The Board of Immigration Appeals held that administrative closure was appropriate in this case because the respondent's deportability turned on the outcome of a direct appeal of his conviction. In reaching that decision, the Board applied the factors discussed in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) (granting administrative closure based on government's unexplained delay in adjudicating a visa petition).
The Avetisyan factors include, but are not limited to:
(1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the Immigration Judge or the appeal is reinstated before the Board.
The Board found these factors favored administrative closure in Montiel's case. The only charge of removability was his for conviction alien smuggling, an aggravated felony, and the Board found it significant that this conviction followed a jury trial. The Board also found it significant that Montiel was appealing his conviction, rather than merely the sentence imposed. Further, it implicitly found that Montiel's appeal was not frivolous because it noted that administrative closure to await the outcome of an appeal would not be appropriate where the appeal is facially frivolous. Given those factors, the Board administratively closed Montiel's removal proceedings.