B-N-K-: A Pending TPS Application Did Not Put Her Removal Case on Hold

Your application for Temporary Protected Status is sitting at USCIS. Your asylum hearing is coming up in immigration court. Asking the judge to wait looks like common sense. Why risk a removal order while another agency might protect you?

A detained woman known as B-N-K- asked for that in May 2024. She wanted administrative closure, which takes a case off the judge’s calendar, and an immigration judge granted it the next day. The closure lasted 13 months while the Department of Homeland Security fought it. DHS won. The Board of Immigration Appeals put her case back on the calendar and told judges that a pending TPS application generally will not warrant administrative closure.

The decision is Matter of B-N-K-, 29 I&N Dec. 96 (BIA 2025), Interim Decision 4101, decided June 6, 2025. The Board asked one main question: Was there a persuasive reason for the case to go forward and end on the merits? TPS failed that test for a specific reason. It does not change how a removal case ends. The decision shows how the Board treats a pause that cannot change the outcome.

The judge called the motion joint. DHS had never joined it.

Administrative closure takes a case off an immigration judge’s active calendar. That is all it does. It gives no status and no relief from removal, and the Board said it is not a way to delay a case indefinitely. A continuance, which only moves the hearing date, is a separate request judged for good cause. B-N-K- wanted closure so USCIS could act on her TPS application first.

Her motion, filed May 6, 2024, argued that the “pending immigration benefit makes any adverse decision on her asylum claim untimely.” She claimed to be prima facie eligible for TPS, meaning her application appeared on its face to qualify. The judge granted the motion the next day on a form order that called it a joint request.

It was not joint, and DHS appealed to say so. In October 2024 the Board declined to take that appeal and pointed DHS to the immigration court, where it could ask to put the case back on the calendar. That step is called recalendaring. DHS asked. In November the judge refused, finding no changed circumstances or good cause. DHS appealed again. The Board acknowledged that its first refusal had “created uncertainty,” took the second appeal, and reviewed both the original closure and the refusal to undo it.

The “joint” label carried the whole order. The Board found it clearly wrong, because DHS had never joined and still opposed closure on appeal. Without that label, nothing supported a summary grant. A contested motion needed analysis, and the form order had none.

Who gets to say a case can wait

For decades the answer was either side. If DHS or the respondent objected, the case could not be closed. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), ended that veto and gave the decision to judges, with a list of factors. The Board in B-N-K- was openly unhappy about that history. A footnote says “[m]inimal explanation” was given for so significant a change.

Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), came next, and who won it matters. DHS had asked for closure. An asylum applicant from China wanted his hearing. The judge kept the case closed to save the court’s “limited adjudication resources.” The Board reversed and held that the primary consideration was “whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” Wanting his asylum claim decided was reason enough.

Attorney General Sessions overruled that line in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), concluding that judges had no general power to close cases. Attorney General Garland overruled him in Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021), and restored Avetisyan and W-Y-U- while rulemaking went forward. A 2024 rule, published about three weeks after the judge’s order in this case, then wrote the factors into 8 C.F.R. § 1003.18(c)(3) and its Board counterpart, section 1003.1(l)(3). That was the framework the Board applied in June 2025. The list covered the reason for the request, the basis for any opposition, whether closure is required before DHS can accept or approve a filing, the likelihood of success on the outside application, how long the pause will last, who caused any delay, the expected outcome of the case and whether ICE was detaining the person.

Primary, but not dispositive

The rule said “[n]o single factor is dispositive,” and it told judges to look at all the circumstances. It did not say how to rank what they found. B-N-K- filled that silence.

The Board began with what immigration courts are for. DHS brings removal cases and judges decide them. Judges have no say in DHS’s choice to prosecute a case to its end, and “[t]he expectation is that proceedings initiated by DHS will proceed to a conclusion.” From there the Board held that “whether there are persuasive reasons for a case to proceed and be resolved on the merits is the primary consideration.” It also told judges to “strongly consider the views of the parties” at the outset, and to look carefully at the reasons behind any opposition.

The Board says it was reaffirming W-Y-U-, and it kept the phrase. The wording still moved. W-Y-U- asked whether the party opposing closure had given a persuasive reason. B-N-K- asked whether persuasive reasons existed. The Board has since said, in Ibarra-Vega, that a party’s interest in bringing the case to a close on the merits is itself persuasive. An ordinary DHS objection therefore started with weight on its side.

The strongest objection came from the Justice Department’s own rule. Its preamble said W-Y-U- “is superseded” to the extent it conflicts with the rule’s “unweighted” totality standard. The Board answered in a footnote: “[P]rimary consideration” means “the initial and important but not overriding consideration,” so the two fit. That footnote is the obvious place to argue that the Board added a weight the rule left out.

