A-30164305.
Decided by Board April 21, 1988.
(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:
Order: Act of 1952 — Sec. 241(a)(4) [ 8 U.S.C. § 1251(a)(4)] — Crime involving moral turpitude
ON BEHALF OF RESPONDENT: Pro se
ON BEHALF OF SERVICE: 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 respondent failed to appear for a scheduled hearing and could not be located. The Immigration and Naturalization Service appealed. The appeal will be sustained and the record will be remanded to the immigration judge for further action.
The decision which the Service seeks to have reviewed is interlocutory in nature. This Board does not ordinarily entertain interlocutory appeals. See Matter of Ruiz-Campuzano, 17 IN Dec. 108 (BIA 1979); Matter of Ku, 15 IN Dec. 712 (BIA 1976); Matter of Sacco, 15 IN 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 Matter of Correa, 19 IN Dec. 130 (BIA 1984); Matter of Victorino, 18 IN Dec. 259 (BIA 1982); Matter of Alphonse, 18 IN Dec. 178 (BIA 1981); Matter of Wadas, 17 IN Dec. 346 (BIA 1980); Matter of Seren, 15 IN Dec. 590 (BIA 1976); Matter of Fong, 14 IN Dec. 670 (BIA 1974). In the present case, we have decided to accept this interlocutory appeal in order to insure proper use of the administrative 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 I-221) was issued against him, alleging 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(a)(4) (1982), as an alien who, at any time after entry, is convicted 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 appeared 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 respondent also informed the immigration judge that his parole had been revoked because he had been arrested and charged with assault 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 criminal 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 respondent 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.
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 opportunity to be present . . . and without reasonable cause fails or refuses to attend." See Matter of Marallag, 13 IN Dec. 775 (BIA 1971); see also Matter of Perez, 19 IN Dec. 433 (BIA 1987). In the present case, the respondent has offered no explanation for his failure 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. The respondent had appeared for earlier hearings at which evidence and testimony were taken and deportability established. An application for a section 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 administratively closed, the respondent is allowed, by simply failing to appear, to avoid an order regarding his deportability, and the consequences 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.
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.
ORDER: The appeal is sustained and the record is remanded to the immigration judge for further action in accordance with the foregoing decision.