Vahora v. Holder

In the

United States Court of Appeals
For the Seventh Circuit

No. 09-3033

K HUBEB V AHORA,
Petitioner,
v.

E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.

Petition for Review of an Order
of the Board of Immigration Appeals.
A098-371-817

A RGUED A PRIL 21, 2010—D ECIDED N OVEMBER 15, 2010

Before C UDAHY, R IPPLE and H AMILTON, Circuit Judges.
R IPPLE, Circuit Judge. Khubeb Vahora, a native and
citizen of India, sought asylum in the United States based
on his Muslim faith. The Immigration Judge (“IJ”)
denied asylum and granted voluntary departure, and the
Board of Immigration Appeals (“BIA” or “Board”) af-
firmed. Mr. Vahora now petitions for review of the
BIA’s decision. He contends that the Board erred in
2 No. 09-3033

determining that he had not been subjected to past perse-
cution and that he had not established a well-founded
fear of future persecution. He also submits that the IJ did
not fulfill the regulatory obligation to advise him of
avenues of relief other than asylum and that his
case should have been closed administratively and
joined with a case involving his parents. For the reasons
set forth in this opinion, we deny the petition for review.

I
BACKGROUND
A.
In 2002, Mr. Vahora, then thirteen years old, lived with
his grandparents in the Gujarat province of India while
his parents were abroad. Although he attended school
in Anand during much of this period, he was staying at
his grandparents’ home in Ahmedabad on March 2,
2002. That evening, Mr. Vahora heard loud noises coming
from outside the home and chants urging the killing of
Muslims. Muslim homes and businesses in Ahmedabad
were being set on fire by a rioting Hindu crowd.1 At his

1
Secondary sources confirm the rioting. According to a Home
Office Report cited by the IJ in Mr. Vahora’s proceedings, an
attack on a train carrying Hindu activists at the end of
February 2002 left 58 dead and 43 injured and sparked re-
taliatory violence throughout Gujarat. “In the State capital,
Ahmedabad, crowds looted and burned Muslim-owned shops,
(continued...)
No. 09-3033 3

grandfather’s instruction, Mr. Vahora fled from the
home through the back door. As he looked in one direc-
tion, Mr. Vahora saw a Muslim bakery burning. He ran
from the mob that he described as carrying “burning
wood,” A.R. 116, and shortly came upon two Hindu
men holding down a Muslim man while a third Hindu
man stabbed him. Mr. Vahora recognized all of the perpe-
trators and the victim and could identify them by
name. The Hindu men saw him standing there and spoke
to him. He did not respond, but instead turned and ran
while the men pursued him. He eventually came upon
a rickshaw, which carried him to a temporary camp for
fleeing Muslims. He learned later that his grandparents’
home was among those that had been burned.
After he had spent two days in the camp, Mr. Vahora’s
grandparents located him. The family remained there
for a few more days, then relocated to Anand. After

1
(...continued)
hotels, restaurants, and petrol stations. In one incident, 38
Muslims were said to have burnt to death when a mob
isolated and burnt down 6 bungalows.” A.R. 157 (U.K. Home
Office, Country of Origin Information Report, India, 2006).
According to the report, by the 12th of March, violence had
claimed some 700 lives and an estimated 100,000 Muslims
were in relief camps. Id. The Home Office Report also cites a
National Human Rights Commission report, not itself a part
of the record, which apparently concluded that the govern-
ment of India was at least tacitly complicit and guilty of a
“comprehensive failure . . . to control the persistent violation
of rights.” Id.
4 No. 09-3033

several weeks, the family sent Mr. Vahora to Mumbai to
live with an aunt and uncle, where he stayed for several
months. He testified that his grandparents told him
that the men involved in the attack he had witnessed
inquired after him “quite often,” and that the family
interpreted their questions as threatening. A.R. 125; see
also id. 124 (“[T]heir real meaning was they wanted, they
were looking to kill me.”).
After several months in Mumbai, Mr. Vahora’s father
returned and took Mr. Vahora with him to South Africa,
where he had been living. After several months in South
Africa, the family decided to travel to the United States.
They returned to Mumbai and obtained visas. Mr. Vahora
testified that, while in Mumbai, about a week before he
left for the United States, he saw some suspicious-
looking men standing outside a store where he was
headed to buy milk. He hid in another store until they
left, and, when he then entered the first store, the shop-
keeper told him that the men had been asking about
him. Mr. Vahora and his family left Mumbai for the
United States in September 2003.
In the United States, Mr. Vahora’s father apparently
attempted to obtain a change of status to an employment-
based non-immigrant visa, and Mr. Vahora started at-
tending school. In 2005, when he was 16, Mr. Vahora
was a passenger in a car driven by a friend who was
speeding. The vehicle was stopped and, through a course
of events not disclosed by the record, Mr. Vahora’s lack
of legal status in the United States was discovered by
law enforcement. The Department of Homeland Security
thereafter initiated removal proceedings against him.
No. 09-3033 5

