Silence Is Not “Affirmative Non‑Opposition”: Administrative Closure Requires an Explicit DHS Indication Under 8 C.F.R. § 1003.1(l)(3)

1. Introduction

In Ayman Mohamady-Abdelghaffar v. Attorney General United States of America (3d Cir. Aug. 24, 2026) (non-precedential), the Third Circuit reviewed the Board of Immigration Appeals’ (BIA) denial of (1) a motion to remand to the Immigration Judge (IJ) and (2) a request that the BIA itself administratively close removal proceedings.

The petitioner, an Egyptian national who entered without authorization and was charged as inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I), initially pursued asylum-related relief but later withdrew his protection application after his wife filed an I-130 family visa petition (approved in 2019). He sought administrative closure principally to avoid detention following entry of a removal order while he pursued a path to lawful admission that would require waiver-related steps (including the opinion’s discussion of the unlawful presence bar and related waivers).

The key issues on review were: (a) whether DHS’s failure to respond to the closure/remand motions required the BIA to treat the motions as “unopposed” under 8 C.F.R. § 1003.1(l)(3), and (b) whether the BIA abused its discretion in finding the “totality of the circumstances” did not justify administrative closure.

2. Summary of the Opinion

The Third Circuit denied the petition for review, holding the BIA did not abuse its discretion.

  • No “unopposed” treatment from silence: DHS’s non-response was not an “affirmative” indication of non-opposition under 8 C.F.R. § 1003.1(l)(3).
  • Counsel’s assertions are not evidence of DHS’s position: References in the motion to purported DHS emails did not satisfy the regulation because “statements of counsel in a motion are not evidence.”
  • Discretionary factor weighing upheld: The BIA permissibly weighed relevant administrative-closure factors, including that a removal order would not preclude pursuit of a provisional waiver, and that petitioner failed to provide an anticipated closure duration.
  • No remand required: Because the BIA could apply the same administrative-closure standard as the IJ and denied closure itself, denying remand was not an abuse of discretion.

3. Analysis

A. Precedents Cited

  • Matter of Castro- Tum, 27 I. & N. Dec. 271 (A.G. 2018).
    This Attorney General decision had restricted IJs’ ability to administratively close cases. The IJ’s denial of administrative closure was affirmed as correct at the time because the IJ was bound by then-controlling authority. The Third Circuit accepted that the IJ’s compliance with Castro-Tum was not error.
  • Matter of Cruz-Valdez, 28 I. & N. Dec. 326 (A.G. 2021).
    During the appeal, Cruz-Valdez overruled Matter of Castro- Tum, restoring administrative-closure authority in appropriate circumstances. The petitioner relied on this change to seek remand and closure. The court’s analysis shows that restoration of closure authority does not compel closure; it merely reopens the discretionary inquiry under the governing regulatory standard.
  • Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503, 506 (BIA 1980).
    The Third Circuit invoked this principle for a basic evidentiary point: “statements of counsel in a motion are not evidence.” That mattered because petitioner attempted to treat counsel’s characterization of DHS emails as an “affirmative” non-opposition signal. The citation supported the court’s refusal to equate advocacy statements with proof of DHS’s position.
  • Inestroza-Tosta v. Att'y Gen., 105 F.4th 499, 517 (3d Cir. 2024) (abrogated on other grounds by Riley v. Bondi, 606 U.S. 259, 267-73 (2025)).
    This case supplied the Third Circuit’s standard for reviewing the BIA’s factor-analysis: the BIA “need not evaluate every factor in detail” and acts within its discretion if it weighs the relevant factors. The panel also noted the partial abrogation by Riley v. Bondi “on other grounds,” leaving intact the proposition used here regarding the level of detail required in the BIA’s discussion of administrative-closure factors.
  • Riley v. Bondi, 606 U.S. 259, 267-73 (2025).
    Cited only to clarify that Inestroza-Tosta was abrogated “on other grounds.” The panel used Inestroza-Tosta for a narrow administrative-law proposition about the sufficiency of the BIA’s explanation, not for the abrogated point.

B. Legal Reasoning

1) “Affirmatively indicated its non-opposition” requires an explicit signal, not silence

The court treated the text of 8 C.F.R. § 1003.1(l)(3) as controlling: the BIA “shall” grant a motion to administratively close only when “the other party has affirmatively indicated its non-opposition.” The panel then drew a bright line: no response is not an affirmative indication. DHS “did not take any action whatsoever,” and the court refused to infer a litigant’s stance from inaction.