TPS could not change how her case would end

Applied to this motion, the test left little standing. B-N-K- had an asylum case “ripe for adjudication,” and deciding it, with any appeal, would end the removal proceedings. DHS argued that could happen with no harm to her TPS application.

The Board agreed, and its reason is the center of the decision: “TPS is a collateral benefit that does not impact the outcome of removal proceedings.” USCIS decides TPS in the first instance, and she would remain eligible for it even with a final removal order. Under 8 U.S.C. § 1254a(a)(1)(A), TPS bars removal only while the status is in effect. Relying on its earlier Sosa Ventura decision, the Board explained that a grant protects a person from the execution of a removal order for a set period, while the person remains removable.

That answered her argument that an adverse ruling would be “untimely.” The judge would decide asylum and removability the same way whether USCIS approved TPS tomorrow or never. A pause would buy time. It would not produce a different ending.

Her motion also left two holes. It did not say how long the pause would last. It did not say how a TPS approval would affect the outcome once the case came back. The second hole was close to unfillable, given what TPS is.

The question is whether approval would let the judge do something different in this case. Avetisyan offered, in 2012, the example of an approved visa petition filed by a permanent-resident spouse who was actively pursuing naturalization, and said closure “may” be appropriate there. The Board later treated Avetisyan as superseded by the 2024 rule. And it has carried B-N-K- past TPS. Matter of Medina Madrid, 29 I&N Dec. 514 (BIA 2026), read it to reach an application “that does not impact the outcome” more generally. There, an approved petition from a permanent-resident spouse did not change the outcome, because the woman had not been admitted or paroled and would have to leave to process a visa abroad. Her planned waiver could also be filed even after a final removal order, if consent to reapply had been approved. Cruz-Valdez pointed the other way on its facts: a provisional waiver that USCIS would not accept unless the case was closed. The 2024 rule lists that kind of requirement as its own factor.

Detention helped, but the result did not depend on it

B-N-K- was in DHS custody, and the 2024 rule made detention an express factor. Closure often has no known end date, so the Board said detention “will generally counsel strongly against” it. The Board borrowed from Matter of L-N-Y-, a continuance case about a detained man waiting on a U visa.

Then the Board removed any comfort for people outside custody. “[T]he result here would have been the same even if the respondent were not detained.” That sentence makes the TPS holding stand on its own: A pending TPS application generally will not warrant closure, in custody or out.

A pause needs a finish line

The Board also tied every closure to an end it could foresee. The basis for a pause “must be related to achieving some foreseeable resolution to the ongoing proceedings within a reasonably short period of time.” That phrase grew teeth quickly.

Matter of Cahuec Tzalam, 29 I&N Dec. 300 (BIA 2025), used it five months later against a teenager with only a receipt notice for a special immigrant juvenile petition and a visa line nearly five years behind his filing date. Matter of Ibarra-Vega, 29 I&N Dec. 476 (BIA 2026), applied it to U visa waits and to decisions to recalendar, and called closure beyond six months presumptively unreasonable absent unique circumstances.

A continuance, the other way to wait, is narrow too. Under 8 C.F.R. § 1003.29 a judge may grant one for good cause shown. Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018), told judges weighing a continuance for relief from another agency to focus on how likely that relief is and whether it will materially affect the outcome of the removal case. A TPS application carries the same weakness that sank this motion.

What the Board ordered, and what it costs

The Board sustained DHS’s appeal, vacated the judge’s November 19, 2024 denial, reinstated the removal proceedings and sent the case back for a new decision. Her asylum claim returned to the immigration judge, while USCIS retained the TPS application. The next step was the hearing she had asked to postpone.

The cost is real, though the opinion only implies it. Someone who loses asylum and later receives TPS lives with a removal order that TPS holds off only as long as the status lasts. Designations can end. The asylum hearing cannot be treated as a formality while waiting on USCIS.

California cases also run through the Ninth Circuit

A California respondent has circuit law on this. Gonzalez-Caraveo v. Sessions, 882 F.3d 885 (9th Cir. 2018), held that the court has jurisdiction to review closure decisions, because the Avetisyan factors gave it a meaningful standard to apply when no statute or regulation supplied one. It also held that the judge and the Board must each independently consider a closure request despite DHS’s objection, and it called “absolute veto power” for either side an “impermissible violation” of the judge’s authority. That is the natural answer to a claim that DHS’s wish to finish settles the matter.

The opinion rested on Avetisyan and on general regulations about judges’ authority, and it predates the 2024 rule.

The same opinion shows the limit. The petitioners won the legal point and lost the remedy. They identified no pending application outside their control and no remaining claim for relief, so the court found no prejudice and declined to remand. In practice the issue reaches the court on a petition for review of a final removal order, as it did there, on the record built before the judge and the Board. That record has to show what the pause would have accomplished.

