Patel, Vinesh, Esq.

U.S. Department of Justice

Executive Ofce fr Imigation Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leeburg Pike, Suite 2000
Fals Church, Vrginia 20530
The Vinesh Patel Law Firm, PLLC
2730 Norh Stemmons Fwy., Ste. 1103
Dallas, TX 75207
OHS/ICE Ofice 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-refrenced case.
Enclosure
Panel Members:
Miller, Neil P.
Holmes, David B.
Kendall-Clark, Molly
Sincerely,
Do c t
Donna Car
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For more unpublished BIA decisions, visit www.irac.net/unpublished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 Ofce fr Immigation Review
Decision of te Board of Imigation Appeals
Falls Church, Virginia 20530
File: A200 224 423 - Dallas, TX
In re: JOAN MWANIKI
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RSPONDENT: Vinesh Patel, Esquire
ON BEHALF OF DHS: Da Gividen
Assistant Chief Counsel
MAY 2 9 2014
This case is befre the Board. in an unusual procedural context. The Departent of
Homeland Security (DHS) has appealed fom the Immigration Judge's March 25, 2013, decision
denying the paies' jointly fled motion to administatively close the proceedings. The paries
have also fled 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 administative closure is the best course of action in
these proceedings} The paries indicate their intent to fle a joint brief in suppor of the DHS's
appeal. The appeal will be sustained.
While these proceedings were ongoing befre the Immigation Judge, the paies fled a joint
motion to administatively close the proceedings. The Imigration Judge noted that he was not
obliged to gant the joint motion, and instead entered an order terinating the proceedings
without prejudice. While the Immigration Judge was corect that he had the authority to decline
to gat a joint motion, he did not have the authority to instead terinate the proceedings.
Absent a legal basis on which to terminate the proceedings, or the goverent's agreement to do
so in the exercise of prosecutorial discretion, the Immigation Judge could not simply terinate
the proceedings based on his view that termination of the proceedings without prejudice was a
more appropriate resolution of the proceedings tha administative closure. See
Matter of Sanchez-Herbert, 26 I&N Dec. 43, 44-45 (BIA 2012) (discussing terination of
proceedings).
. : . 1 :
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:
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Furer, paricularly given the challenging caseloads and extended dockets fcing
Immigation Judges, joint flings and pre-hearing agreement by the parties, while not
determinative in and of themselves of the appropriate resolution of a cae or an issue befre an
Immigation Judge, should be encouaged and given serious consideration. See
Matter of Yewondonen, 21 l&N Dec. 1025, I 026 (BIA 1997) (noting that "the paries have an
important role to play in these adminfstrative proceedings, and that their agreement on an issue
1 The fling notes that the respondent would not fle a separate Notice of Appeal in an efort to
lower te cost to te respondent of continuing to litigate this case. The OHS also has requested
that appeals fom similar decisions entered by the Immigration Judge involving other identifed
respondents be considered concurently.
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Cite as: Joan Mwaniki, A200 224 423 (BIA May 29, 2014)
A00 224 423
or proper course. of action should, in most instances, be deterinative"). Absent a legal
impediment or mater of simila signifcance, or uusual circumstaces not evident in the case
befre us, we fnd that the Immigration Judge erred in not ganting te paies' joint motion to
administratively close these proceedings.
Accordingly, we will sustain te' nS appeal and order the proceedings administatively
closed. If eiter pay to this case shs to reinstate the proceedings, a writen request to
reinstate the proceedings may be made to the Board. The Boad will take no fher action in the
case unless a request is received fom one of the paies. The request must be submitted directly
to the Clerk's Ofce, without fe, but with cerifcation of service on the opposing pay. The
fllowng order is entered.
ORDER: The appeal is sustained and the Mach 25, 2013, decision of the Immigration Judge
is vacated.
FURTHER ORER: The proceedings are administratively closed.
L
FOR THE BOARD
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Cite as: Joan Mwaniki, A200 224 423 (BIA May 29, 2014)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRTION 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 paries filed a joint motion to administratively close
proceedings. The motion assers 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 fr administrative closure, it is appropriate for an
Immigration Judge to weigh all relevant fctors presented in the case, including but not
limited to: (1) the reason administrative closure is sought; (2) the basis fr 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 pary,
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 befre 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.
Afer reviewing the paries' motion, the Cour finds under the totality of the
circumstances that the motion to administratively close proceedings should be denied.
Instead, the Cour fnds, fr the fllowing 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 otherise become an enfrcement priority re-calendarng of prceedings
is the most efcient 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
otherise becomes an enfrcement priority. The Board has held that "it would not be
A200-224-423 2 March 25, 2013
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apprpriate 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 fr the Court (or the paries) to know whether
the case will eventually be re-calendared or not. Thus, the Cour finds that it would not
be appropriate to consider the case re-calendared (fr the Goverment) as a factor in its
analysis as to whether to grant administrative closure.
The second reason the Cour will decline to consider the ease and efciency (for
the Government) of a potential re-calendaring is because the purpose of administrative
closure is to ease the strain on the Cour's docket and not fr the convenience of either
party. As the Board has noted, administrative closure is a prcedural tool created fr
the convenience of the Immigration Cour and the Board and is utilized throughout
Federal Cour as a tool fr managing a Cour'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 Cour's docket. The Cour 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 Cour finds that the best course of action is to terminate proceedings
without prejudice. Not only would terminating proceedings be more efficient in
managing the Cour'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 fr deferred action),
termination would provide at least some modem of fnality (unless and until the
Goverment decides to again pursue charges against the respondent). The Cour is
also concerned that administrative closure would place the respondent in a holding
A200-224-423 3 March 25, 2013
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patter as the motion does not prvide 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 Cour that termination would be more eficient and effective and
a fair way to proceed fr both the Court and the respondent. If in the future the
Goverment 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 Cour.
The Ofice of the Chief Immigration Judge recently issued a memorandum on
administrative closure. See Operating Policy and Prcedure Memorandum 13-01
(OPPM 13-01} issued on March 7, 2013. That OPPM provides that administrative
closure, under the standards set forh in Mater of Avetisyan, provides Judges with a
powerul 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 Cours, Judges
should consider making full of that authority. The Cour embraces the OPPM's focus on
managing the Cour's large caseload and finds that terminating proceedings without
prejudice furher goes outlined in the OPPM, as it will help manage the Cour's caseload
and allow it to focus on maters 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 paries agreement or disagreement on whether administrative closure is
apprpriate); See also 8 C.F.R. 1003.10(b) (Immigration Judges shall exercise their
A200-224-423 4 March 25, 2013
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independent judgment and discretion and may take any action consistent with their
authority under the Act and regulations that is apprpriate and necessar). Thus, under
the totality of the circumstances outlined in the Matter of Avetisyan and in the Cour's
independent judgment and discretion, the Cour finds, for the reasons stated above, that
the proper course of action is to terinate proceedings without prejudice to the
Government. Accordingly the Cour will deny the motion to administratively close
proceedings and will terminate prceedings 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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I P
(
'
CERTIFICATE PAGE
I hereby cerif that the attached proceeding befre 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 orginal transcript thereof for the ffe of
the Executive Ofice fr Immigration Review.
FREE STATE REPORTING, lnc.-2
JUNE 19, 2013
(Completion Date)
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