In a previous article, we briefly discussed the differences between administrative closure and judicial termination of an immigration court case. Just last week, Attorney General Jeff Sessions rendered his ruling in Matter of Castro-Tum, 27 I & N Dec. 271 (A.G. 2018). When AG Sessions certified the case to himself a few months ago, the immigration bar was understandably apprehensive, and now it looks like some of those fears have materialized. The decision essentially strips immigration judges of their authority to administratively close cases, when warranted, in the interests of judicial efficiency.
Under previous Board of Immigration Appeals (BIA) authority, immigration judges and the Board routinely utilized administrative closure to maintain its docket and focus on cases where respondents did not have ancillary relief or matters pending with other agencies, such as USCIS. Before the Trump Administration, the government itself widely exercised its prosecutorial discretion to close low-priority cases in order to focus on cases warranting enforcement. When both parties agreed, the judge would normally remove the case from its active calendar. In some instances, however, judges could use their authority to close a case over the objection of one party after carefully considering the following factors under Matter of Avetisyan:
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 [relief] 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. The Board further fleshed out this doctrine in Matter of W-Y-U, holding that a party opposing administrative closure must furnish persuasive reasons why the case should continue without interruption.
In light of the overwhelming backlog of cases, immigration lawyers and advocates have always recognized this mechanism as an inherent exercise of judicial authority to effectively manage its own calendar. In practice, judges rarely abused this authority and only closed cases over the objection of a party after consideration under the Avetisyan and Matter of W-Y-U calculus. Now, however, judges will no longer retain this prerogative. Under the decision, the Attorney General has determined that “immigration judges and the Board do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. Accordingly, immigration judges and the Board may only administratively close a case where a previous regulation or a previous judicially approved settlement expressly authorizes such an action. Where a case has been administratively closed without such authority, the immigration judge or the Board, as appropriate, shall calendar the case on the motion of either party.” Given that the aforementioned exceptions are extremely limited, the decision virtually establishes a moratorium on administrative closure.
As a result of this directive, individuals in immigration court may no longer be able to petition the court to administratively close their cases so that they may pursue or receive a final decision on pending cases outside of immigration court. This potentially means I-130, I-360, I-751, N-400, TPS and U visa applications, just to name a few. I-601A provisional waivers are also potentially affected by this new development. Practically speaking, for people who depend on some of these applications, the absence of administrative closure may arbitrarily rob them of relief.
Now, more than ever, individuals in immigration court are facing formidable legal challenges that threaten to deprive them of their rights. To learn what you, or someone you care about, can do to protect yourself, please contact our office. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship, nor should it be relied upon as advice in lieu of consultation with an attorney.