B.
Because Mr. Vahora makes several claims in his peti-
tion for review that relate to the procedural history of his
case before the IJ, we discuss that history in some detail.
On January 17, 2006, at Mr. Vahora’s first substantive
hearing, the IJ noted that Mr. Vahora was a minor
with parents present in the United States, but was in
removal proceedings alone. He inquired of counsel
for Mr. Vahora and for the Government whether
Mr. Vahora’s parents had lawful status in the United
States or were the subject of separate removal proceed-
ings. Mr. Vahora’s attorney indicated that, with the
assistance of another attorney, the parents had submitted
a request for change of status to an L non-immigrant
visa. According to Mr. Vahora’s attorney, the parents’
initial application had been denied, but there was
either an appeal or a motion to reopen pending, and
no removal proceedings were currently pending
against Mr. Vahora’s parents. In response, the IJ asked
the Government’s attorney whether proceedings could
be initiated against the parents—and joined with
Mr. Vahora’s—or whether Mr. Vahora’s proceedings
could be administratively closed until such time as a
final decision on the parents’ change-of-status applica-
tion had been reached. The IJ noted that he hoped to
“find a solution” that did not put him “in the position
of having to order someone back to India when [his]
parents are still here and their status is unadjudicated.”
A.R. 74. Counsel for the Government agreed to a con-
tinuance to permit an investigation of the status of the
6 No. 09-3033

parents’ pending cases, but voiced the belief that
it would be premature to close administratively
Mr. Vahora’s case. Government counsel further noted
that, although he could not direct that proceedings
be initiated against the parents, he would inquire of
Immigration and Customs Enforcement whether they
intended to do so. The IJ continued the hearing, and
Mr. Vahora was directed to file his asylum application
at his next court date.
On April 25, 2006, Mr. Vahora appeared for his
continued hearing. At this hearing, he was represented
by another attorney from the same law firm that had
represented him at his initial appearance. When the IJ
inquired about the asylum application due at the hearing,
Mr. Vahora’s attorney indicated that she was newly
assigned to his case within the firm and had not
prepared an application. According to new counsel,
Mr. Vahora’s previous representative had left the firm.
She repeatedly stated Mr. Vahora’s desire to make an
application for asylum or withholding of removal, and
she repeatedly sought a continuance. When the IJ told
the attorney that he would not further continue the
hearing and would only consider applications for relief
that were ready to proceed, as previously ordered,
Mr. Vahora’s attorney requested that the IJ terminate
proceedings on the basis of the parents’ pending L non-
immigrant visa application. Counsel for the Government
did not agree to termination, stating that it was her
“understanding that the Government is . . . placing the
subject’s father in removal proceedings.” A.R. 84-85.
Mr. Vahora’s attorney then presented a copy of an on-
No. 09-3033 7

line case status update page showing the still-pending
change-of-status application for his father, but the IJ
nevertheless concluded that “[p]endency of the applica-
tion for another alien [did] not provide for the status
of” Mr. Vahora, and, therefore, there was no basis for
termination. A.R. 85. With no other applications for
relief pending, the IJ granted Mr. Vahora voluntary
departure.
Represented by new counsel, Mr. Vahora appealed
to the Board, seeking an opportunity to file an asylum
application before the IJ. The Board agreed with
Mr. Vahora that prior counsel had provided ineffective
assistance by failing to comply with the court-ordered
asylum application deadline and remanded for further
proceedings.
On remand to the IJ, Mr. Vahora presented his applica-
tion for asylum. In these post-remand proceedings, his
counsel did not seek, or even mention, the possibility of
termination or administrative closure. Indeed, at his
final merits hearing, the Government noted that Mr.
Vahora’s parents were now in removal proceedings
before another IJ, apparently with an asylum claim
arising out of the same set of facts. The Government
proposed joining Mr. Vahora’s case with his father’s, but
the IJ declined, noting the independent procedural histo-
ries of the cases. Although the ruling already had been
made, Mr. Vahora’s own counsel then added, “[w]e would
have objected to” any joining of the cases. “The father
was not present at the time [Mr. Vahora] experienced
his persecution.” A.R. 108.
8 No. 09-3033

Mr. Vahora testified to the facts underlying his claim,
which we already have set forth. When questioned
about events subsequent to the riots, Mr. Vahora testified
that, even after his departure and up to the time of his
immigration hearing, his grandparents were approached
by the men involved in the stabbing and their associates
to inquire about him. He also stated that he could
be located anywhere in India by members of the same
political party as the Hindu men whose crime he
had witnessed and that they “will just go to any, any
length” to protect their associates. A.R. 129. Mr. Vahora
noted that he had been found once in Mumbai, despite
its size, and that he could not be safe from party members
in any Indian city. He testified that while in India, he was
“full of fear” and “remain[ed] inside the house and . . .
didn’t even go out.” A.R. 129-30.
At the close of the hearing, the IJ denied relief. The IJ
first concluded that, although his application was sub-
mitted beyond the one-year deadline, Mr. Vahora’s
youth and the ineffective assistance he received from
former counsel constituted extraordinary circumstances
sufficient to excuse his failure to comply with the dead-
line. See 8 U.S.C. § 1158(a)(2)(B) & (D). Turning to the
merits of the claim, the IJ accepted as credible
Mr. Vahora’s testimony about the riots and his flight
from his grandparents’ home. Although he noted that
Mr. Vahora’s “contentions that Muslims were placed in
fear of their lives” during the rioting were “well sup-
ported by the historical record,” A.R. 57, the IJ concluded
that the events in Mr. Vahora’s particular case did not
rise to the level of past persecution, relying in part on
No. 09-3033 9

an unpublished decision of this court. 2 The IJ also con-
cluded that Mr. Vahora had not established that he faced
well-founded fear of future persecution on a country-
wide basis. Accordingly, the IJ denied all relief but volun-
tary departure.
Mr. Vahora appealed to the BIA. He principally con-
tended that the IJ erred in his adjudication of the
asylum claim. He further contended that the IJ had
failed to advise him of other available avenues for
relief from removal as required by 8 C.F.R. § 1240.11(a)(2)
and that his proceedings should have been closed ad-
ministratively or terminated because he was a minor
in parental custody.3
The Board affirmed the denial of relief in a separate
opinion. The Board specifically agreed with the IJ’s con-
clusion that Mr. Vahora had demonstrated neither past
persecution nor a well-founded fear of future persecu-
tion. The Board noted that, “[a]lthough the Indian
Muslim respondent was caught up in a riot by Hindus
in March 2002, and was threatened with harm after wit-
nessing a stabbing, this incident does not compare to
cases where the Seventh Circuit has clearly found past
persecution.” A.R. 3. Further, the Board concluded that

