While immigration court hearings are commonly regarded as relatively informal civil proceedings, nothing could be further from the truth. Removal defense practice and effective lawyering, especially in this climate, can be daunting. Even the terminology can be deceptive. “Administrative closure,” for instance, is one term that has caused a lot of confusion and for some, maddening frustration.
Administrative closure is a mechanism by which the Immigration Court removes a case from its active calendar. In other words, the case essentially goes into hibernation and no future court date is not set. Closure can occur in a number of contexts but is most often employed these days to allow the respondent (individual facing court proceedings) to pursue a collateral application; or if one is pending, to allow enough time for the application to be adjudicated. For example, a case may be closed to allow an individual to apply for DACA or TPS. In other cases, the court may close a case to permit someone to apply for adjustment of status. Before the Trump administration put a virtual moratorium on prosecutorial requests, ICE government counsel were more receptive to reviewing cases and if warranted, administratively closing cases that it deemed were not priorities for enforcement.
While administrative closure may be of tremendous utility, it is not necessarily a panacea. It is not technically a form of relief, and more importantly, is not the same as judicial termination of a case. When a case is “terminated,” it is concluded and finished. For some, this may be in the form of relief being granted by the court, such as cancellation of removal. For others, this may occur when the government is not able to prove its case and the judge dismisses the charges. The distinction is that termination carries a finality to it while closure is more of a temporary measure.
Some people are surprised to learn that even thought their cases were “closed,” they may need to make a motion to the court to recalendar the case so that the judge can ultimately terminate the case. We have seen this, for example, when the court closes a case to allow the respondent to pursue an I-130 petition. Once and if the I-130 is approved, the person may need to restore the case back to the active calendar so that further relief can be pursued, whether that means terminating the case so an adjustment of status can be filed with USCIS, or filing the I-485 with the court, since jurisdiction still vests with the court unless and until proceedings are terminated. Another situation where these concepts are implicated involves the filing of I-601A provisional waiver. If an individual is lucky enough to get the government counsel and judge to agree to administratively close a case so that a provisional waiver can be pursued, he/she will later need to recalendar the case after approval and request that proceedings be terminated before departing the US.
Recently, there has been litigation and controversy over just how much authority a judge has to administratively close a case, especially over the government’s objection. Just this year, in fact, Attorney General Sessions ordered that Matter of Castro-Turn be turned over to him for review. At issue is whether the Board of Immigration Appeals and Immigration Judges have legal authority to administrative close cases. Should he eviscerate administrative closure, one can only speculate what type of impact this will have on a notoriously backlogged system.