Immigration removal proceedings typically end in one of two ways: the immigrant either wins his case and is allowed to remain in the United States, or if he loses his case in Immigration Court, an Order of Removal is entered against him. However, a third, little known option called Administrative Closure may help certain individuals avoid being deported from the United States.
Administrative Closure is a legal mechanism, through which a pending case is removed from the Immigration Court’s calendar indefinitely. If Administrative Closure is granted, no final merits hearing is scheduled for the case, and no Order of Removal is entered against the immigrant, however the individual is still considered to be in removal proceedings and any applications for relief, such as asylum or cancellation of removal, are considered to be pending before the Immigration Court.
What are the advantages of applying?
You may be wondering, “Why would I seek Administrative Closure in my case, if I have an opportunity to present my case before the Immigration Judge at my final merits hearing?” Administrative Closure is most appropriate when you have a relatively low chance of winning your case in Immigration Court and you want to avoid having an Order of Removal entered against you. For example, if you have an asylum case and you filed for asylum outside the one-year deadline, you have limited documentation to support your claim, the Asylum Office made a determination that you were not credible or that there were material inconsistencies in your testimony or documents, winning before the Immigration Judge could be very difficult. In cases like this, the immigrant has two options: pursue the weak case before the Immigration Judge and risk being ordered removed, or apply for Administrative Closure of the case, and, if successful, avoid an Order of Removal. Avoiding an Order of Removal offers advantages beyond the obvious advantage of not being subject to removal from the United States. If an individual whose case has been Administratively Closed later marries a US citizen or has an approved Family Petition (Form I-130) from a US citizen child, the procedure for obtaining his or her green card will be far less complex than if he or she was subject to an Order of Removal
Is it a valid immigration status that allows me to travel and return to the United States?
No, Administrative Closure is not a valid immigration status. However, it does mean that the US government is not actively pursuing your removal from the United States at this time. You should not travel outside the US if you have been granted Administrative Closure, because you may not be able to return to the US.
Can I get a work authorization?
Maybe. Certain individuals, including those whose applications for relief (asylum, cancellation, etc.) have not been withdrawn prior to Administrative Closure, may be eligible to receive and/or renew their Employment Authorization Documents. Not all applicants will be eligible, however. Eligibility will depend on the individual facts and history of each applicant’s case.
Who might be eligible for Administrative Closure?
Administrative Closure is a discretionary form of relief. This means that the government weighs the positive factors in your case against the negative factors and reaches a decision based on that balancing test.
Positive factors, which weigh in favor of granting Administrative closure, include the following:
- Long-term residence in the US
- Relatives in the US, especially if they are members of your immediate family and are US citizens or Lawful Permanent Residents
- Community ties in the US, such as volunteering in your local community, church attendance, membership in local clubs and organizations, education obtained in the US, establishment of a job-creating business in the US
- Employment and the payment of US taxes
- Absence of ties to home country or inability to speak the local language
- Dangerous conditions in the home country
Factors, which will generally weigh against granting Administrative Closure include the following:
- Criminal convictions, even for minor crimes
- Serious and repeated violations of immigration law (illegal re-entry, Visa Waiver overstay, etc.)
- Immigration fraud, including filing false documents or providing false testimony
- Threats to national security and public safety (membership in or support of terrorist groups, gangs, etc.)
How do I apply for Administrative Closure?
You can apply for Administrative Closure of your case by submitting a request for Administrative Closure to the Office of the Chief Counsel, typically in writing with supporting evidence, documenting the positive factors in your case. A detailed cover letter, summarizing the evidence and the nature of your request may be appropriate.
Immigration law is incredible complex and there is no “one-size-fits” all solution. Before applying for any form of relief, it is essential that you fully understand the advantages and drawbacks of doing so. One of the key disadvantages to Administrative Closure is that the government can restart the removal proceedings against you by making a motion to the Court. However, based on currently available information, it does not appear that the government has the resources or the intention to recalendar administratively closed cases. Only an immigration attorney with experience handling removal cases can properly advise you of your chances of winning your case or the chances of winning your request for Administrative Closure, and you should not make a decision regarding an application for Administrative Closure prior to receiving such advice.
It is further worth noting that the government’s discretionary policies are subject to change, and it is possible that the policy for requests for Administrative Closure will change in favor of a much stricter approach under the Trump administration. Therefore, individuals who are presently in removal proceedings and may be eligible for Administrative Closure of their case are encouraged to seek the advice of a qualified attorney regarding this matter prior to President-elect Trump taking office on January 20, 2017.