2
See A.R. 56 (citing Patel v. Gonzales, 173 F. App’x 471 (7th
Cir. 2006)).
3
Mr. Vahora raised one other challenge also rejected by the
Board, not pressed in his petition for review, namely, that as
a minor in parental custody, he could not be held to his con-
cession of removability before the IJ. See A.R. 4.
10 No. 09-3033

Mr. Vahora had failed to demonstrate that there was
no reasonable possibility of safe relocation elsewhere in
India. Finding no merit in Mr. Vahora’s procedural chal-
lenges, the Board dismissed the appeal and extended
the period of voluntary departure. Mr. Vahora now
petitions for review.

II
DISCUSSION
Mr. Vahora raises both procedural and substantive
challenges to the Board’s order. First, he claims that the
Board erred in its resolution of his asylum claim when
it concluded that he had established neither past persecu-
tion nor a well-founded fear of future persecution. Next,
he claims that the IJ erred in failing to close administra-
tively his case at the outset, because he believes that, as a
minor child in parental custody in the United States, his
case should have been treated together with that of
his parents. Finally, he claims that the IJ failed to
properly advise him of the potential availability of ad-
justment of status through his father’s employment-
based visa and that the failure to do so requires reversal
and remand. We address these contentions in turn.
We note, as an initial matter, that the Board issued its
own decision dismissing Mr. Vahora’s appeal. Although
both parties suggest that the decision of the IJ and the
BIA should be viewed together, our precedent does not
support this position. We consistently have reaffirmed
that a stand-alone opinion of the Board is our sole basis
No. 09-3033 11

for review, even if the Board’s opinion agrees with
specific conclusions of the IJ. See, e.g., Moab v. Gonzales, 500
F.3d 656, 659 (7th Cir. 2007). Our standard of review for
legal questions is de novo; “[h]owever, we defer to the
Board’s factual findings, reversing the Board only if the
record lacks substantial evidence to support its factual
conclusions.” Mekhtiev v. Holder, 559 F.3d 725, 729 (7th
Cir. 2009). “Under the substantial evidence standard, the
agency’s determination will stand if it is supported by
reasonable, substantial, and probative evidence on the
record considered as a whole.” Raghunathan v. Holder,
604 F.3d 371, 376 (7th Cir. 2010) (internal quotation
marks omitted); see also INS v. Elias-Zacarias, 502 U.S.
478, 481 n.1 (1992).4

4
In INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992), the Supreme
Court noted that, under the substantial evidence standard, the
Board’s denial of asylum could only be reversed if the reviewing
court determines that “the evidence presented . . . was such
that a reasonable factfinder would have to conclude that the
requisite fear of persecution existed.” The Court further ex-
plained:
Quite beside the point, therefore, is the dissent’s
assertion that “the record in this case is more than
adequate to support the conclusion that this respondent’s
refusal [to join the guerrillas] was a form of expressive
conduct that constituted the statement of a ‘political
opinion,’ ” post, at 488 (emphasis added). To reverse
the BIA finding we must find that the evidence not
only supports that conclusion, but compels it—and also
compels the further conclusion that Elias-Zacarias
(continued...)
12 No. 09-3033

A.
We first consider Mr. Vahora’s asylum claim. Mr. Vahora
contends that the Board erred in concluding that he
had not been subjected to past persecution. Mr. Vahora’s
claim of past persecution centers on the events of the
2002 Gujarat riots. The Board concluded that Mr. Vahora’s
own experience in this period, in which he witnessed
a stabbing and was threatened with harm thereafter as
a witness, did “not compare to cases where the Seventh
Circuit has clearly found past persecution.” A.R. 3. In
support of its conclusion that this harm did not rise to
the level of persecution, the Board relied on cases
involving egregious forms of persecution, including
particularly severe beatings, torture and psychological
torment.5 We never have indicated, however, that these

4
(...continued)
had a well-founded fear that the guerrillas would
persecute him because of that political opinion.
Id. at 481 n.1 (emphasis in original) (alteration in original).
At the conclusion of the opinion, the Court restated the
petitioner’s burden: “[I]f [the alien] seeks to obtain judicial
reversal of the BIA’s determination, he must show that the
evidence he presented was so compelling that no reasonable
factfinder could fail to find the requisite fear of persecution.
That he has not done.” Id. at 483-84.
5
The Board’s opinion cites Tchemkou v. Gonzales, 495 F.3d 785,
788-89 (7th Cir. 2007) (female petitioner seriously beaten, held
in filthy communal and mixed-sex cell with no food, water or
sanitation facilities for three days, causing numerous physical
(continued...)
No. 09-3033 13

types of incidents set a floor for conduct that meets the
legal definition of persecution, and we do not do so here.
We have no intention to minimize a child’s witnessing
of a stabbing and other acts of violence committed against
members of his own minority religious group. Neverthe-
less, under our precedent, the Board’s conclusion that
the harms Mr. Vahora personally suffered do not rise to
the level of persecution is supported by substantial evi-
dence. Mr. Vahora has not presented us with any
factually analogous cases in which the petitioners were
found to have suffered past persecution. Moreover, in
circumstances similar to Mr. Vahora’s, we have rejected
such a claim. See, e.g., Ingmantoro v. Mukasey, 550 F.3d 646,
649-50 (7th Cir. 2008) (rejecting claim by an ethnic
Chinese Christian living in Indonesia as not dem-
onstrating past persecution where petitioner’s father’s

