On August 29, 2019, the Court of Appeals for the Fourth Circuit issued a decision in Romero v. Barr, in which it rejected former Attorney General (AG) Jeff Sessions' decision in Matter of Castro-Tum. That latter decision held that immigration judges (IJs) and the Board of Immigration Appeals (BIA) lack the authority to suspend immigration proceedings indefinitely by administrative closure. The Fourth Circuit in Romero held that, to the contrary, IJs and the BIA have inherent regulatory authority to administratively close cases. That circuit court decision, and the underlying case, encapsulate everything that is wrong with immigration proceedings.
Here is the history of the case, from that decision: Removal proceedings commenced against Romero "for being illegally present United States without being admitted or paroled" in 2013.
Interestingly, the court cited as the ground of removability 8 U.S.C. § 1182(a)(9)(B)(ii), that is, section 212(a)(9)(B)(ii) of the Immigration and Nationality Act (INA). Most aliens who enter the United States illegally are charged with removal under section 212(a)(6)(A)(i) of the INA ("Aliens present without admission or parole"), or section 212(a)(7)(A)(i) of the INA (immigrant seeking admission not in possession of a valid immigrant document). Here is section 212(a)(9)(B) of the INA:
Any alien (other than an alien lawfully admitted for permanent residence) who-
(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section [244(e) of the INA] prior to the commencement of [expedited removal] proceedings under section [235(b)(1) of the INA] or [removal proceedings under] section [240 of the INA], and again seeks admission within 3 years of the date of such alien's departure or removal, or
(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,
is inadmissible.
(ii) Construction of unlawful presence
For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.
I will take the Fourth Circuit at its word, and conclude that Romero was either unlawfully present in the past (after entering illegally or overstaying) and voluntarily departed the United States instead of being placed in removal proceedings and subsequently entered illegally, or was unlawfully present in the past and was removed and entered illegally.
Notwithstanding all of that, in 2014, an IJ granted Romero voluntary departure. At some point thereafter, Romero moved to reopen his case because he was the beneficiary of a petition for alien relative (Form I-130) filed by his wife, who was then a lawful permanent resident. The case was reopened, despite the fact that as an alien "illegally present United States without being admitted or paroled", he would have been ineligible for adjustment of status from the IJ under section 245(a) of the INA, and there is no evidence that he was eligible for any other form of relief.
Again, at some point thereafter, Romero filed for administrative closure because his wife had subsequently become a naturalized U.S. citizen and "he wished to file a Form I-601A for a provisional unlawful presence waiver," which could not be adjudicated unless his case was administratively closed.
As the court explained in a footnote, "aliens who have been ordered removed or have been unlawfully present in the United States are subject to various bars of inadmissibility if they depart the country and apply for a visa from abroad." These are the "three- and 10-year bars" to inadmissibility, meaning that an alien who was illegally present cannot reenter the United States again after removal or departure for three years (if the illegal presence lasted for more than 180 days but less than a year) or 10 years (if the alien was here illegally for a year or more). As the Center for Immigration Studies noted back in December 2014, "The purpose of this law is to deter people from living illegally in the United States for long periods of time."
There is a waiver available for these grounds of inadmissibility under section 212(a)(9)(B)(v) of the INA for:
[A]n immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.
There is no description in that 24-page decision of what specific "extreme hardship" Romero's relative would suffer.
The "provisional unlawful presence waiver" (referenced above) was created by administrative fiat in January 2013, more than 16 years after the three- and 10-year bars were instituted. As the Department of Homeland Security (DHS) noted on July 29, 2016:
Prior to the creation of the provisional waiver process in 2013, any individual who was seeking an immigrant visa and became inadmissible under the 3- or 10-year unlawful presence bar upon departure from the United States, could apply for a waiver of such inadmissibility from DHS by filing an Application for Waiver of Grounds of Inadmissibility, Form I-601, with USCIS, but only after having attended the consular immigrant visa interview abroad. Those who applied for waivers under this ``Form I-601 waiver process'' were effectively required to remain abroad for at least several months while USCIS adjudicated their waiver applications. [Emphasis added.]
