On June 22, the America First Legal Foundation (AFL) filed a complaint on behalf of the state of Texas challenging the Biden administration’s May 2024 “Administrative Closure Rule”, which expanded the use of a judicial tool originally intended to put aliens’ removal proceedings temporarily on ice while other adjudications were playing out into one that stayed those cases indefinitely. And that same day Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas (N.D. Texas) vacated the rule, a key element of what the staff at the House Judiciary Committee termed Biden’s “quiet amnesty”.
Administrative Closure
At issue, as the name of the rule suggests, is “administrative closure”, which the Board of Immigration Appeals (BIA) has described as “a procedural tool created for the convenience of the Immigration Courts and the Board”.
More precisely, as the BIA has 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.
Don’t go looking for that “procedural tool” in the Immigration and Nationality Act (INA), however.
And while the Supreme Court has held there’s a “strong public interest” in bringing immigration proceedings “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”, the justices didn’t mean administrative closure — they meant real closure, with a final order for the government or the alien.
Moreover, there’s little doubt that this “procedural tool” has been serially abused over the years, even before the Biden administration issued its rule.
Almost 30 years ago, in Matter of Amico, the BIA reversed an IJ closure of a deportation hearing at which the respondent failed to appear, concluding: “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.”
Jeff Sessions Tries to End Administrative Closure
Officially, there are nearly 3.6 million pending cases in the immigration court backlog, but nearly nine years ago, at the outset of the Trump I, I argued the true number of then-pending cases (a more modest 976,000 at the time) was higher than the official statistics displayed due to administrative closure.
Likely coincidentally, five months after I pointed out those vulnerabilities, then-Attorney General (AG) Jeff Sessions ordered a review of administrative closure, and in May 2018 issued an opinion in Matter of Castro-Tum ending it except where required by regulation or under settlement agreements.
Importantly, he noted: “From 2011 to early 2017, DHS used administrative closure as a way to decline to prosecute low priority cases without formally terminating them.” Keep that in mind as I explain what happened next.
The Backlash
AG Sessions didn’t require immigration judges or the BIA to immediately reinstate all 330,000-plus cases then administratively closed in Matter of Castro-Tum, explaining:
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.
Nevertheless, advocates were very displeased.
In September 2018, 18 senators sent a letter to Sessions and then-DHS Secretary Kirstjen Nielsen to “express” their “concerns” that reopening those closed cases would “undeniably overwhelm the already flooded immigration court backlog” (which by that point stood at 1.1 million-plus pending cases).
“Given the population of individuals whose cases were subject to administrative closure,” those senators argued, “this waste of resources cannot be justified.”
Resources were definitely being “wasted”, except they were being wasted by administrative closure, not by ending the practice.
In any event, aliens and advocates filed numerous lawsuits to block Matter of Castro-Tum and continue the practice of administratively closing pending removal cases.
In one of those challenges, Morales v. Barr, then-Judge (now Supreme Court Justice) Amy Coney Barrett writing for a unanimous Seventh Circuit panel effectively overruled AG Sessions, holding “immigration judges are not precluded from administratively closing cases when appropriate”.
The Biden Administration Turbocharges Administrative Closure
The Biden administration was quick to resurrect administrative closure, even in those circuits that had not rejected Matter of Castro-Tum.
First, in July 2021, then-AG General Merrick Garland issued Matter of Cruz-Valdez, overruling Sessions’s opinion “in its entirety” and restoring prior BIA opinions that had supported the practice.
“Prosecutorial discretion” was the Biden administration’s go-to excuse for not enforcing the INA, and “prioritization” of certain cases (to the detriment of all others, as I’ll explain below) was the tool it used to achieve it, so it’s noteworthy Garland argued that administrative closure:
has served to facilitate the exercise of prosecutorial discretion, allowing government counsel to request that certain low-priority cases be removed from immigration judges’ active calendars or the Board’s docket, thereby allowing adjudicators to focus on higher-priority cases. [Emphasis added.]
Finally, as noted, Garland’s DOJ published the administrative closure rule in May 2024.
Among other things, that rule amended a prior regulation first implemented in 1997 and later recodified at 8 C.F.R. § 1003.18, which had previously exclusively governed the scheduling of cases — not their closure or termination.
Specifically, that amending rule (with the Kafkaesque name “Efficient Case and Docket Management in Immigration Proceedings”) expanded the ability of respondents and DHS to seek closure, while at the same time limiting the authority of immigration judges and the BIA to deny such requests.
The “Quiet Amnesty”
Five months later, in October 2024, House Judiciary staff issued an interim report captioned “Quiet Amnesty: How the Biden-Harris Administration Uses the Nation’s Immigration Courts to Advance An Open-Borders Agenda”.
