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court to interpret the regu- opposes. The BIA deter- sure; (5) the responsibility BIA determined that the has been replaced by Jus-
lation in a way that would mined that there was fault of either party, if any, in circumstances supported tice Barrett, who wrote the
alleviate the government’s in the general rule stated contributing to any cur- the exercise of the IJ’s au- opinion in Meza-Morales
concern. in Matter of Gutierrez, 21 rent or anticipated delay; thority to administratively v. Barr when she was a
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Given that there are I&N Dec. 479 (BIA 1996) and (6) the ultimate out- close the case. judge on the Seventh Cir-
three circuits that have that “a case may not be ad- come of removal proceed- The Biden administra- cuit, which overruled Cas-
overruled Castro-Tum on ministratively closed if op- ings (for example, termi- tion should thus refrain tro Tum. Hence, despite
the ground that there is no posed by either party.” The nation of the proceedings from appealing Sanchez the change in composition
ambiguity in the regulation BIA, in overruling Matter or entry of a removal or- to the Supreme Court of the Supreme Court,
authorizing administrative of Gutierrez, held that der) when the case is re- notwithstanding the cir- there is still a very strong
AG Garland restore the of independent judgement been pending for a long either part of the majori- hold Castro Tum. It would tTV Download ZingoTV App
From Smar
closure, with the Supreme affording absolute defer- calendared before the IJ cuit split. As a practical likelihood that the Biden
Court’s decision in Kisor v. ence to a party’s objection or the appeal is reinstated matter, the administra- administration will lose
Wilkie aiding this interpre- is improper and that the IJ before the BIA. In Aveti- tion may likely lose since big in the Supreme Court
tation, it is about time that or the BIA, in the exercise syan, the visa petition had all the nine justices were if it asks the court to up-

BIA’s decision in Matter and discretion, has the au- time through no appar- ty or concurring opinions be much easier, and more
of Avetisyan and withdraw thority to administratively ent fault of the respon- in Kisor v. Wilkie, which in line with the Biden ad-
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Castro Tum. As argued in close a case, regardless dent or her husband, and aids in finding that there ministration’s thinking on
our prior blogs, here and of party opposition, if it there was no obvious im- is no need to give Auer bringing fairness to immi-
here, Matter of Avetisyan is otherwise appropriate pediment to the approv- deference to the govern- gration proceedings that
makes more sense than under the circumstances. al of the visa petition or ment’s interpretation of Trump undermined, for
Castro Tum. In Matter of The BIA further held that ability of the respondent 8 CFR 1003.1(d)(1)(ii) & AG Garland to withdraw
Avetisyan, an IJ repeat- when evaluating a request to successfully apply for 1003.10(b). Justice Gins- Castro Tum and reinstate
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edly continued a removal for administrative closure, adjustment of status. The burg is sadly no more and Avetisyan.
hearing pending the filing the IJ should weigh all rel- _________________________________________________________________________________________________
and adjudication of a fam- evant factors presented Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing
ily-based immigrant visa in the case, including, but Partner of Cyrus D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s
Administrative Litigation Task Force; AILA’s EB-5 Committee; former chair of AILA’s Ethics
petition. During the final not limited to: (1) the rea- Committee; special counsel on immigration matters to the Departmental Disciplinary Committee,
hearing, despite DHS’s son administrative closure Appellate Division, First Department, New York; member of the ABA Commission on Immigra-
opposition, the IJ granted is sought; (2) the basis for tion; board member of Volunteers for Legal Services and board member of New York Immigration
the respondent’s motion any opposition to admin- Coalition. Mr. Mehta is the former chair of the Board of Trustees of the American Immigration
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to administrative closure, istrative closure; (3) the Council and former chair of the Committee on Immigration and Nationality Law of the New
York City Bar Association. He is a frequent speaker and writer on various immigration-related
and the DHS filed an inter- likelihood the respondent issues, including on ethics, and is also an adjunct professor of law at Brooklyn Law School, where
locutory appeal. The issue will succeed on any peti- he teaches a course entitled Immigration and Work. Mr. Mehta received the AILA 2018 Edith
here was whether an IJ or tion, application, or other Lowenstein Memorial Award for advancing the practice of immigration law and the AILA 2011
the BIA has the authority action he or she is pur- Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation
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to administratively close suing outside of removal in the immigration field. He has also received two AILA Presidential Commendations in 2010
and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by
a case when one of the proceedings; (4) the antic- Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and
parties to the proceeding ipated duration of the clo- Chambers Global 2019 in immigration law, among other rankings.

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