Government) as a factor in its

analysis as to whether to grant administrative closure.

The second reason the Court will decline to consider the ease and efficiency (for

the Government) of a potential re-calendaring is because the purpose of administrative

closure is to ease the strain on the Court's docket and not for the convenience of either

party. As the Board has noted, administrative closure is a procedural tool created for

the convenience of the Immigration Court and the Board and is utilized throughout

Federal Court as a tool for managing a Court's docket. Matter of Avetisyan, 25 l&N

Dec. at 688, 690 at note two. Giving that the underlying reason for administrative

closure is to manage the Court's docket. The Court is not obliged to administratively

close proceedings for the convenience of the Government. Instead, given that the

Government no longer wishes to proceed with charges against the respondent (and

notwithstanding there has been an admission to the factual allegations and to the

charge) , the Court finds that the best course of action is to terminate proceedings

without prejudice. Not only would terminating proceedings be more efficient in

managing the Court's docket, it would also be in the best interest of fairness to the

respondent because, rather than holding proceedings in abeyance pending some future

(possible) action by the Government (including a DACA request for deferred action),

termination would provide at least some modem of finality (unless and until the

Government decides to again pursue charges against the respondent). The Court is

also concerned that administrative closure would place the respondent in a holding

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pattern as the motion does not provide even a general time frame for administrative

closure. Matter of Avetisyan, 25 l&N Dec. at 692 (administrative closure is used to

temporarily remove a case from the Immigration Judge's active calendar}. Contrary to

the statements in the motion, this would not be in the best interests of the respondent.

Thus, it appears to the Court that termination would be more efficient and effective and

a fair way to proceed for both the Court and the respondent. If in the future the

Government wishes to place the respondent in removal proceedings, it may either issue

a new Notice to Appear or file a motion to re-open with the Court.

The Office of the Chief Immigration Judge recently issued a memorandum on

administrative closure. See Operating Policy and Procedure Memorandum 13-01

(OPPM 13-01} issued on March 7, 2013. That OPPM provides that administrative

closure, under the standards set forth in Matter of Avetisyan, provides Judges with a

powerful tool to help them manage their dockets by helping to focus resources on

matters that are ripe for resolution. Given the large caseload in our Courts, Judges

should consider making full of that authority. The Court embraces the OPPM's focus on

managing the Court's large caseload and finds that terminating proceedings without

prejudice further goes outlined in the OPPM, as it will help manage the Court's caseload

and allow it to focus on matters that are ripe for resolution. In any event, although the

OPPM encourages administrative closure, it also provides that nothing in this OPPM is

intended to replace independent research, the application of case law and regulation to

individual cases, or the decision independence of Immigration Judge's as defined in 8

C.F.R. 1003.10. See OPPM; See also Matter of Avetisyan (finding that Court must not

advocate the responsibility to exercise independent judgment and discretion irrespective

of the parties agreement or disagreement on whether administrative closure is

appropriate); See also 8 C.F.R. 1003.10(b) (Immigration Judges shall exercise their

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independent judgment and discretion and may take any action consistent with their

authority under the Act and regulations that is appropriate and necessary). Thus, under

the totality of the circumstances outlined in the Matter of Avetisyan and in the Court's

independent judgment and discretion, the Court finds, for the reasons stated above, that

the proper course of action is to terminate proceedings without prejudice to the

Government. Accordingly the Court will deny the motion to administratively close

proceedings and will terminate proceedings against the respondent without prejudice.

Accordingly, the following order shall enter:

ORDER

IT IS HEREBY ORDERED that the joint motion to administratively close

proceedings is denied.

IT IS FURTHER ORDERED that removal proceedings against the respondent be

terminated without prejudice.

March 25, 2013

A200-224-423

DEITRICH H. SIMS Immigration Judge

5 March 25, 2013

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CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE DEITRICH H. SIMS,

in the matter of:

JOAN MWANIKI

A200-224-423

DALLAS, TEXAS

was held as herein appears, and that this is the original transcript thereof for the fife of

the Executive Office for Immigration Review.

FREE STATE REPORTING, lnc.-2

JUNE 19, 2013

(Completion Date)

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