Attorney General Ends Administrative Closure

By Andrew R. Arthur on May 18, 2018

On May 17, 2018, the attorney general issued a decision in Matter of Castro–Tum, a case that he had referred to himself on certification, in which he ended the general practice of administrative closure of removal cases.

I previously wrote about administrative closure (and the attorney general's review of it on certification in this case) in a January 9, 2018, post. As I explained therein:

The Board of Immigration Appeals (BIA) has described [administrative closure] as "a procedural tool created for the convenience of the Immigration Courts and the Board." As the BIA explained:

Administrative closure, which is available to an Immigration Judge and the Board, is used to temporarily remove a case from an Immigration Judge's active calendar or from the Board's docket. In general, administrative closure may be appropriate to await an action or event that is relevant to immigration proceedings but is outside the control of the parties or the court and may not occur for a significant or undetermined period of time.

Well, at least that was the law until the attorney general issued his final decision. As he stated:

I hold 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.

As the foregoing suggests, there are regulations that provide for administrative closure in very limited circumstances, involving aliens covered by the decision in American Baptist Churches v. Thornburgh; certain Nicaraguan and Cuban nationals; specified Haitian nationals; certain nationals of Vietnam, Cambodia, and Laos; victims of human trafficking applying for T nonimmigrant status; and spouses and children of permanent residents in the United States waiting to obtain "V nonimmigrant" status. In addition, pursuant to the settlement agreement in Barahona–Gomez v. Ashcroft, immigration judges and the BIA were required to administratively close cases of class members. Those provisions are not affected by the attorney general's order.

In his decision, the attorney general noted that while administrative closure has been an authority utilized by the immigration courts and the BIA since the 1980s, the use of this authority has "grown dramatically as the [BIA] has made administrative closure easier to obtain." Specifically, from FY 1980 to FY 2011, 283,366 cases were administratively closed, while "in a mere six years, from October 1, 2011, through September 30, 2017, immigration judges and the [BIA] ordered administrative closure in 215,285 additional cases." Less than a third of those cases have been recalendared, a fact that the attorney general referenced.

As the attorney general noted, for years, administrative closure was a procedure that could only be used where both parties agreed to closure, but that changed when the BIA issued its decision in Matter of Avetsyan. The BIA held there that immigration judges and the BIA "may administratively close removal proceedings, even if a party opposes, if it is otherwise appropriate under the circumstances."

In addition, beginning in 2011, the Department of Homeland Security (DHS) "used administrative closure as a way to decline to prosecute low priority cases without formally terminating them," a practice that ended in 2017, as Attorney General Sessions noted in his decision.

That order does not automatically require the recalendaring of the more than 350,000 administratively closed cases, however. Specifically, the attorney general held:

I am cognizant of the need to return these cases to the active docket so that these matters can proceed expeditiously. Requiring recalendaring of all of these cases immediately, however, would likely overwhelm the immigration courts and undercut the efficient administration of immigration law. ... Consequently, I now order that all cases that are currently administratively closed may remain closed unless DHS or the respondent requests recalendaring. Upon the motion of either party, an immigration judge or the Board, as relevant, shall recalendar the case. I expect the recalendaring process will proceed in a measured but deliberate fashion that will ensure that cases ripe for resolution are swiftly returned to active dockets.

In certain limited instances, a general grant of authority to administratively close cases benefits the immigration court, where, for example, an otherwise mentally incompetent alien was receiving treatment that would enable that alien to achieve competency. Such cases can, however, also be addressed by motions to continue.

Unfortunately, the abuses of the administrative closure authority violated the regulatory principle that matters before the immigration court be concluded expeditiously. Given this, the attorney general acted appropriately in declining to continue this practice.