This reasoning reflects two administrative-law values: (i) the regulation’s plain-language requirement of an “affirmative” indication, and (ii) institutional caution against deeming silence to be consent when the regulation requires an express position.

2) Counsel’s description of communications cannot substitute for record evidence of DHS’s position

Even if counsel referenced emails suggesting DHS non-opposition, the court held that how that claim was presented mattered: a motion’s assertions are not evidence. By citing Matter of Ramirez-Sanchez, the panel reinforced that an “affirmative indication” must appear as a procedurally valid record item (e.g., DHS filing, joinder, or formal written statement), not merely as an advocate’s representation.

3) Discretionary factor balancing under 8 C.F.R. § 1003.1(l)(3)(i)

The court upheld the BIA’s “totality of the circumstances” analysis under the regulation’s non-exhaustive factor list. Two aspects were central:

  • Closure not shown to be necessary for DHS relief: The BIA noted that a removal order would not preclude petitioner from pursuing or obtaining “a provisional unlawful presence waiver,” which undercut the stated rationale for closure and weighed against factor (C) (whether closure is required for DHS action).
  • Undefined duration weighed against closure: The BIA treated the lack of information about “anticipated duration” as a negative under factor (E), reflecting that open-ended closure is disfavored when the movant cannot provide a concrete timeline.

Importantly, the panel relied on Inestroza-Tosta v. Att'y Gen. for the proposition that the BIA need not march through every factor; it suffices to weigh those relevant to the case.

4) Denial of remand

The court also upheld denial of remand because the BIA and IJ apply “identical” standards for administrative closure (citing the parallel regulatory provisions), and the BIA permissibly denied closure itself. In other words, remand would not change the legal test and would be unnecessary if the BIA’s first-instance denial was within discretion.

C. Impact

Although designated “NOT PRECEDENTIAL,” the decision is instructive in three practical ways for administrative-closure litigation in the Third Circuit:

  1. Non-response is not consent: Parties should not rely on DHS silence to trigger mandatory grant language under 8 C.F.R. § 1003.1(l)(3). Practitioners should seek a written, filed DHS statement or a joint motion if they want the motion treated as affirmatively unopposed.
  2. Build an evidentiary record: If DHS communicated non-opposition informally, this decision signals the need to convert that communication into an appropriate filing or stipulation; counsel’s narrative in a motion is vulnerable to rejection as “not evidence.”
  3. Concrete timelines matter: On the merits, movants should provide a credible anticipated duration and a plan for status updates; the absence of timing information can be treated as a substantive negative factor, not a harmless omission.

4. Complex Concepts Simplified

  • Administrative closure: A procedural tool that pauses (removes from the active docket) a removal case. It does not grant immigration status; it simply suspends proceedings, often while an immigrant pursues some other process (like a visa petition or waiver).
  • Motion to remand: A request that the BIA send a case back to the IJ for further proceedings (for example, to consider a new form of relief or a changed legal standard).
  • “Affirmatively indicated its non-opposition” (8 C.F.R. § 1003.1(l)(3)): The opposing party must expressly state it does not oppose. The opinion explains that silence or failure to respond is not “affirmative.”
  • “Statements of counsel are not evidence”: Lawyers’ assertions in briefs/motions are arguments, not proof. If a fact matters (e.g., DHS’s position), it must be supported in the record through admissible or procedurally proper means (such as filings, declarations, or official statements).
  • Provisional unlawful presence waiver: A DHS process that may forgive certain unlawful-presence inadmissibility consequences. The BIA relied on the point that a removal order would not necessarily prevent pursuing this waiver, weakening the necessity of pausing the removal case.

5. Conclusion

The Third Circuit’s decision reinforces a clear procedural rule under 8 C.F.R. § 1003.1(l)(3): DHS silence is not an affirmative indication of non-opposition, and counsel’s characterization of informal communications is not evidence. On the merits, the opinion underscores that administrative closure remains discretionary even after Matter of Cruz-Valdez; the BIA may deny closure where the movant fails to show closure is necessary for collateral relief and fails to provide a meaningful timeline. Even as a non-precedential disposition, the decision provides a roadmap for what the BIA and the Third Circuit will treat as sufficient record support and adequate factor-based reasoning in administrative-closure disputes.