As the committee report explained: “Under the Biden-Harris Administration, more than 700,000 illegal aliens have had their cases dismissed, terminated, or administratively closed, allowing those aliens to stay in the country indefinitely without facing immigration consequences.”
Keep in mind that, by the time that interim staff report appeared, the immigration court backlog stood at more than 3.9 million, double and then some of what it had been when Biden arrived in FY 2021.
The then-administration’s “catch-and-release” border policies drove nearly all of that increase, but if you add the purported 700,000-plus “dismissed, terminated, or administratively closed cases” identified by House Judiciary staff, the backlog would have topped 4.6 million — a virtually insurmountable backlog that could have ended the immigration court’s ability to function.
I say “purported”, because as bad as that report sounded, the actual statistics were worse. DOJ reported in April that nearly a million cases had either been terminated (more than 242,500), dismissed (613,000-plus), or administratively closed (129,330) during the four years of the Biden administration.
AFL’s Claims
AFL challenged that rule on behalf of Texas (the named plaintiff), arguing first that it exceeded DOJ’s authority under section 240(c)(1)(A) of the INA, which begins: “At the conclusion of the proceeding the immigration judge shall decide whether an alien is removable from the United States.”
If the proceeding is indefinitely closed, the decision plainly isn’t on “whether the alien is removable”.
Next, AFL contended that the rule was “arbitrary and capricious”, “an abuse of discretion”, and otherwise in violation of the Administrative Procedure Act (APA), the federal statute that governs executive branch decision making.
Specifically, plaintiffs argued that the rule “failed to consider (or even address) the compounding impact of freewheeling administrative closure authority paired with the policy of affirmatively refusing to pursue the immigration cases announced in” memos that had been issued by then-DHS Secretary Alejandro Mayorkas and ICE Principal Legal Advisor (PLA) Kerry Doyle.
I’ve analyzed (at length) both the September 2021 Mayorkas memo and the April 2022 one issued by PLA Doyle, but basically the former required DHS officers to consider irrelevant “mitigating factors” (the alien’s age, mental issues, whether any of the alien’s relatives work for the government, etc.) before taking “enforcement action” (including commencing investigations), and the latter imposed those restrictions on ICE attorneys in prosecuting removal cases.
Moreover, AFL argued that the rule:
failed to consider how hundreds of thousands of facially valid removal cases being indefinitely closed would impact the total population of illegal immigrants present in the United States, or how that increase would impact States, localities, and other parties who rely on the Federal Government to faithfully enforce our immigration laws.
In that vein, AFL contended that Texas has been “irreparably harmed by” the rule “on an ongoing basis” because it “causes there to be an increased number of removable illegal aliens present in the country”, and in the Lone Star State in particular.
The plaintiff argued that result has imposed crushing fiscal costs on the state, requiring (for example) Texas to spend more than $1 billion for medical treatment for illegal aliens in 2025 alone, not to mention millions in other law enforcement, educational, and social welfare expenses.
Judge O’Connor’s Order
The same day AFL filed that complaint, both it and DOJ also filed a “Joint Motion for the Entry of a Consent Judgment”, with the government in essence conceding Texas’s arguments and agreeing to ask the court to enjoin the government from enforcing it.
Judge O’Connor thereafter issued his order and final judgment in the case, declaring therein that “no statute authorizes immigration judges to indefinitely administratively close or suspend adjudication of a case before them” and enjoining the department and its “successors” from “promulgating regulations that permit immigration judges the authority to administratively close removal proceedings without reaching the merits of a case absent an express statutory basis to do so”.
“Sue and Settle”
As Stephen Dinan explained in the Washington Times, this case is the latest example of what’s referred to as “sue and settle”, that is using the courts to issue a dispositive order that achieves a goal both parties share “without going through the usual regulatory process”.
Conservatives have traditionally objected to such legal hijinks, but I assume that given the number of times the last administration employed the tactic, they now conclude that turnabout is fair play.
With due respect, it would be much better for the political health of the Republic if those charged with the enforcement of the immigration laws simply applied them the way that Congress wrote them, all the better to allow U.S. citizens (who are sovereigns here, after all) to judge the INA’s worth and efficacy.
That said, I’ve worked in this area for more than three decades and am jaded at that prospect ever coming to pass.
Justice Delayed
The dictum “justice delayed is justice denied” is attributed to Lord Gladstone, but variations appear as far back as the Babylonian Talmud. The average time an immigration court case is administratively closed is now more than 18 years, which is a lot of delayed justice to make up for. Expect additional challenges, but for now this lingering vestige of Biden’s “quiet amnesty” is itself closed.