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 mоtion 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 ab-sentia on November 2, 2000 after failing to appear at a scheduled hearing, see 8 U.S.C. § 1229a(b)(5)(A), but thаt 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 sev
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eral сontinuances 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 actiоn settlement agreement in
American Baptist Churches v. Thornburgh,
The IJ denied Lopez’s motion for administrative closure based on an objection made by the Department of Hоmeland 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 Lopеz’s claim that she would suffer prejudice if she were 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,
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 administrаtively 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 thе 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 bаr to review under 8 U.S.C. § 1252(g) applies:
*22 Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, оr 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 аlien 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 “zipрer” 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 оther decisions or actions that may be part of the deportation process-such as the decisions to open an investigation, to surveil the suspected violаtor, 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.,
It is not obvious whether a decisiоn to withhold consent to administrative closure falls within the Attorney General’s 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 INS
2
hаd 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,
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 BIA. As a rеsult of this failure to exhaust, we lack jurisdiction to consider the argu
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ment now.
3
See
8 U.S.C. § 1252(d)(1);
Olujoke v. Gonzales,
Lopez alternatively attempts to cast her claim in constitutional due process terms, relying on the рrovision 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 rulе 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 appliсation 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,
The petition for review is denied.
Notes
. 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 administrаtive 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 аppeal. 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,
. 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)).
. 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.