U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 leesburg Pike, Suite 2000 Falls Cliurcli, Virginia 22041

TARPEH, JOHN NEEWALY INMATE#: KA-7232 (A078 780 390) INMATE HOUSING: S30 191 FYOCK ROAD INDIANA, PA 15701

OHS LIT./York Co. Prison/YOR 3400 Concord Road York, PA 17402

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Name: TARPEH, JOHN NEEWALY

A078-780-390

Date of this notice: 5/21/2012

Enclosed is a copy of the Board's decision and order in the above-referenced ca5e. Sincerely,

Donna Carr Chief Clerk

Enclosure

Panel Members: Miller, Neil P.

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: John Neewaly Tarpeh, A078 780 390 (BIA May 21, 2012)

U.S Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review Falls Church, Virginia 22041

FiJe: A078 780 390 - York, PA In re: JOHN NEEWALYTARPEH IN REMOVAL PROCEEDINGS CERTIFICATION ON BEHALF OF RESPONDENT: CHARGE: Notice: Sec. Pro se

Date:

MAY .21 2012"

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237(a)(2)(A)(iii), I&N Act (8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony as defined in section 101(a)(4 3)(A), I&N Act [8 U.S.C. 110l(a)(43)(A)] 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony as defined in section 101(a)(43)( F), l&N Act [8 U .S.C. 110l(a)(43){F )] 237(a)(2)(A)(iii), I&N Act (8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony as defined in section 10l(a)(43){U), I&N A ct [8 U.S.C. 110l(a)(43)(U)] 237(a)(2)(C), I&N Act [8 U.S.C. 1227(a)(2)(C)] Convicted of firearms or destructive device violation

Sec.

Sec.

Sec.

APPLICATION: Administrative closure

The respondent has appealed from an Immigration Judge's decision dated February 1, 2012, administratively closing his proceedings pursuant to a motion for administrative closure filed by the Department of Homeland Security (DHS). Because administrative closure does not result in a final order, the respondent's appeal is interlocutory in nature. See Matter ofAvetisyan, 25 I&N Dec. 688, 695 (BIA 2012). The respondent's appeal also is untimely.1 To avoid piecemeal review of the myriad questions that may arise in the course of proceedings before us, we ordinarily do not entertain interlocutory appeals. Matter ofAvetisyan, supra, at 688; Matter ofRuiz-Campuzano, 17 I&N Dec. 108 (BIA 1979). The respondent's case, however, raises important questions regarding fairness, notice, and the administration of proceedings. We therefore will consider his interlocutory appeal. See Matter of Avetisyan, supra, at 688-89 (discussing instances in which we have considered interlocutory appeals). The respondent did not file his appeal until April 26, 2012, more than 2 months after the hnmigration Judge issued his ruling.
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Cite as: John Neewaly Tarpeh, A078 780 390 (BIA May 21, 2012)

A078 7.80 390 For similar reasons, we will take the respondent's appeal on certification. See 8 C.FR. 1003.l (c). Neither the statute nor the regulations governing appeals grant us the authority to extend the time for filing an appeal. Matter ofLiadov, 23 I&N Dec. 990, 993 (BIA 2006). When a case involves exceptional circumstances, however, we have certified it to ourselves under 8 C.F.R. 1003.l (c). Id. The respondent's case involves exceptional circumstances. In particular, it is not clear from the record that the respondent received proper notice of the procedures to follow to contest the Immigration Judge's decision to administratively close his proceedings. It also is not clear that the respondent was notified of the deadline for filing a motion to reinstate his proceedings or for filing an appeal. Accordingly, we will consider the respondent's interlocutory appeal by way of certification.

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Avetisyan, supra,

On appeal, the respondent contests the administrative closure of his proceedings. In Matter of we held that the approval of both parties was not required for administrative closure. The record in this case, however, does not indicate that the respondent was given an opportunity to express his views on the DHS' motion to administratively close his case before the Immigration Judge made a decision. The record contains a notice for a hearing on January 4, 2012, and the recording from this hearing indicates that the Immigration Judge granted the respondent a continuance until February 15, 2012, to obtain an attorney. On January 24, 2012, the DHS filed a motion for administrative closure with the Immigration Judge. The Immigration Judge ruled on this motion on February 1, 2012, but there is no hearing notice or digital recording for this date, and it is not clear that the respondent was present for any hearing that might have been held on February 1, 2012. The respondent therefore does not appear to have had an opportunity to present any arguments he might have had against administrative closure of his proceedings.
In addition, the record does not indicate that the Immigration Judge, in compliance with our recent ruling in Matter of Avetisyan, supra, weighed and considered all the relevant factors in granting the DHS' motion. In Matter ofAvetisyan, supra, which we issued only 1 day before the Immigration Judge ruled on the DHS' motion in this case, we found that, in determining whether administrative closure of proceedings is appropriate, an Immigration Judge or this Board should weigh all relevant factors including but not limited to (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. Matter ofAvetisyan, supra, at 696.