Note that "at least several months" is less than the three and 10 years (respectively) that Congress intended most of these individuals spend outside of the United States before reentering. As my colleague Jessica Vaughan noted on January 7, 2013, shortly after the provisional unlawful presence waiver was promulgated by the Obama administration: "The average adjudication time of Form I-601 applications is currently over five months." Hardly an extended period of time.
Further, as she stated:
Illegal aliens who marry U.S. citizens and other legal residents, or who have illegally joined family members with legal status, face a tough choice (that results from their original choice to violate immigration laws): either continue to live here illegally (with little chance of deportation unless you commit a crime) or return home to legalize and face a possible bar to re-entry. When applicants choose to go the legal route, if they are found by the consular officer to be otherwise eligible for the green card, about 80 percent of the time they will receive the "extreme hardship" waiver for their prior illegal presence, although it usually takes several weeks for processing.
...
There is some legitimate debate about whether the bar is effective in deterring illegal immigration, whether those who are related to U.S. citizens should get more of a break, and whether those who broke immigration laws should be excused from that and allowed to jump in line ahead of those who follow the rules. But Congress wrote the law, and only Congress has the authority to change it. [Emphasis added]
Again, prior to the promulgation of the "provisional unlawful presence waiver" regulation in January 2013, 80 percent of those aliens subject to the three- and 10-year bars who filed an application for a waiver of that inadmissibility were granted that waiver, in an average of five months. If 80 percent of applicants were found eligible for such a waiver in an average of five months, it is questionable whether Congress' intent to bar those aliens for three or 10 years, respectively, absent "extreme hardship", was truly fulfilled under even the old law. Plainly, the new regulatory scheme subverted that intent even more, not even requiring departure before the issuance of a waiver.
The Form I-601A process, as promulgated by regulation, contained an unusual provision. Specifically, the new 8 C.F.R. § 212.7(e)(4)(v) rendered an alien ineligible for that waiver if: "The alien is in removal proceedings, unless the removal proceedings are administratively closed and have not been recalendared at the time of filing the Form I-601A." (Emphasis added.) To clarify, an alien in removal proceedings could only get a provisional unlawful presence waiver if that respondent's case was administratively closed.
In July 2016, that provision was redesignated as 8 C.F.R. § 212.7(e)(4)(iii) and amended to read as follows: "The alien is in removal proceedings, in which no final order has been entered, unless the removal proceedings are administratively closed and have not been recalendared at the time of filing the application for a provisional unlawful presence waiver." That rule expanded the scope of I-601A waivers in other ways that were not relevant to Romero's case, in particular, by making the waiver available to spouses, sons, and daughters of lawful permanent residents. The original rule had made that waiver only available to spouses, sons, and daughters of U.S. citizens.
Commenters on the proposed rule asserted that provisional waivers should not be available only to those who had their cases administratively closed, with one in particular complaining about the backlogs in the immigration courts that required respondents in removal proceedings "to wait months or years before their cases can be scheduled or heard" so they could be administratively closed. Specifically: "This commenter asserted that requiring the case to be administratively closed before an individual may apply for the provisional waiver places an undue burden on the courts and also creates significant delays." Keep in mind that during those "months and years", the respondent is actually in the United States with the sponsoring relative.
The final rule rejected these complaints, noting:
Due to agency efficiency and resource concerns, DHS declines to adopt the above recommendations. On November 20, 2014, the Secretary directed the Department's immigration components — USCIS, ICE, and CBP — to exercise prosecutorial discretion, when appropriate, as early as possible in proceedings to ensure that DHS's limited resources are devoted to the greatest degree possible to the pursuit of enforcement priorities. Prosecutorial discretion applies not only to the decision to issue, serve, file, or cancel an NTA, but also to other broad ranges of discretionary measures. To promote docket efficiency and to ensure that finite enforcement resources are used effectively, ICE carefully reviews cases pending before the Department of Justice's Executive Office for Immigration Review (EOIR) to ensure that all cases align with the agency's enforcement and removal policies. As such, once an NTA is issued, ICE attorneys are directed to review the case, at the earliest opportunity, for the potential exercise of prosecutorial discretion. The Department of Justice (DOJ) likewise instructs its immigration judges to use available docketing tools to ensure fair and timely resolution of cases, and to ask ICE attorneys at master calendar hearings whether ICE is seeking dismissal or administrative closure of a case. In general, those who are low priorities for removal and are otherwise eligible for LPR status may be able to apply for provisional waivers. Among other things, ICE may agree to administratively close immigration proceedings for individuals who are eligible to pursue a provisional waiver and are not currently considered a DHS enforcement priority. ICE also works to facilitate, as appropriate, the timely termination or dismissal of administratively closed removal proceedings once USCIS approves a provisional waiver. [Emphasis added.]
