Post on 21-Jul-2016
description
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For more unpublished BIA decisions, visit www.irac.net/unpublished
Imm
igrant & Refugee A
ppellate Center | w
ww
.irac.net
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.
Imm
igrant & Refugee A
ppellate Center | w
ww
.irac.net
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 .
2
Imm
igrant & Refugee A
ppellate Center | w
ww
.irac.net
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
1
Imm
igrant & Refugee A
ppellate Center | w
ww
.irac.net
(
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
A200-224-423 2 March 25, 2013
Imm
igrant & Refugee A
ppellate Center | w
ww
.irac.net
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
A200-224-423 3 March 25, 2013
Imm
igrant & Refugee A
ppellate Center | w
ww
.irac.net
! .
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
A200-224-423 4 March 25, 2013
Imm
igrant & Refugee A
ppellate Center | w
ww
.irac.net
(
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
Imm
igrant & Refugee A
ppellate Center | w
ww
.irac.net
I P
( '
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)
Imm
igrant & Refugee A
ppellate Center | w
ww
.irac.net