Some of the above factors might not be relevant to.the respondent's case, and there may be other factors that are relevant but were not discussed in Matter ofAvetisyan. Moreover, if neither party had objected to administrative closure, a remand for a more detailed ruling in compliance with Matter ofAvetisyan, supra, might not have been necessary. The respondent, however, has objected to his proceedings being closed. A more detailed evaluation of the DHS' motion to administratively close proceedings in accordance with the standard set forth in Matter ofAvetisyan, supra, therefore is required. Accordingly, we remand the record to the Immigration Judge for further consideration of the motion and for a more detailed decision.

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Cite as: John Neewaly Tarpeh, A078 780 390 (BIA May 21, 2012)

A078 780 390

In remanding the respondent s case, we also express some concerns regarding the procedures that

appear to have been followed in this case. As we noted above, it does not appear that the respondent was given an opportunity to address the to be given this opportunity. In addition, it does not appear that the respondent, who was pro se, received proper notice regarding the steps he could take to contest the Immigration Judge's decision. Neither the Immigration Judge's decision nor the transmittal sheet that accompanied this decision when it was mailed to the respondent contained instructions for filing a motion to reinstate or for filing an appeal.
See Matter ofAvetisyan, supra, at 695 (discussing options available to a party after an Immigration

DHS' motion for administrative closure before the

Immigration Judge ruled on this motion. In the interest of fairness, each party to a proceeding needs

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Judge or this Board administratively closes proceedings). Because many aliens

are

unrepresented

and unfamiliar with the intricacies of immigration law and procedure, an order granting administrative closure generally should include a paragraph stating that, if either party to the case wishes to reinstate the proceedings, a written request to reinstate the proceedings should be made to the official who administratively closed the proceedings (either the Immigration Judge or this Board). 2 The order then should conclude with a final statement indicating that the Immigration Judge or the Board, depending on which body closed the proceedings, will take no further action in the case unless a request is received from one of the parties. The form transmittal letters used by many Immigration Courts also can, and probably should, include the above information. The form sent to the respondent included fairly detailed instructions for aliens with final orders of removal, but the form only stated "Other: IJ Order Granting Admin Closure" to describe the decision it was transmitting in the respondent's case. If the form had included instructions describing how to request reinstatement or to contest the Immigration Judge's decision, the respondent, who is pro se, would have had clear guidance regarding the next step to take. In summary, we find that the parties to a proceeding need to be given an opportunity to address a motion for administrative closure before a decision is made on the motion. If either party objects, the official addressing the motion (either an Immigration Judge or this Board) needs to conduct the type of analysis described in Matter of Avetisyan, supra, and issue a complete decision on the motion. The Immigration Judge or the Board also needs to provide the parties with sufficient advisals regarding the steps to take to contest a ruling or to reinstate proceedings and the deadlines for each action. Because the respondent in this case does not appear to have had the opportunity to object to the administrative closure of his proceedings and because the decision to close his proceedings does not weigh the various factors at issue in that ruling, we remand the record to the Immigration Judge to consider the respondent's arguments, together with those of the DHS, and to issue a new decision. In taking this step, we express no opinion regarding the ultimate resolution of the DHS' motion for administrative closure.

The decision also could include a reminder of the requirement to serve a copy of any request for

reinstatement on the opposing party.

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Cite as: John Neewaly Tarpeh, A078 780 390 (BIA May 21, 2012)

A.078 780 390 ORDER: The Immigration Judge's decision dated February 1, 2012, is vacated, and the record is remanded for further proceedings consistent with this order and for the entry of a new decision.

FOR THE BOARD

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4
Cite as: John Neewaly Tarpeh, A078 780 390 (BIA May 21, 2012)