There are three points to underscore about this response. First, it turns Congress' intent in instituting the three- and 10-year bars on its head. Instead of a procedure to discourage aliens from remaining illegally in the United States, the regulations now facilitate such illegal presence.
Two, all of that "review" of cases by ICE attorneys to determine whether to exercise "prosecutorial discretion" actually misused those "finite resources", which were appropriated to ensure that removal cases involving removable aliens are completed as quickly as possible, not to ensure that the cases that did not meet transitory (and often arbitrary) administrative "priorities" were dismissed or administratively closed. The same is true of the instruction to IJs "to ask ICE attorneys at master calendar hearings whether ICE is seeking dismissal or administrative closure of a case." Simply put, if an alien is removable and not eligible for relief, the alien should be removed — that was Congress' plain intent in the INA.
Had the Obama administration been that concerned about swift justice, it would have asked Congress for more immigration judges, as the current administration has done. It didn't.
Third, the current administration has actually rescinded the priorities mentioned in the July 2016 rule, as I noted in an August 2017 post. As I stated:
The November 20, 2014, memorandum was rescinded by a memorandum issued by then-DHS Secretary John Kelly on February 20, 2017. Even though that memorandum contained a list of aliens who were priorities for removal, ICE is not limiting its enforcement efforts to the aliens on that list. As Acting ICE Director Thomas Homan stated in June 13, 2017, written testimony before the House Committee on Appropriations, Subcommittee on Homeland Security:
To ensure the national security and public safety of the United States, and the faithful execution of the immigration laws, our officers may take enforcement action against any removable alien encountered in the course of their duties who is present in the U.S. in violation of immigration law.
Press reports state that in his oral testimony, Homan similarly told the Subcommittee: "If you're in this country illegally and you committed a crime by being in this country, you should be uncomfortable, you should look over your shoulder. You need to be worried."
In any event, as AG Sessions stated in Matter of Castro-Tum:
Statistics maintained by EOIR reveal that over three decades, from EOIR Fiscal Year 1980 to Fiscal Year 2011, 283,366 cases were administratively closed. But in a mere six years, from October 1, 2011 through September 30, 2017, immigration judges and the Board ordered administrative closure in 215,285 additional cases, nearly doubling the total number of cases subjected to administrative closure.
Considering the requirements for the provisional unlawful presence waiver, it is easy to understand how that could have occurred. At present, the processing times for I-601A waivers can run anywhere from eight to 11.5 months and, as of February 2017, the I-601 approval rate was an astounding 96.22 percent. The exception to the three- and 10-year bars has swallowed the rule. Is any hardship really "extreme" when almost every hardship is?
Back to Romero's case. As the Fourth Circuit noted, the IJ denied his motion for administrative closure in March 2017. Given the fact that the court was unclear as to when exactly he was placed into proceedings, he would have been in removal proceedings by that point for at least three years.
Romero appealed the IJ's denial to the BIA, which sustained his appeal, reversing the IJ. In December 2017 (approximately four years after the case started), DHS filed a motion with the BIA to reconsider that decision, which was pending when AG Sessions issued Matter of Castro-Tum. The BIA subsequently granted DHS's motion, and ordered Romero removed to Honduras in June 2018, more than four years after his case began. And, of course, more than a year later, the Fourth Circuit on August 29, 2019, vacated the BIA's order and remanded it to the BIA.
As the circuit court noted: "Romero advised that if his case were administratively closed, then once the waiver had been approved, he intended to move to re-calendar and terminate removal proceedings so that he could then go through the consular process in Honduras."