5
(...continued)
injuries; later was abducted, taken to the woods, where she
was beaten and had a portion of her ear torn off; suffered
additional subsequent beatings), Soumahoro v. Gonzales, 415
F.3d 732, 737 (7th Cir. 2005) (petitioner was “imprisoned for
two weeks, during which time he was beaten regularly,
denied adequate food and water, and had salt literally
rubbed in his wounds”; he also was dismissed from his em-
ployment and one of his subordinates was murdered during a
political demonstration in which they both participated), and
Bace v. Ashcroft, 352 F.3d 1133, 1138 (7th Cir. 2003) (petitioner
beaten on several occasions by masked men; had his home
broken into and his father beaten in his presence; forced,
with his parents, to witness the rape of his wife).
14 No. 09-3033

store was burned by native Indonesian Muslim men
looking for the petitioner, resulting in only bruises ob-
tained while she ran from the scene); see also Bhatt v. Reno,
172 F.3d 978, 981-82 (7th Cir. 1999) (denying petition of
Indian citizen after noting that he was beaten several
times, had protestors in front of his store and received
threats from individuals belonging to radical Hindu
groups in retaliation for assistance he had provided
to Muslims).
The Board’s conclusions regarding Mr. Vahora’s fear
of future persecution also are supported by substantial
evidence. The Board ruled that Mr. Vahora had not estab-
lished that he faced a reasonable possibility of persecu-
tion on a country-wide basis, as required by the regula-
tions. See 8 C.F.R. § 1208.13(b)(2)(ii). Before this court,
Mr. Vahora presses his contention that, because, in his
view, he had established past persecution, he need not
demonstrate that he had a fear of future persecution on
a country-wide basis. Although we agree with this state-
ment of the law,6 it does not aid Mr. Vahora because
we already have concluded that the Board’s determina-
tion that he had not suffered past persecution is sup-
ported by substantial evidence.
Mr. Vahora makes no significant effort to argue that,
if the regulatory requirement applies in his case, reloca-

6
See Oryakhil v. Mukasey, 528 F.3d 993, 998 (7th Cir. 2008)
(noting that applicants seeking to establish asylum eligibility
on the basis of a well-founded fear of future persecution bear
the additional burden of showing that internal relocation
is not reasonable).
No. 09-3033 15

tion is unreasonable. At his hearing before the IJ, he
testified that the Hindu men responsible for the
stabbing and their political associates have inquired
about his well-being from his grandparents in Gujarat
and that, on one occasion, men asked a shopkeeper near
his uncle’s home in Mumbai about him. He also notes
that his immediate family is still in the United States,
that he is only twenty-two years old and that he has
lived outside India for the last eight years. We cannot say
that these circumstances, without more, demonstrate
that he cannot relocate safely and reasonably in India.
The Board’s determination that he has not shown a well-
founded fear of future persecution is, therefore, sup-
ported by substantial evidence and cannot be disturbed.

B.
Mr. Vahora also challenges the IJ’s refusal to close
administratively his case so that it could be joined with
his parents’ case. The Government, relying on Diaz-
Covarrubias v. Mukasey, 551 F.3d 1114, 1118 (9th Cir.
2009), responds that we lack jurisdiction to consider this
question.

1.
We address the jurisdictional issue first. As both the
First and Third Circuits have noted, “[a]dministrative
closure is a procedural convenience that may be granted
if both parties to the removal proceedings agree, but it
does not constitute a final order. Rather, administrative
16 No. 09-3033

closure of a case temporarily removes a case from an im-
migration judge’s calendar or from the Board’s docket.”
Arca-Pineda v. Attorney Gen., 527 F.3d 101, 104-05 (3d Cir.
2008) (alteration in original) (emphasis added) (internal
quotation marks and citation omitted) (citing Lopez-Reyes
v. Gonzales, 496 F.3d 20, 21 (1st Cir. 2007)). Once a case
has been closed administratively, “either party can move
to have the case recalendered” once circumstances
“indicat[e] that the case is ready for a hearing.” Matter of
Hashmi, 24 I. & N. Dec. 785, 792 n.4 (BIA 2009). As the
Sixth Circuit has noted, this temporary removal of the
case from the docket is similar to a court’s granting of a
continuance, albeit an indefinite one. Garza-Moreno v.
Gonzales, 489 F.3d 239, 242 (6th Cir. 2007) (calling the two
processes “not distinguishable” in the jurisdictional
inquiry).
Following the Supreme Court’s decision in Kucana v.
Holder, 130 S. Ct. 827, 839-40 (2010), it is clear that an
immigration court’s denial of an alien’s request for a
continuance is reviewable. The Court reached that con-
clusion by evaluating the jurisdictional bar found in 8
U.S.C. § 1252(a)(2)(B)(ii), which prohibits courts from
reviewing any “decision or action of the Attorney General
or the Secretary of Homeland Security the authority for
which is specified under this subchapter to be in the
discretion of the Attorney General or the Secretary of
Homeland Security,” other than a decision on asylum.
The Court specifically rejected the view that those deci-
sions committed to agency discretion by regulation,
rather than by statute, fall within the ambit of the juris-
dictional bar. Kucana, 130 S. Ct. at 837-38.
No. 09-3033 17

