Matter of Amico (Board decision, April 21, 1988)

Plain-English summary

The Board sustained the Service's appeal from an immigration judge's administrative closure of a deportation case after the respondent failed to appear for a scheduled hearing. The Board held that administrative closing is only an administrative convenience and that the immigration judge should have held an in absentia hearing and entered a final order. It remanded the case with instructions to enter a final order in absentia because the respondent had received written notice and had not explained his absence. The decision also states that a section 212(c) waiver application had been filed and that earlier hearings and continuances had given the respondent opportunities to present his case.

Decision snapshot

• Cited authorities: 8 U.S.C. §§ 1251(a)(4), 1252(b), and 1182(c)
• Outcome: The Service's appeal was sustained, and the record was remanded to the immigration judge for further action and a final in absentia order.
• Key point: After earlier hearings, several continuances, and personal notice of this hearing, administrative closure was improper when the respondent failed to appear without an explanation.

Full text (BIA official public release)

Interim Decision #3063

MATTER OF AMICO

In Deportation Proceedings

A-30164305

Decided by Board April 21, 1.988

(1) "Administrative closing" is merely an administrative convenience which allows the removal of cases from the calendar in certain situations, without the entry of a final order. (2) Where, after several hearings and continuances, the respondent failed to appear at a rescheduled hearing to pursue an application for relief from deportation, the immigration judge should not have administratively closed the case, but rather should have held a hearing in absentia and entered a final order in the case. CHARGE: Other. Act of 1952—Sac 941(04 [R TT _S 6 1251(a)(4)]—Crime invnlving moral turpitude
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Pro as
Richard G. Buyniski
General Attorney

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

In a decision and order dated July 17, 1986, an immigration judge administratively closed the respondent's case because the re- spondent failed to appear for a scheduled hearing and could not be located. The Immigration and Naturalization Service appealed. The appeal will hie sustained and the record will be remanded to the im- migration judge for further action. The decision which the Service seeks to have reviewed is inter- locutory in nature. This Board does not ordinarily entertain inter- locutory appeals. See Matter of Ruiz Campuzano, 17 I&N Dec. 108
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(BIA 1979); Matter of Ku, 15 I&N Dec. 712 (BIA 1976); Matter of Sacco, 15 I&N Dec. 109 (BIA 1974). However, we have on occasion ruled on the merits of interlocutory appeals where we deemed it necessary to address important jurisdictional questions regarding the administration of the immigration laws, or to correct recurring problems in the handling of cases by immigration judges. See 652
 Interim Decision #3063

Matter of Correa, 19 I&N Dec. 130 (BIA 1984); Matter of Victorino, 18 I&N Dee. 259 (BIA 1982); Matter of Alphonse, 18 I&N Dec. 178 (BIA 1981); Matter of Wadas, 17 I&N Dec. 346 (BIA 1980); Matter of Seren, 15 I&N Dec. 590 (BIA 1976); Matter of Fong, 14 I&N Dec. 670 (BIA 1974). In. the present case, we have decided to accept this in- terlocutory appeal in order to insure proper use of the administra- tive closing procedure. The respondent is a 28 year old native and citizen of Italy. He - -

was admitted to the United States on May 21, 1971, as a lawful permanent resident. On January 13, 1981, an Order to Show Cause and Notice of Hearing (Form 1-221) was issued against him, alleg- ing that he had been convicted of armed robbery on two separate occasions. He was charged with deportability under section 241(a)(4) of the Immigration and Nationality Act, 8 U.S.C.
§ 1251(aX4) (1982), as an alien who, at any time after entry, is con- victed of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct. A deportation hearing was commenced on February 14, 1985, but was continued to enable the respondent to obtain counsel. On June 4, 1985, the respondent appeared without counseL He admitted to all the allegations in the Order to Show Cause, although he ap- peared to deny deportability. The respondent's conviction records were offered by the Immigration and Naturalization Service and were placed into evidence. The case was then continued so that the respondent could complete and file an application for a waiver under section. 212(c) of the Act, 8 U.S.C. § 1182(c) (1982). The section 212(c) application was filed on April 22, 1986. On May 2, 1986, the respondent appeared for his scheduled hearing. He indicated that he wished to be represented by counsel but that he had been unable to find an attorney to represent him without fee. The re- spondent also informed the immigration judge that his parole had been revoked because he had been arrested and charged with as- sault and battery with a deadly weapon. He claimed to be a victim of mistaken identity and asserted that he would be cleared of the charges. He requested a continuance until such time as the crimi- nal proceedings were completed. The Service objected to another continuance, but the immigration judge granted the respondent's request. At that time a written notice was hand-delivered to the re- spondent stating that his next hearing was scheduled for July 17, 1986, at 9:00 a.m. The respondent did not appear at that time. The Service was prepared to go forward with the hearing and objected to the immigration judge's administratively closing the case, but the immigration judge nevertheless issued the decision and order which are the subject of this appeal_ Interim Decision #3063

The Service argues in its appeal that the immigration judge acted incorrectly in administratively closing this case instead of holding a hearing in absentia and issuing a final decision. Under section 242(b) of the Act, 8 U.S.C. § 1252(b) (1982), a hearing may be held in absentia if an alien "has been given a reasonable opportu- nity to be present . . . and without reasonable cause fails or re- fuses to attend." See Matter of Marallag, 13 I&N Dec. 775 (MA 1971); see also Matter of Perez, 19 I&N Dec. 433 (BIA 1987). In the present case, the respondent has offered no explanation for his fail- ure to appear for the hearing. We agree with the Service That the immigration judge should not have administratively closed this case but rather should have held an in absentia hearing and issued a final order. 1 The respondent had appeared for earlier hearings at which evidence and testimony were taken and deportability established. An application for a sec- tion 212(c) waiver was duly filed. A number of continuances were granted to give the respondent every opportunity to fully present his case. The respondent personally received written notice of the July 17, 1986, hearing. Under the circumstances of this case, there is no reason why an in absentia hearing should not have been held, and, in fact, administrative closing was inappropriate. Holding a hearing allows the entry of an order which can then be executed upon the next contact with the respondent. When a case is admin- istratively closed, the respondent is allowed, by simply failing to appear, to avoid an order regarding his deportability, and the con- sequences an order of deportation could bring. We shall therefore remand this case to the immigration judge with the direction that he enter a final order in this case in absentia. ORDER: The appeal is sustained and the record is remanded to the immigration judge for further action in accordance with the foregoing decision.

The administrative closing of a case does not result in a final order. It is merely an administrative convenience which allows the removal of cases from the calendar in appropriate situations.

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