To reiterate: There appears to be no dispute from the record that Romero is removable (and if the Fourth Circuit is correct, this is not the first time that he has been in the United States in violation of law). There also appears to be no dispute from the record that Romero is not eligible for any relief that either the IJ or the BIA can grant him (aside from the privilege of voluntary departure, which he was already granted once). He is therefore a removable alien who is ineligible for any relief. But, by the time this matter is completed, more likely than not six years will have passed in which Romero's case was pending with either the IJ or the BIA.
Consider, then, the admonition in 8 C.F.R. § 1003.12, the first line in the first regulation in the Immigration Court Rules of Procedure, which explains the basis for the 34 regulations governing the courts that follow:
Scope of rules.
These rules are promulgated to assist in the expeditious, fair, and proper resolution of matters coming before Immigration Judges. [Emphasis added.]
AG Sessions cited that regulation numerous times in Matter of Castro-Tum. The circuit court alluded to it once in footnote 13, which I will discuss below.
And consider the following, from 8 C.F.R. § 1003.10(b) (captioned "Immigration Judges"), upon which the Fourth Circuit relied heavily in Romero: "In all cases, immigration judges shall seek to resolve the questions before them in a timely and impartial manner consistent with the Act and regulations." (Emphasis added.)
And then consider the following, from 8 C.F.R. § 1003.1(d)(1) (another regulation heavily relied upon by the circuit court):
The [BIA] shall function as an appellate body charged with the review of those administrative adjudications under the Act that the Attorney General may by regulation assign to it. The [BIA] shall resolve the questions before it in a manner that is timely, impartial, and consistent with the Act and regulations.
...
(i) The Board shall be governed by the provisions and limitations prescribed by applicable law, regulations, and procedures, and by decisions of the Attorney General (through review of a decision of the Board, by written order, or by determination and ruling pursuant to section 103 of the Act).
(ii) Subject to these governing standards, Board members shall exercise their independent judgment and discretion in considering and determining the cases coming before the Board, and a panel or Board member to whom a case is assigned may take any action consistent with their authorities under the Act and the regulations as is appropriate and necessary for the disposition of the case. [Emphasis added.]
From an immigration perspective, none of the proceedings after the granting of voluntary departure in Romero can be viewed as "timely" or "expeditious". Despite this, the circuit court held:
Applying the standard tools of interpretation — namely, a reading of the text of the relevant regulations — we clearly discern from the text that the authority of IJs and the BIA to administratively close cases is conferred by the plain language of 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii). ... Both regulations provide that IJs and the BIA "may take any action ... appropriate and necessary for the disposition" of the case. 8 C.F.R. §§ 1003.1(d)(1)(ii) & 1003.10(b) (emphasis added). First, if we give the word "any" its plain meaning, that language grants IJs and the BIA broad discretion in how to manage and resolve cases because "[r]ead naturally, the word 'any' has an expansive meaning, that is, 'one or some indiscriminately of whatever kind.'" ... Given this, "any action ... for the disposition of" the case is read most naturally to encompass actions of whatever kind appropriate for the resolution of a case. 8 C.F.R. §§ 1003.1(d)(1)(ii) & 1003.10(b) (emphasis added). In turn, this would plainly include docket management actions such as administrative closure, which often facilitate, as discussed above and below, case resolution.
There are two points to make here.
The first is that the circuit court failed to take into consideration the AG's authority to issue decisions binding on the BIA's powers (and also the IJ's) in 8 C.F.R. § 1003.1(d)(1)(i). This is not a minor point, given the fact that section 103(a)(1) of the INA makes clear "That determination and ruling by the Attorney General with respect to all questions of law shall be controlling." (Emphasis added.)
If that were not clear enough, as the Ninth Circuit has held: "Immigration judges, or special inquiry officers, are creatures of statute, receiving some of their powers and duties directly from Congress ... and some of them by subdelegation from the Attorney General [under section 103 of the INA]." None of those "powers and duties" that IJs receive "directly from Congress" include the authority to administratively close cases, a point that even the Fourth Circuit concedes ("General administrative closure is not specifically authorized by the INA or the regulations governing IJs or the BIA.").