The Government submits that the central holding of
Kucana does not answer the jurisdictional question here.
The Government notes that the Court specifically
reserved judgment on whether a separate statutory pro-
vision, found in the Administrative Procedures Act
(“APA”), prevents review of certain discretionary deci-
sions of the agency not otherwise barred by the INA’s
own proscription. See Kucana, 130 S. Ct. at 839 n.18;
5 U.S.C. § 701(a)(2). The APA, which governs most
aspects of review of agency action in the courts,7 has no
application, according to its provisions, where “agency
action is committed to agency discretion by law.” 5 U.S.C.
§ 701(a)(2). The Government urges us to adopt the view
that administrative closure falls within this exception
to judicial review, as two other courts of appeals have
done. See Ochoa v. Holder, 604 F.3d 546, 549 (8th Cir. 2010);
Diaz-Covarrubias, 551 F.3d at 1120.
To evaluate the Government’s submission, we turn to
the precedents interpreting § 701(a)(2). In Heckler v.
Chaney, 470 U.S. 821 (1985), inmates sentenced to death
challenged a decision by the Food and Drug Administra-
tion not to enforce a statute it administered in the
context of lethal injections. The Court held that the
relevant section of the APA, 5 U.S.C. § 701(a)(2),

7
Several courts have acknowledged explicitly that the judicial
review provisions of the Immigration and Nationality Act, see
8 U.S.C. § 1252, call for traditional review under the APA.
See, e.g., Flores-Miramontes v. INS, 212 F.3d 1133, 1140 (9th Cir.
2000); Sandoval v. Reno, 166 F.3d 225, 235 (3d Cir. 1999).
18 No. 09-3033

prevented review “if the statute is drawn so that a
court would have no meaningful standard against
which to judge the agency’s exercise of discretion.” Id.
at 830. The Court noted at some length the historical
tradition of considering such enforcement decisions to
be wholly discretionary and concluded that the APA
did not upset that tradition. Accordingly, the Court
held that it could not review the FDA’s inaction under
the abuse of discretion standard provided by the APA.
Notably, the Court in Heckler stated that its recogni-
tion of agency discretion over enforcement was “attribut-
able in no small part to the general unsuitability for
judicial review of agency decisions to refuse enforce-
ment.” Id. at 831. Since Heckler, the questions to which
the Supreme Court has applied this rule have been of a
similar character. In Lincoln v. Vigil, 508 U.S. 182, 191-92
(1993), the Court held that agency allocation of funds in
a lump-sum appropriation was unreviewable. Id. at 192
(“After all, the very point of a lump-sum appropriation
is to give an agency the capacity to adapt to changing
circumstances and meet its statutory responsibilities in
what it sees as the most effective or desirable way.”). The
Court otherwise has “limited the exception to judicial
review provided by 5 U.S.C. § 701(a)(2) to cases involving
national security, such as Webster v. Doe[, 486 U.S. 592
(1988),] and Department of Navy v. Egan[, 484 U.S. 518
(1988),] or those seeking review of refusal to pursue
enforcement actions.” Franklin v. Massachusetts, 505 U.S.
788, 818 (1992) (Stevens, J., concurring) (citations omit-
ted). Outside of these distinct, policy-based areas in
which the courts “have long been hesitant to intrude,” id.
No. 09-3033 19

at 819, the Court has found no basis for review only
when it has concluded that there is effectively “ ‘no law
to apply’ ” to the question, id. (quoting Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410
(1971), abrogated in part on other grounds by Califano v.
Sanders, 430 U.S. 99, 105 (1977)).8 In evaluating whether
there is “no law to apply,” the Court has focused on
whether a given decision can be evaluated under a “judi-
cially administrable standard of review.” Franklin, 505
U.S. at 820 (Stevens, J., concurring).
In Diaz-Covarrubias, the Ninth Circuit applied Heckler’s
holding to the question of administrative closure in the
immigration context, the issue we confront here. That
court concluded that the decision to grant or deny ad-
ministrative closure is one “committed to agency discre-

8
Interstate Commerce Commission v. Brotherhood of Locomotive
Engineers, 482 U.S. 270 (1987), is one such case. The issue in ICC
v. Brotherhood was whether a court had jurisdiction to review
an agency’s denial of a motion to reconsider, where the
request to the agency was based on a claimed “material error,”
id. at 279, in its original opinion, i.e., that the case was
wrongly decided on its original factual record. The Court held
that the agency’s decision to deny reconsideration was
unreviewable. In reaching its conclusion, the Court noted
that these types of decisions were traditionally thought
unreviewable, whether made by courts or agencies, and that
the APA was not intended to upset that tradition. The Court
further noted, however, that it was “confirmed in that view
by the impossibility of devising an adequate standard of
review for such agency action.” Id. at 282.
20 No. 09-3033

tion by law,” 5 U.S.C. § 701(a)(2), and, therefore,
unreviewable.9 In arriving at this conclusion, the Ninth
Circuit first noted that administrative closure is a proce-
dural device mentioned neither in the Immigration and
Nationality Act nor in the accompanying regulations,
and that BIA precedent states only that administrative
closure is
an “administrative convenience,” and “[a] case
may not be administratively closed if opposed by
either of the parties.” This language does not
provide any guidance to the BIA regarding when
it should exercise its discretion to grant admin-
istrative closure. Indeed, it gives even less guid-
ance than the BIA’s statement that it could
reopen proceedings sua sponte “in exceptional
situations,” which we found insufficient to allow
review in Ekimian[ v. INS, 303 F.3d 1153, 1157 (9th
Cir. 2002)]. Accordingly, we must conclude that
“[b]ecause we cannot discover a sufficiently mean-
ingful standard” for evaluating the BIA’s deci-
sion not to close a case, we lack jurisdiction to