A newer Ninth Circuit opinion adds an important qualification. In Ruiz v. Bondi, 163 F.4th 586, 601–02 (9th Cir. 2025), the court described W-Y-U- as superseded by the 2024 regulation, but applied the earlier standard to a Board decision made before that rule. Ruiz still lost his closure challenge. The court upheld consideration of his three DUI convictions and immigration history. It also accepted the Board’s conclusion that he could seek a waiver through another procedure after his removal order became final, once he obtained consent to reapply for admission. For a California motion, address both the governing framework and why closure changes the available path in the particular case.

What to put in front of the judge

• Identify the legal basis for the request. The 2024 framework applied in B-N-K- permitted closure over one side’s objection after weighing the circumstances. That regulation was later vacated, as Later developments explains. A motion filed now needs to address the authority for closure as well as the facts supporting a pause. Consider a continuance in the alternative.
• Name the change in outcome. Say what approval would let the judge do, or what the case would look like afterward. A pending TPS application alone will generally fall short, so identify anything else the pause would accomplish.
• Give a time frame with evidence. B-N-K- faulted a motion for saying nothing about duration. Ibarra-Vega rejected a lawyer’s estimate of a one- or two-year wait because counsel’s statements are not evidence. The Board called closure beyond six months presumptively unreasonable absent unique circumstances, resting partly on the 2024 rule, which Later developments addresses.
• File proof of eligibility, not just a receipt. The Board treated the absence of prima facie evidence as strongly against closure in Cahuec Tzalam.
• Answer DHS’s actual reason. The Board reads opposition closely. If DHS says asylum can proceed without harming the outside application, explain specifically why that is wrong in your case.
• Say so if another rule requires closure for the filing, and cite that rule directly. It was a separate factor under the 2024 rule, which Later developments addresses. TPS presented no such requirement, because B-N-K- could remain eligible even with a final removal order.
• If your case is already closed, prepare for it to come back. DHS has long been able to move to recalendar or take an immediate appeal to the Board. Ibarra-Vega applied the “reasonably short period” requirement to decisions to recalendar as well.
• Keep the TPS application moving. The statute has its own interim protection for someone who establishes a prima facie case, under section 1254a(a)(4)(B), and it preserves the ability of a national of a designated country to assert TPS in removal proceedings under section 1254a(b)(5)(B). Those are different requests from closure. Confirm that your country’s designation is still in effect.
• Protect your request for a hearing. W-Y-U- explains why a respondent’s wish to have an asylum claim decided weighed against closure. Explain what delay would prevent you from seeking, and address the authority governing the motion.

Later developments

After this article’s date, the regulation the Board applied was vacated. On June 22, 2026, a federal court in Texas entered a consent judgment in Texas v. Department of Justice, No. 7:26-CV-00070-O, ECF 5 (N.D. Tex.). It declared the 2024 rule “in excess of statutory authority and contrary to law.” It declared that “no statute authorizes immigration judges to indefinitely administratively close or suspend adjudication of a case before them.” It vacated the rule, and it barred the Justice Department from writing regulations that let judges administratively close removal proceedings without reaching the merits “absent an express statutory basis to do so.” Three cities and a legal services group tried to intervene to appeal. The district court denied intervention on August 21, 2026 (ECF 23), and a stay on September 2 (ECF 30). The Fifth Circuit denied a stay and summary reversal on September 29 in Texas v. United States, No. 26-10794. The four applicants then asked the Supreme Court for a stay in City of Baltimore v. Texas, No. 26A500, in October 2026. The Supreme Court denied the stay application on October 27, 2026.

That changes the starting point for a motion filed now. The 2024 regulation was the framework the Board applied in B-N-K-. Cruz-Valdez had restored Avetisyan and W-Y-U- while rulemaking was pending. A new motion needs a stated source of closure authority and an explanation of how it applies after the vacatur. For a California case, that analysis should address Gonzalez-Caraveo’s requirement that the judge consider the request independently of DHS’s position. If a separate regulation or court-approved settlement specifically provides for closure, identify its terms and explain why they cover the case.

Cases already closed face their own uncertainty. The Texas court said that, at most, the direct consequence of its judgment “is that cases that are currently closed may be recalendared.” The government told the Supreme Court that the judgment “does not require recalendaring of cases that are currently administratively closed,” and that it “does not prohibit the use of other procedural mechanisms for deferring adjudication of removal cases,” with continuances as its first example.

Continuances have limits of their own. Matter of L. Ramirez, 30 I&N Dec. 157 (BIA Oct. 16, 2026), told judges to apply the L-A-B-R- balancing test to continuances based on a pending visa petition or a future visa, keeping in mind “that good cause does not exist if visa availability is remote.”