United States Court of Appeals
For the First Circuit
No. 06-2505
EVELIN LOPEZ-REYES,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Selya, Senior Circuit Judge,
and Lipez, Circuit Judge.
Timothy J. Nutter on brief for petitioner.
Karen Y. Stewart, Attorney, Office of Immigration Litigation,
Peter D. Keisler, Assistant Attorney General, Civil Division, and
Stephen J. Flynn, Senior Litigation Counsel, on brief for
respondent.
July 31, 2007
LYNCH, Circuit Judge. At issue is whether Evelin Lopez-
Reyes, a twenty-one-year-old Guatemalan, has stated a colorable due
process claim arising from the denial by an Immigration Judge of
her motion to administratively close or stay her removal
proceedings. Lopez has not stated such a claim.
Lopez's removal proceedings began on July 28, 2000,
shortly after she had arrived in the United States without being
admitted or paroled. She was removed in absentia on November 2,
2000 after failing to appear at a scheduled hearing, see 8 U.S.C.
§ 1229a(b)(5)(A), but that removal order was subsequently revoked.
On March 28, 2002, Lopez applied for asylum.
On April 20, 2005, Lopez argued to the IJ that her
removal proceedings should be closed or stayed until her father's
pending application for asylum was adjudicated, so that she could
claim derivative asylum benefits. Lopez had previously received
several continuances based on her father's pending application. In
her April 2005 motion, Lopez asserted that her father satisfied the
eligibility criteria set out in the class action settlement
agreement in American Baptist Churches v. Thornburgh, 760 F. Supp.
796 (N.D. Cal. 1991). That agreement covers Salvadorans and
Guatemalans who were present in the United States as of September
19, 1990 and October 1, 1990, respectively. See id. at 799. Under
the settlement agreement, ABC class members "are entitled, under
certain specified conditions, to new proceedings . . . to determine
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their right to asylum or any other rights and benefits established
under the agreement." In re Morales, 21 I. & N. Dec. 130, 132 (BIA
1996).
The IJ denied Lopez's motion for administrative closure
based on an objection made by the Department of Homeland Security
(DHS). The IJ adhered to law that an administrative closure may
not be granted if it is opposed by either party to the proceedings.
See In re Gutierrez-Lopez, 21 I. & N. Dec. 479, 480 (BIA 1996).
When the IJ denied the motion, Lopez withdrew her applications for
asylum, withholding of removal, and relief under the Convention
Against Torture; she requested and received a final order of
removal to Guatemala.
On appeal, the Board of Immigration Appeals affirmed,
holding that, in light of the DHS's objection, the IJ did not err
in denying Lopez's motion for administrative closure.1 The BIA
stated that the reasons why the DHS had chosen to oppose the motion
were irrelevant, and were not before the agency. The BIA also
rejected Lopez's claim that she would suffer prejudice if she were
1
Lopez asserts that the BIA violated her right to due
process by denying her request for administrative closure or a
stay. Her arguments to this court, however, do not distinguish
between administrative closures and stays. The BIA, for its part,
treated Lopez's motion simply as one for administrative closure.
Lopez has assigned no error to the Board's reading of her appeal.
We similarly focus on Lopez's request for administrative closure.
Petitioner has waived any independent argument regarding a request
for a stay. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).
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separated from her father. The Board pointed out that Lopez "may
still be eligible to benefit from any grant of her father's asylum
application by the DHS."
Administrative 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. See In re Lopez-Barrios,
20 I. & N. Dec. 203, 204 (BIA 1990); In re Amico, 19 I. & N. Dec.
652, 654 n.1 (BIA 1988). Rather, administrative closure of a case
temporarily removes a case from an immigration judge's calendar or
from the Board's docket. See Mickeviciute v. INS, 327 F.3d 1159,
1161 n.1 (10th Cir. 2003); Amico, 19 I. & N. Dec. at 654 n.1.
Under BIA precedent, a case may not be administratively
closed if either party opposes. See Gutierrez-Lopez, 21 I. & N.
Dec. at 480; In re Peugnet, 20 I. & N. Dec. 233, 234 n.1 (BIA
1991); In re Munoz-Santos, 20 I. & N. Dec. 205, 207 (BIA 1990).
Thus, neither an Immigration Judge nor the BIA may administratively
close a case where, as here, the DHS objects.
Lopez argues that the denial of the motion for
administrative closure violated her due process rights. In the
course of making this due process argument, she also suggests that
government counsel incorrectly withheld consent to her motion.
The parties dispute whether the statutory bar to review
under 8 U.S.C. § 1252(g) applies:
Except as provided in this section and
notwithstanding any other provision of law
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(statutory or nonstatutory), including section
2241 of title 28, United States Code, or any
other habeas corpus provision, and sections
1361 and 1651 of such title, no court shall
have jurisdiction to hear any cause or claim
by or on behalf of any alien arising from the
decision or action by the Attorney General to
commence proceedings, adjudicate cases, or
execute removal orders against any alien under
this chapter.