9
The decision in Diaz-Covarrubias v. Mukasey, 551 F.3d 1114 (9th
Cir. 2009), relied in significant part on an earlier Ninth Circuit
decision, Ekimian v. INS, 303 F.3d 1153 (9th Cir. 2002), which
held that the BIA’s refusal to reopen proceedings sua sponte
was unreviewable. Sua sponte reopening is permitted under
the regulations, although the court found no judicially man-
ageable standard for assessing the BIA’s discretion on this
matter. Ekimian, 303 F.3d at 1157. Ekimian, for its part, relied
significantly on Heckler v. Chaney, 470 U.S. 821 (1985).
No. 09-3033 21

review [the] claim that the BIA abused its dis-
cretion in not doing so. Id. at 1159.
Diaz-Covarrubias, 551 F.3d at 1118 (citation omitted). The
Eighth Circuit has agreed generally with the Diaz-
Covarrubias analysis, Hernandez v. Holder, 606 F.3d 900, 904
(8th Cir. 2010), although, post-Kucana, it has clarified that
the rule is not classified properly as jurisdictional. Ochoa,
604 F.3d at 549 (“When a plaintiff complains about an
action that is committed to agency discretion by law, it
does not mean that a court lacks subject matter jurisdic-
tion over the claim. Instead, it means that there is no
law to apply because the court has no meaningful
standard against which to judge the agency’s unfettered
exercise of discretion.”). Other circuits, without explicit
consideration of the potential problems posed by the
APA, have reviewed the agency’s administrative closure
determination under the abuse of discretion standard.
Cantu-Delgadillo v. Holder, 584 F.3d 682, 686 (5th Cir.
2009); Garza-Moreno, 489 F.3d at 243.
We agree with the Eighth Circuit’s conclusion that this
issue is not termed properly one of jurisdiction: This is
not a question of whether this court has the authority
to review, but rather whether the lack of any “judicially
manageable” standard, Heckler, 470 U.S. at 830, makes
any review within our power, as a practical matter, impos-
sible.
However, when we evaluate § 701(a)(2) as applied to
administrative closure, in light of Supreme Court prece-
dent from Heckler forward, we respectfully disagree
with the Eighth and Ninth Circuits. As the Ninth
22 No. 09-3033

Circuit has noted, administrative closure is not a prac-
tice specified in the statute, nor is it mentioned in the
current regulations. It is a procedural device, not unlike
the myriad other procedural devices employed by quasi-
judicial bodies in administrative agencies and in the
Executive Office for Immigration Review in particular.
Like all of these devices, closure is one tool that assists
the person performing quasi-judicial duties in the
orderly management of the docket and the courtroom. 1 0
We routinely have reviewed procedural rulings in immi-
gration and other administrative adjudications to deter-
mine whether an individual has received a full and fair
hearing before an agency.1 1 In our appellate review of non-

10
Cf. 8 U.S.C. § 1229a(a)(1) (vesting immigration judges with
the authority to “conduct proceedings” for deciding an alien’s
inadmissibility or deportability); 8 C.F.R. § 1240.1(c) (imple-
menting regulations directing that the immigration judge
“shall receive and consider material and relevant evidence,
rule upon objections, and otherwise regulate the course of
the hearing”).
11
See, e.g., Roadway Express, Inc. v. U.S. Dep’t of Labor, 495 F.3d
477, 484-85 (7th Cir. 2007) (reviewing an Administrative Law
Judge’s imposition of sanctions for discovery violations);
White v. U.S. Dep’t of Hous. & Urban Dev., 475 F.3d 898, 907
(7th Cir. 2007) (evaluating the ALJ’s denial of a motion to
amend a discrimination charge for abuse of discretion);
Lakeland Enters. of Rhinelander, Inc. v. Chao, 402 F.3d 739, 745
(7th Cir. 2005) (reviewing decision of ALJ not to admit certain
expert testimony for abuse of discretion in proceedings
before the Occupational Safety and Health Review Commis-
(continued...)
No. 09-3033 23

administrative cases arising in the district courts, we
often evaluate the same kinds of procedural rulings.1 2
We certainly have reviewed an IJ’s refusal to grant a
continuance, the procedural device most closely akin to
the administrative closure sought to be reviewed here.
See Juarez v. Holder, 599 F.3d 560, 564-65 (7th Cir. 2010);
accord Garza-Moreno, 489 F.3d at 242 (holding, as a matter
of Sixth Circuit law, that the reviewability of continuances
was dispositive for the reviewability of administrative
closure decisions); Cantu-Delgadillo, 584 F.3d at 687 n.8
(citing with approval Garza-Moreno).
Simply put, the decision to grant or deny administra-
tive closure is cut of the same cloth as various other
decisions that we review with regularity in both adminis-
trative and non-administrative arenas. The decision

