On September 13, 2018, 18 senators sent a letter to Secretary of Homeland Security Kirstjen Nielsen and Attorney General Jeff Sessions expressing their concerns that U.S. Immigration and Customs Enforcement (ICE) plans to move to recalendar "thousands of deportation cases that are currently administratively closed." That letter is exceptional for a number of reasons, not least of which is the fact that elected representatives are requesting the reinstatement of a judicial authority that Congress itself has not seen fit to grant to the immigration courts.
As I reported in a May 2018 post captioned "Attorney General Ends Administrative Closure", on May 17, 2018, the attorney general issued a decision in Matter of Castro–Tum, which he had referred to himself on certification. In that decision, he ended the general practice of administrative closure of removal cases. That order does not automatically require the recalendaring of any currently administratively closed cases, however.
I explained "administrative closure" in a January 2018 post:
The Board of Immigration Appeals (BIA) has described it 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.
This procedure is purely a matter of administrative convenience, and does not result in a final order in the matter.
There are regulations that provide for administrative closure in very limited contexts, which I listed in the May 2018 post, that are not affected by the attorney general's order.
In addition, note the use of the word "temporarily" in the foregoing passage from the BIA. As I made clear in that May 2018 post, most administrative closure orders have been anything but temporary:
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.
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. [Emphasis added.]
The senators' letter states that there are approximately 355,000 cases that are currently administratively closed. It contends: "Any plan to reopen and recalendar all of the administratively closed cases will undeniably overwhelm the already flooded immigration court backlog."
A purported June 2018 memo providing guidance to ICE attorneys in implementing the attorney general's order, which was published by the American Immigration Lawyers Association (AILA), appears to undermine those concerns. That memo states that DHS intends to recalendar all of the cases that were administratively closed "for reasons other than authorization by regulation or judicially approved settlement agreement." DHS makes clear, however, that it actually plans to prioritize those motions to recalendar in a rather methodical manner.
Specifically, that memo provides the following guidance to ICE attorneys in the Office of the Principal Legal Advisor (OPLA):
As a way of focusing DHS's efforts, OPLA offices in the field should begin filing motions to recalendar based on the five priorities listed below:
- Priority #1: Cases in which the alien is detained.
- Priority #2: Cases in which the alien has a criminal history, or where the cases involve human rights or national security issues.
- Priority #3: Cases in which DHS 's most recent motion to recalendar was denied.
- Priority #4: Cases administratively closed over DHS's objection (e.g., interlocutory appeals for 1-601 A, U-visa, 1-360, derogatory issues, etc.).
- Priority #5: Case-by-case determination at the discretion of the local Chief Counsel considering available resources and the existing backlog in the local docket. [Emphasis added.]
The first two priorities are cases that likely never should have been administratively closed to begin with, or that should have been recalendared as a matter of course. The third priority also makes sense because, absent authority to administratively close cases, DHS would logically want to recalendar cases that it previously wanted to recalendar already.
The same is true of the fourth priority. In fact, up until 2012, when the BIA issued its decision in Matter of Avetisyan, those cases never would have been administratively closed, because prior precedent made clear that cases were not to be administratively closed over the objection of either party, following the BIA's 1990 decision in Matter of Lopez-Barrios.
As for the fifth priority, this guidance reflects the fact that DHS is more than aware of the limited resources available to the immigration courts. If anything, it preemptively responds to and addresses the issues raised in the letter sent by the 18 senators in September.
Recent reporting bears this out. According to an August 15, 2018, article on BuzzFeed News:
So far this fiscal year, attorneys for Immigration and Customs Enforcement have sought the reactivation of nearly 8,000 deportation cases that had been administratively closed — meaning pushed off the court's docket. The previous fiscal year, which included nearly four months of the Obama administration, there were nearly 8,400 such requests.
The pace of such requests is nearly double that of the last two years of the Obama administration, when there were 3,551 and 4,847 such requests, respectively. Judges generally grant requests to restart cases, experts say.
Again, that article is more than a month old, and perhaps the pace of motions to recalendar have picked up since then. But this hardly seems to be the overwhelming onslaught that the 18 senators warned of, particularly given the fact that the courts currently had more than 746,000 cases on their dockets already, as of July 2018.
Nor would it be in ICE's interest to move to recalendar 355,855 cases anyway. Almost doubling the immigration courts' dockets would bring pending cases to a virtual halt, and logically the agency would want to have the 746,000-plus pending cases resolved in a timely manner.
One final point: Congress has the ability to give immigration judges the authority to administratively close cases, but it has never done so. Eighteen senators represent 18 percent of the United States Senate, and Democrats currently hold 49 seats in the chamber. If the 18 senators really wanted to give that authority to immigration judges, it would be a relatively simple task. They would either have to convince just 42 of their colleagues of the wisdom of such action (and then get that bill passed in the House), or agree to some minor immigration concession with the Trump administration or the Republicans in Congress to do so.
When I worked for Congress, such deals were made regularly, and as my colleague Jessica Vaughan noted in June 2018, there were two separate immigration bills that were considered in the House of Representatives that month (one of which offered a major amnesty), but were defeated. Such bills offer the perfect vehicle to make changes, such as granting immigration judges administrative closure authority. I am unaware, however, of any amendments that were offered to do so, even though the attorney general issued his decision ending administrative closure the month before.
Even elected officials have the right to say whenever they want. Complaints about process ring hollow, however, when they come from individuals who actually have the power to make the changes they demand.