8 U.S.C. § 1252(g). The government maintains that its decision to
object to administrative closure is not reviewable by this court
because that decision falls within its prosecutorial discretion to
"adjudicate cases."
The answer is not clear. The Supreme Court has cautioned
against a broad reading that would treat § 1252(g) as
a sort of "zipper" clause that says "no
judicial review in deportation cases unless
this section provides judicial review." In
fact, what § 1252(g) says is much narrower.
The provision applies only to three discrete
actions that the Attorney General may take:
her "decision or action" to "commence
proceedings, adjudicate cases, or execute
removal orders." (Emphasis added.) There are
of course many other decisions or actions that
may be part of the deportation process -- such
as the decisions to open an investigation, to
surveil the suspected violator, to reschedule
the deportation hearing, to include various
provisions in the final order that is the
product of the adjudication, and to refuse
reconsideration of that order.
Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482
(1999) (last emphasis added).
It is not obvious whether a decision to withhold consent
to administrative closure falls within the Attorney General's
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discretion to "adjudicate cases," or whether such a decision is
closer to a decision "to reschedule the deportation hearing," which
apparently falls outside the scope of § 1252(g). The Supreme Court
explained that at the time § 1252(g) was enacted, the INS2 had been
engaging in a practice known as "deferred action" through which the
service could "decline to institute proceedings, terminate
proceedings, or decline to execute a final order of deportation."
See id. at 484 (emphasis added) (quoting 6 C. Gordon et al.,
Immigration Law and Procedure § 72.03[2][h] (1998)) (internal
quotation marks omitted). This practice led to litigation in cases
where the INS chose not to apply "deferred action," and the Court
stated that § 1252(g) "seems clearly designed to give some measure
of protection to 'no deferred action' decisions and similar
discretionary determinations, providing that if they are reviewable
at all, they at least will not be made the bases for separate
rounds of judicial intervention outside the streamlined process
that Congress has designed." Id. at 485 (emphasis added).
We need not decide this question about the scope of
§ 1252(g) because, for a different reason, we lack authority to
review the challenge to the government's decision not to agree to
administrative closure. Lopez did not make this argument to the
2
On March 1, 2003, the functions of the INS were
transferred to the DHS. See Homeland Security Act of 2002, Pub. L.
No. 107-296, § 471(a), 116 Stat. 2135, 2205 (codified at 6 U.S.C.
§ 291(a)).
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BIA. As a result of this failure to exhaust, we lack jurisdiction
to consider the argument now.3 See 8 U.S.C. § 1252(d)(1); Olujoke
v. Gonzales, 411 F.3d 16, 23 (1st Cir. 2005).
Lopez alternatively attempts to cast her claim in
constitutional due process terms, relying on the provision in the
REAL ID Act granting jurisdiction to courts of appeals over
constitutional questions. 8 U.S.C. § 1252(a)(2)(D) ("Nothing in
subparagraph (B) or (C), or in any other provision of this chapter
(other than this section) which limits or eliminates judicial
review, shall be construed as precluding review of constitutional
claims or questions of law raised upon a petition for review filed
with an appropriate court of appeals in accordance with this
section."); see also REAL ID Act of 2005, Pub. L. No. 109-13,
§ 106, 119 Stat. 231, 310.
Lopez's argument seems to be that the BIA's unanimous
consent rule violates due process when it is used to deny an
administrative closing of removal proceedings to a child who has a
derivative interest in her parent's asylum application and the
parent's application has not yet been adjudicated.
On the facts of this case, there is no colorable due
process claim. See Alsamhouri v. Gonzales, 484 F.3d 117, 124-25
3
To the extent Lopez now argues that she was entitled to
a continuance, rather than administrative closure or a stay, we
similarly lack authority to consider this argument, as Lopez failed
to raise it before the BIA.
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(1st Cir. 2007). To begin, Lopez has failed to demonstrate an
entitlement to relief. Thus, there is no cognizable liberty or
property interest at stake, and no due process claim is stated.
See DaCosta v. Gonzales, 449 F.3d 45, 50 (1st Cir. 2006); Jupiter
v. Ashcroft, 396 F.3d 487, 492 (1st Cir. 2005). Further, there is,
as the BIA held, no cognizable prejudice because Lopez may still be
eligible to claim derivative benefits based on her father's asylum
application. Absent cognizable prejudice, there is no due process
claim. Dar-Salameh v. Gonzales, 468 F.3d 47, 51 (1st Cir. 2006).
Finally, Lopez was not, in any event, treated unfairly. She had
already received a number of continuances.
The petition for review is denied.
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