11
(...continued)
sion); Podio v. INS, 153 F.3d 506, 510 (7th Cir. 1998) (ruling
that the IJ abused his discretion in failing to receive certain
relevant testimony from proffered witnesses, and, because
his decision was arbitrary, it denied the alien a right to a fair
hearing).
12
See, e.g., Hollins v. City of Milwaukee, 574 F.3d 822, 828 (7th
Cir. 2009) (reviewing evidentiary rulings for abuse of discre-
tion); GCIU-Emp’r Ret. Fund v. Goldfarb Corp., 565 F.3d 1018,
1026 (7th Cir. 2009) (reviewing a district court’s ruling on
discovery-related matters for abuse of discretion); Schor v.
City of Chicago, 576 F.3d 775, 780 (7th Cir. 2009) (reviewing
the denial of leave to amend a civil complaint for abuse of
discretion); United States v. Chiappetta, 289 F.3d 995, 998-99
(7th Cir. 2002) (reviewing the denial of a continuance in a
criminal trial for abuse of discretion).
24 No. 09-3033

to continue a matter without a specific date for its restora-
tion to a trial docket simply is not the sort of decision
that “involves a complicated balancing of a number of
factors which are peculiarly within [the agency’s] exper-
tise.” Heckler, 470 U.S. at 831. However, it is an area
where an administrative tribunal’s decision to pro-
ceed immediately or to defer decision can affect an indi-
vidual’s liberty and thus “infringe upon areas that courts
often are called upon to protect.” Id. at 832; cf. Potdar v.
Mukasey, 550 F.3d 594, 596 (7th Cir. 2008) (“Congress
did not intend to entitle illegal aliens to seek an adjust-
ment of status upon the receipt of certificates from the
state and federal labor departments and at the same
time also intend[] section 1252(a)(2)(B)(ii) to place
beyond judicial review decisions by the immigration
authorities that nullif[y] the statute.” (internal quotation
marks and citation omitted) (alterations in original)).
Such procedural questions are well within the com-
petence of the courts to consider,1 3 and the standard of

13
We note that in Zetino v. Holder, ___ F.3d ___, 2010 WL
3385957, at *4 n.2 (9th Cir. Aug. 30, 2010), the Ninth Circuit, in
an amended opinion, now has held that the decision of the BIA
to reject a brief as untimely is subject to review in the court
of appeals in light of Kucana v. Holder, 130 S. Ct. 827, 831 (2010).
The court made no mention of the impact of Zetino on the
continued viability of its holding in Diaz-Covarrubias. We
have no occasion, of course, to decide whether the actual
holding of Zetino with respect to the rejection of untimely
briefs is correct.
No. 09-3033 25

review is of a character that is judicially administrable.1 4
Such a decision by an administrative tribunal stands
in stark contrast to the sort of review of agency action
that troubled the Supreme Court in Heckler—an examina-
tion of whether the agency was required to institute
an enforcement action in the first instance. Such a
decision is akin to prosecutorial discretion; it is a
policy matter typically outside the traditional review
authority of the courts.

14
The regulations provide a standard of “good cause” for the
granting of continuances, see 8 C.F.R. § 1003.29, and the BIA
has “defined the parameters of ‘good cause’ ” as dependent
“on the facts and circumstances presented.” Matter of Hashmi,
24 I. & N. Dec. 785, 788 (BIA 2009). Recent Board decisions
have given some content to the good cause standard in par-
ticularized circumstances. Matter of Rajah, 25 I. & N. Dec. 127
(BIA 2009) (listing factors to be considered when the alien
seeks a continuance to await an employment-based admin-
istrative adjudication); Hashmi, 24 I. & N. Dec. at 790-94
(listing factors to be considered when the administrative
procedure involves family-based relief). Administration of this
standard creates no insuperable problem for a court habituated
to reviewing judicial action under an abuse-of-discretion
standard. Courts of appeals have been evaluating denials
of continuances in immigration proceedings under the abuse
of discretion standard for some time. See, e.g., Castaneda-Delgado
v. INS, 525 F.2d 1295, 1300 (7th Cir. 1975) (“While the ques-
tion of whether or not to grant a continuance at such an ad-
ministrative hearing ordinarily rests in the discretion of the
officer conducting the hearing (in this case, the immigration
judge), it is subject to reversal if there is a clear showing of
abuse of that discretion.”).
26 No. 09-3033

The Government’s contention seems to be that the
Supreme Court’s decision in Kucana should have us
rethink our position in Cevilla v. Gonzales, 446 F.3d 658,
660 (7th Cir. 2006). In Cevilla, we stated that the INA’s
restrictions supersede those of the APA on the matter
of discretionary decisions. In Kucana, the Court merely
stated that it “express[ed] no opinion on” the application
of § 701(a)(2) to these issues. 130 S. Ct. at 839 n.18. That
a footnote in Kucana simply pretermitted the possibility
that the APA’s narrow bar might have some effect
does not convince us that our colleagues in the Fifth
and Sixth Circuits were incorrect when they concluded,
before Kucana, that the legality of the denial of admin-
istrative closure is a question within our authority to
consider. Indeed, although the Kucana opinion expressly
leaves open the question of the APA’s application in
immigration cases, a fair reading of our precedent
already may have decided the matter in our circuit.
In sum, the decision to deny administrative closure,
like the decision to deny a continuance, is within our
cognizance. We apply ordinary judicial standards to
determine whether the IJ abused his discretion in this case.

