This morning we won an Eighth Circuit appeal on the question of whether federal courts can review the process of “administrative closure.” Our client had sought “administrative closure” because he fit the profile President Obama had described as a hard-working immigrant who had been in the United States for many years, paid his taxes, and didn’t get into trouble. Despite a valiant effort by his Immigration Court attorney Valerie Sprout, The Immigration Judge denied his request, and the BIA essentially rubber-stamped his appeal (failing to address a request that the BIA use its own power to administratively close the case). We became involved after the BIA appeal when it was time to take the case to the Eighth Circuit.

In February, 2016 the Kansas City star profiled our client, noting he would likely be eligible for the President’s “DAPA” program, which was at that time on hold, but that ICE was choosing to spend its resources deporting him anyway (rather than focus on dangerous criminals or higher priority immigrants). However, he voluntarily surrendered at the request of ICE and was deported to Mexico.

The appeal raises two issues, and it is an important decision going forward for future immigrants challenging their cases in federal court:

1. The Eighth Circuit Has Jurisdiction to Review Administrative Closure Decisions

Although courts had traditionally concluded they lacked authority to review administrative closure determinations, the Eighth Circuit for the first time has decided that it does have jurisdiction to review administrative closure decisions.

The Eighth Circuit had previously held that it lacked jurisdiction to review administrative closure decisions because there wasn’t any meaningful standard to review them by. Hernandez v. Holder, 606 F.3d 900, 904 (8th Cir. 2010). That was because at the time “administrative closure” required the prosecutor to consent (it doesn’t any longer) and the BIA hadn’t really explained when the courts should and shouldn’t administratively close cases (and thus the Circuit Courts had a hard time determining if the agency adjudicators had done it wrong or not).

But in 2012 the BIA changed the law regarding administrative closure. It issued a decision offering a meaningful standard for deciding when to administratively close and it said the prosecutor no longer had to consent before the agency could close a case. Matter of Avetisyan, 25 I. & N. Dec. 688, 692 (BIA 2012). That was a big change because it dispensed of the reason the Eighth Circuit and other circuits had given for declining to review these orders.

Given the new standard announced by Avetisyan, the Eighth Circuit now says it has jurisdiction to review administrative closure decisions.

2. The BIA is Required to Adjudicate Requests for Administrative Closure Filed With the Board

The Avetisyan decision provided one additional, equally important change: it said the BIA could administratively close cases on its own – that the power to close cases wasn’t limited to Immigration Judges. Thus, if an Immigration Judge says no to such a request, the immigrant has the right to both appeal the Immigration Judge’s decision and to ask the BIA to use its own power to close the case.

There are several reasons to make this separate request. First, the BIA, as an appellate body, reviews Immigration Judge decisions with a certain amount of deference. That means as long as the judge applied the right factors and analyzed the evidence the BIA often will decline to reverse an Immigration Judge’s decision even if the BIA member might disagree with it. That’s just how appeals work. Second, asking the BIA member to close the case using her own power puts the decision into the hands of the BIA member. And sometimes a second set of eyes can make all the difference.

The problem in this case is that Mr. Gonzalez-Vega asked the BIA to administratively close the case on its own, but the BIA didn’t address that request. The Eighth Circuit explained that when the BIA doesn’t even rule on a request like this, it’s not difficult to determine that the BIA should at least be required to address it.

Going Forward

Unfortunately, we still have a lot of work to do. Because our client was deported, we now have to work to bring him back to the United States so that he can continue to assist with his appeal. As the Supreme Court explained in Nken v. Holder, just filing an appeal doesn’t always mean you get to stay, but if you win the appeal you get to come back to continue litigating your case. In practice, the coming back has been more difficult than is described in Nken.

We will also use this decision to litigate other cases where the BIA and Immigration Judges deny administrative closure for reasons that are inconsistent with Matter of Avetisyan. In those cases, it might make sense to take an appeal to the Eighth Circuit, now that it has concluded it has jurisdiction to review them.