The second is, taken to its logical conclusion, under the Fourth Circuit's decision, the BIA and IJs could resolve all of their cases in a timely and expeditious manner by simply terminating them all. The circuit court goes so far as to state (in a footnote): "We reserve the question of whether the language 'consistent with their authorities under the Act and regulations' in 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) constitutes a limitation because it does not affect our analysis." Really? How can those explicit restrictions not constitute a limitation? And how can those specific restrictions (particularly on "creatures of statute") not affect the court's analysis?
To recap: Six years will likely pass before an alien respondent in removal proceedings, who is not eligible for any relief at all from the immigration court and BIA, finally reaches a "resolution" in his case. That resolution will likely be termination of a case in which he is removable and not eligible for any relief so that he can (in all likelihood) receive a waiver that is authorized by statute, but not adjudicated in a manner provided for in the INA (a manner that was, for all intents and purposes created out of whole cloth by a previous administration in contravention of Congress' intent to bar aliens who remained illegally in the United States for more than 180 days from reentering immediately) to turn right around and come back to a country that he (if the circuit court is correct) already reentered after he remained in it unlawfully once.
If you wonder why there is a backlog (as of July 2019) of 975,298 cases in the immigration court, or why (according to the court in Romero) there were 330,000 additional cases that were administratively closed (as of October 2018), all you need to do is read Romero itself.
Back to Romero's allusion to 8 C.F.R. § 1003.12. In footnote 13 in its decision, the Fourth Circuit states:
First, to the extent that Castro-Tum contends that administrative closure is not authorized by these regulations because "the authority to suspend such cases indefinitely" "is the antithesis of a final disposition," 27 I. & N. Dec. at 284, Avetisyan demonstrates how suspension of the case may in fact expedite and result in a final disposition.
"Avetisyan" refers to the BIA's decision in Matter of Avetisyan, in which the BIA held that IJs can administratively close cases over the objections of the parties (reversing prior precedent). That case involved a nonimmigrant overstayer who had been admitted on a J-1 for 22 days in March 2003. She was placed into proceedings in April 2004, and stated that she wished to apply for relief that the BIA did not identify in June 2004. In November 2006, she told the court that she had married, that her husband (who had filed a visa application on her behalf) had a pending naturalization application, and that she now had a U.S. citizen child. There were seven subsequent hearings for adjudication of the visa petition, the last in June 2009 when the IJ administratively closed the proceedings over DHS's objection. The BIA issued its decision in January 2012, almost eight years after the case commenced, and there was no indication that the matter at that point was ripe for adjudication of an application for adjustment of status.
At least Avetisyan was eligible for relief the immigration court could grant. That said, how did "suspension of the case ... expedite" (in any reasonable sense of the word) a decision? The laws governing immigration proceedings have become so convoluted that courts are babysitting cases (either on the docket or through "administrative closure") awaiting relief that may not ripen for more than a decade. Nothing in the law suggests this is what Congress ever intended.
In fact, case law suggests the opposite. In INS v. Doherty, the Supreme Court held: "[I]n a deportation proceeding ... as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States." In INS v. Abudu, the Court recognized: "There is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases." Both Doherty and Abudu are more than two decades old, and harken back to a period when respondents in deportation proceedings were filing motions to reopen to keep their cases going. They provided a course correction to that trend. It is likely time for the Supreme Court to provide another such correction.
More immigration judges are needed, and the current administration has done everything that it can to put them on the bench, as noted. That is not enough, however. Here is a simple solution: When a respondent appears in immigration court, the court should make three determinations. First, is the respondent an alien? If the answer is no, terminate the case. If yes, second, the court should determine whether the alien respondent is removable. If the answer is no, terminate the case. If the answer is yes, the court should determine whether the alien is, at that point (a timely and expeditious determination) eligible for any relief from removal. If the answer is yes, grant the relief. If not, order the alien respondent removed. Simple.
But that's not going to happen anytime soon, unless, as noted, the Supreme Court acts. That is everything that is wrong with immigration proceedings today.