AVETISYAN, 25 I. & N. Dec. 688

Respondent Bavakan Avetisyan, a native and citizen of Armenia, was admitted to the United States on or about March 8, 2003 as a J-1 exchange visitor; her participation ended March 30, 2003.
DHS served a Notice to Appear on April 21, 2004 charging removability under 237(a)(1)(C)(i) for failing to maintain status; respondent admitted the factual allegations and conceded the charge at the 2004 hearing.
Over time, respondent reported marriage to a U.S. citizen, a U.S. citizen child, and a pending visa petition filed by her husband; the case was repeatedly continued to allow adjudication of the petition.
The Immigration Judge granted multiple continuances while the visa petition remained pending; in 2008-2009, DHS objected to administrative closure; the IJ ultimately administratively closed the proceedings.
The Board dismissed DHS’s interlocutory appeal and affirmed that the IJ had authority to administratively close; the Board overruled Matter of Gutierrez to the extent inconsistent with this decision.
The order directs that the DHS appeal be dismissed and the record returned to the Immigration Court.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Authority to close despite opposition	DHS argues against closure based on Gutierrez rule	Avetisyan argues IJ/Board may close under independent judgment	Yes; IJ/Board may close despite opposition when appropriate
Standards for evaluating administrative closure	DHS contends only lack of opposition should block closure	Closure weighed by total factors, not opposition alone	Factors analogous to motions to reopen/continues apply; opposition alone not controlling

Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996) (established absolute veto due to opposition for administrative closure; overruled in part)
Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009) (factors for continuances; supports totality-of-circumstances evaluation)
Matter of Lamus, 25 I&N Dec. 61 (BIA 2009) (motion to reopen; opposition weighed but not controlling)
Matter of Rajah, 25 I&N Dec. 127 (BIA 2009) (continuance related to employment petition; factors considered)
Matter of Amico, 19 I&N Dec. 652 (BIA 1988) (in absentia context; background on administrative closure)
Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th Cir. 2007) (government's appeal rights; context for interlocutory review)
Ahmed v. Mukasey, 548 F.3d 768 (9th Cir. 2008) (rejects absolute veto by government on motions to reopen/continue)
Melnitsenko v. Mukasey, 517 F.3d 42 (2d Cir. 2008) (supports independent judgment despite opposition)
Sarr v. Gonzales, 485 F.3d 354 (6th Cir. 2007) (opposition considered but not controlling)
Vahora v. Holder, 626 F.3d 907 (7th Cir. 2010) (circuit acknowledgment of Board’s independent authority)