The Board of Immigration Appeals (BIA) — the administrative DOJ tribunal that considers challenges to immigration decisions — recently issued an opinion in Matter of Angel Damian Orozco Becerra and Matter of Neythan Orozco Becerra. The BIA held the immigration judge handling their cases had erred in failing to order two minor brothers from Mexico deported after they and their mother repeatedly failed to appear for their removal proceedings. It’s the latest step to roll back what the House Judiciary Committee has referred to as the Biden administration’s “quiet amnesty” for aliens here illegally.
“Quiet Amnesty”
In October 2024, the House Judiciary Committee issued an interim staff report captioned: “Quiet Amnesty: How the Biden-Harris Administration Uses the Nation’s Immigration Courts to Advance an Open-Borders Agenda”.
That report explained that the Biden administration had allowed removable aliens to remain in this country by tanking their cases in immigration court using three separate procedural maneuvers: administrative closure, termination, and dismissal.
As the BIA described the first practice in 2012: “Administrative closure ... is used to temporarily remove a case from an Immigration Judge's active calendar or from the Board's docket.”
The Board continued, explaining that administrative closure:
is a docket management tool that is used to temporarily pause removal proceedings. Administrative closure is not a form of relief from removal and does not provide an alien with any immigration status. After a case has been administratively closed, either party may move to recalendar it before the Immigration Court ... or to reinstate the appeal before the Board. [Emphasis added.]
Put another way, administrative closure allows immigration judges and the BIA to shelve cases they do not want to, or cannot, deal with, at least at the time of closure.
There are certain instances where closure is appropriate, such as when the alien (a “respondent” in removal proceedings) has a visa application pending with USCIS that, once adjudicated, would allow the respondent to adjust status.
But as the BIA explained in its 1988 opinion in Matter of Amico: “When a case is administratively closed, the respondent is allowed, by simply failing to appear, to avoid an order regarding his deportability, and the consequences an order of deportation could bring.”
Then, there’s the fact that administrative closure has proven to be anything except temporary.
As the latest DOJ statistics reveal: “the average length of time a case has been administratively closed is 6,389 days (approximately 17.5 years) and the median length of time is 4,515 days (approximately 12.5 years)”.
Dismissals, on the other hand, traditionally were only issued by regulation where DHS “improvidently issued” a Notice to Appear (“NTA”, the charging document in removal proceedings, similar to a complaint in a criminal case), in situations where, for example, the respondent wasn’t in this country, was dead, was actually a U.S. citizen, or wasn’t removable.
Terminations were rarer still, issued only in the exercise of discretion when a removable alien was prima facie eligible to naturalize and there were “exceptionally appealing or humanitarian factors” in the alien’s case that prompted the government to believe the alien should be allowed to seek citizenship.
Keep those standards in mind as I explain that according to DOJ, immigration judges and the BIA under Biden terminated nearly 242,500 pending removal cases, dismissed almost 613,500 more, and administratively closed more than 129,000 others — 985,000-plus cases combined in total.
“Efficient Case and Docket Management in Immigration Proceedings”
While those terminations, dismissals, and administrative closures were issued throughout the last administration, Biden’s DOJ blessed it all by amending various regulations governing NTAs and removal proceedings in a final rule published in the Federal Register in May 2024 and captioned “Efficient Case and Docket Management in Immigration Proceedings”.
Under the guise of “afford[ing] immigration judges and the Board flexibility to efficiently allocate their limited resources, and protect due process for parties before immigration judges and the Board”, that rule permitted immigration judges and the BIA to dispose of cases more expansively than they had been allowed to in the past — and in my opinion, to ignore Congress’s express dictates.
The most significant changes were to 8 C.F.R. § 1003.18.
Pre-amendment, it had been a largely ministerial regulation captioned “Scheduling of cases” but after the May 2024 final rule it was retitled “Docket management” with new a subsection (c) that gave the parties broad authority to seek administrative closure while limiting immigration judges’ authority to refuse.
Not that immigration judges didn’t receive something out of the change, as a new subsection (d) in 8 C.F.R. § 1003.18 expanded their termination authority, including, with DHS’s assent or non-opposition, for “purely humanitarian reasons”.
Trump II
While the second Trump administration hasn’t rescinded that Biden rule (yet), it plainly wasn’t happy with how its predecessor had axed nearly one million pending removal proceedings, as evidenced by the fact that DOJ now refers to those dismissed, terminated, and administratively closed matters collectively as “Amnesty Cases” on its statistical website.
The BIA also has been attempting to restore order and expediency to removal proceedings through precedent decisions that have limited immigration judges’ authority to terminate, dismiss, and administratively close pending cases.
For example, in its late April opinion in Matter of Santiago-Santiago, as I recently explained, the Board held that an immigration judge had erred in terminating the removal proceedings of an alien granted DACA without at first considering DHS’s opposition to ending the matter.
Then, there is the BIA’s March opinion in Matter of Medina Madrid, where the Board reversed an immigration judge order denying DHS’s motion to recalendar a case administratively closed since 2013, where the alien entered illegally but doesn’t want to proceed until a waiver of her unlawful presence in this country is adjudicated.