2.
We perceive no abuse of discretion in the IJ’s decision
to deny administrative closure. The record belies any
assertion that Mr. Vahora properly made and main-
tained his request. See A.R. 108 (current counsel for
Mr. Vahora informing the IJ that he “would have ob-
jected” to an attempt to join Mr. Vahora’s case with his
No. 09-3033 27

parents’ removal proceedings). Nor can we identify
any other circumstances that would place the ruling
outside the range of options from which a reasonable
immigration judge would choose. Indeed, the Govern-
ment opposed closure, and agreement of the parties is
a prerequisite to closure under binding Board precedent.
See Matter of Gutierrez-Lopez, 21 I. & N. Dec. 479 (BIA 1996).
Nor can we say that the circumstances of Mr. Vahora’s
case were such that, in spite of Board precedent
requiring agreement, the IJ unreasonably denied closure:
Mr. Vahora had, as the IJ noted, no ground for immigra-
tion relief through his family. Although he sought
closure on the basis of a pending application by his
family, he produced only incomplete information about
the status of the parents’ case and, at least at the outset,
appeared not to know the status definitively. Indeed, he
represented that his parents’ application for a change of
status had been denied and was either on appeal or the
subject of a pending motion to reopen. The success of
these post-denial procedures being highly speculative,
and with the Government unable or unwilling to initiate
removal against his parents at the time of Mr. Vahora’s
first request for closure, the IJ’s decision to proceed with
the case on its own was not an abuse of discretion. We
acknowledge the undesirability of pursuing removal
proceedings alone against a minor whose parents are in
the United States, but, under the circumstances of this
case, the judge acted within the reasonable bounds of
his discretion.15

15
Furthermore, we note that the decision of the Attorney
(continued...)
28 No. 09-3033

C.
Finally, Mr. Vahora contends that we must remand his
case because the IJ failed to follow his duty, imposed
by regulation, to inform Mr. Vahora of the possibility of
other forms of immigration relief. 8 C.F.R. § 1240.11(a)(2)
provides, in relevant part: “The immigration judge shall
inform the alien of his or her apparent eligibility to
apply for any of the benefits enumerated in this chapter
and shall afford the alien an opportunity to make ap-
plication during the hearing, in accordance with the
provisions of § 1240.8(d).” Mr. Vahora contends that the
IJ failed to inform him that he could have been eligible
for relief in the form of adjustment of status. We have
considered an IJ’s failure to fulfill this duty imposed by
regulation under a due process analysis. See Bejko v.
Gonzales, 468 F.3d 482, 487 (7th Cir. 2006).
Mr. Vahora’s purported avenue for relief was that, if
his father’s request for change of status to an L-1 non-
immigrant visa were approved, his father eventually
may have obtained an immigrant visa on the same basis,
which may have permitted him to apply for permanent
residence with Mr. Vahora as a potential derivative
on his application. This chain of events is simply too
speculative to have given rise to a duty on the part of the
IJ to explore it further with Mr. Vahora. As the Ninth
Circuit has explained,

15
(...continued)
General to commence proceedings against Mr. Vahora without
joining his parents is unreviewable by statute. See 8 U.S.C.
§ 1252(g).
No. 09-3033 29

The IJ was required to inform the alien of his or her
apparent eligibility to apply for . . . relief. Yet [u]ntil
the [alien] himself or some other person puts
information before the judge that makes such
eligibility “apparent,” this duty does not come
into play. We do not require IJs to speculate about
the possibility of anticipated changes of circum-
stances and advise aliens of facts not suggested
in the record.
United States v. Moriel-Luna, 585 F.3d 1191, 1197 (9th Cir.
2009) (emphasis in original) (internal quotation marks
and citations omitted) (alterations in original). We
do not suggest that the record must disclose that an
alien has satisfied all of the prerequisites for alterna-
tive relief before an IJ’s duty to inform him of potential
eligibility for that particular form of relief arises. See
Moran-Enriquez v. INS, 884 F.2d 420, 422-23 (9th Cir.
1989). A fair reading of this record, however, does not
demonstrate that “an individual who is intimately
familiar with the immigration laws” could have con-
cluded that the record “raises a reasonable possibility
that the petitioner may be eligible for relief.” United
States v. Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. 2001)
(internal quotation marks omitted).
Moreover, Mr. Vahora cannot demonstrate prejudice.
See Bejko, 468 F.3d at 487-88; Feto v. Gonzales, 433 F.3d
907, 912-13 (7th Cir. 2006). First, his attorney initially
sought to have the case closed so that he could pursue
the relief about which he claims the IJ was obligated to
inform him. See infra I.B. Second, the entire chain leading
30 No. 09-3033

to a possibility of adjustment of status is dependent on
an initial approved application for his father’s change
of status. Mr. Vahora initially informed the IJ that the
application was denied—although the denial was on
appeal or was the subject of a motion to reopen. In the
remainder of his proceedings, Mr. Vahora never repre-
sented that his father’s application for a change of status
was successful. Indeed, the fact that his father found
himself in removal proceedings suggests otherwise.
Accordingly, we are not persuaded that § 1240.11(a)(2)
requires us to remand this case for further proceedings.

Conclusion
The Board’s conclusions regarding Mr. Vahora’s
asylum eligibility are supported by substantial evidence;
he has established neither that he was a victim of past
persecution nor that he has a well-founded fear of
future persecution on a country-wide basis. Further,
Mr. Vahora has not established that the IJ abused his
discretion in denying administrative closure. Nor did
the IJ fail, in violation of a regulation, to inform
Mr. Vahora about relief because the possibility of relief
was highly speculative on the record. For those reasons,
we deny the petition for review.
P ETITION D ENIED

11-15-10