Similarly, in its late February opinion in Matter of Ibarra-Vega, the BIA sustained a DHS appeal of an immigration judge order that denied the department’s motion to recalendar, where the alien has a U-visa application that has been pending since May 2018, with no final adjudication in sight.
As the BIA held in that case:
The Board and Immigration Judges have no authority to use administrative closure as a de facto extra-statutory form of relief that effectively grants amnesty to thousands of removable aliens because they may be eligible for a visa sometime in the future.
Matters of Orozco Becerra
Which brings me to the latest BIA opinion, in the Orozco Becerra brothers’ cases.
The two are Mexican nationals who showed up with their mother and an (apparently unrelated) “adult male” at a port of entry in June 2023, likely under the Biden administration’s then-CBP One app port interview scheme (which has since been ended under Trump II).
Because they all lacked proper admission documents, an immigration officer served the mother with NTAs for her and her two sons, charging them with inadmissibility under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA).
In accordance with Biden border-release policies, the three were sent on their way with notices that they were to appear in the San Francisco Immigration Court on October 30, 2024, at 9:00 AM.
They failed to appear, but instead of ordering them removed in absentia, the immigration judge reset the matter to April 2, 2025, with a notice of the rescheduled hearing being sent to their last known address.
They didn’t appear at that hearing, either, but the immigration judge — concluding DHS’s evidence was for some reason inadequate to establish the alienage of the boys and their mother — told DHS to submit additional evidence and rescheduled the matter to August 21, 2025.
DHS complied by submitting “birth certificates for the respondents and the accompanying adults as well as identity cards for the accompanying adults”, but even though notice of that hearing was also sent to the respondents’ last known address, neither the mother nor her sons appeared at the August 21 hearing, either.
Plainly sensing a pattern, DHS asked the immigration judge to issue orders of removal for the mother and the Orozco Becerra brothers in absentia, in accordance with section 240(b)(5)(A) of the INA, which states, in pertinent part:
Any alien who, after written notice required ... has been provided to the alien or the alien's counsel of record, does not attend a proceeding under this section, shall be ordered removed in absentia if [DHS] establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable. [Emphasis added.]
In response, the immigration judge ordered the mother and the other adult removed, but “declined to order the minor respondents removed in absentia, concluding that they could not be held responsible for their mother’s failure to appear” and that “entering an in absentia removal order would violate their due process rights”.
“Instead”, the BIA explained, the immigration judge “administratively closed the minor respondents’ removal proceedings over DHS’ objection”.
The Board sustained the appeal, concluding section 240(b)(5)(A) of the INA “imposes a mandatory duty on Immigration Judges to issue an in absentia order against an alien who does not appear for his or her removal hearing if the statutory requirements are met”. (Emphasis added.)
“By administratively closing the respondents’ removal proceedings instead of ordering them removed”, the BIA explained, the immigration judge had “improperly applied a discretionary regulation” — 8 C.F.R. § 1003.18(c) — “in a manner that directly conflicts with Congress’ express mandatory command”.
Doubling down, and to resolve any lingering doubts about how the court below should proceed on remand, the BIA made clear that:
The Immigration Judge was required by statute to order the respondents removed in absentia when they failed to appear and DHS established proper notice and removability. The Immigration Judge had no authority to supplant the specific, unambiguous statutory command enacted by Congress with the more general discretionary regulation promulgated by the agency.
The Immigration Judge’s Due Process Concerns
Finally, the BIA highlighted its 2002 opinion in Matter of Gomez-Gomez, where the Board had rejected a similar due process holding in the case of a minor alien who failed to appear, finding that it would “effectively mean[] that no alien under the age of 14 could ever be deported in absentia (at least absent the assignment of an adult guardian to each such alien)”.
“If that were Congress’s intent,” the BIA in Matter of Gomez-Gomez held, “section 240(b)(5)(A) of the Act ... would presumably contain such an exception”, which it doesn’t.
Instead, the BIA there found that “it is implicit in the statute and regulations dealing with notice that an adult relative who receives notice on behalf of a minor alien bears the responsibility to assure that the minor appears for the hearing, as required”.
Because the Orozco Becerra brothers and their mother “received proper notice of their removal hearings and had several opportunities to appear for their hearings through service of the notices to appear and hearing notices on their mother”, the BIA here concluded that the mother had a duty to ensure their appearance and that they had received all the process they were due under the Fifth Amendment.
Accordingly, the BIA found “the Immigration Judge erred by not entering in absentia removal orders”, reinstated the removal proceedings in the brothers’ cases, and remanded the case back to the immigration judge.
“The Expeditious, Fair, and Proper Resolution” of Removal Proceedings
Trump II has yet to rescind the Biden administration’s “quiet amnesty” regulations, but at least the BIA is restricting how judges apply those lavish rules when dismissing, terminating, and administratively closing pending cases.
As 8 C.F.R. § 1003.12 explains, the immigration regulations were written to “assist in the expeditious, fair, and proper resolution of matters coming before Immigration Judges”. The Board plainly intends to ensure the courts keep these lofty goals in mind when applying the rules.