Early on June 3, two New York City Police Department (NYPD) officers were shot, reportedly by a moped-riding Venezuelan migrant who entered the United States illegally at Eagle Pass, Texas, in July 2023. As bad as those facts are, the story gets even worse: He was apparently at large in New York City because an immigration judge dismissed his case, possibly at the direction of ICE’s de facto general counsel.
The Victims. NYPD cops are likely reluctant to be described as “victims”, but in this instance there is no other suitable sobriquet.
Each officer in this case is young, both 26 years old. The first, Richard Yarusso, is a three-year veteran of the force; he was shot in the upper body, but his bulletproof vest managed to stop the shot from entering his torso.
The second has been identified as Christopher Abreu, who has five years of NYPD service under his belt. He was not quite so lucky as his partner, having been shot in the right leg. Yarusso quickly applied a tourniquet to the wound, and both were sent to a hospital where Abreu underwent emergency surgery. Both were released later that day.
The Incident. Yarusso and Abreu were on patrol at 1:40 AM that morning when they spotted an individual identified as 19-year-old Bernardo Raul Castro Mato riding an unregistered moped driving the wrong way down a one-way street in Queens.
The officers attempted to pull Mato over, but he then allegedly “ditched his moped” and led them on a foot chase that lasted for several blocks.
Some reports indicate the suspect fired several shots at his pursuers during that pursuit, but according to the New York Post, it was only after the cops tackled the suspect that he produced an “illegal Hi-Point .380 pistol” from a fanny pack. At that point, the Post reports, Yarusso attempted to secure the weapon, which the subject discharged toward his chest.
“Mata then allegedly shot Abreu as Abreu returned fire and hit the suspect in the right ankle.”
The Suspect. As with all charged criminal suspects, Mata is presumed innocent until proven guilty. That said, a large amount of information, even at this early date, has been disclosed about his presence in the United States.
He reportedly entered the United States illegally near Eagle Pass, Texas, in July 2023, and was released from custody. He offered no U.S. address to DHS but was scheduled to appear in removal proceedings in Chicago — suggesting the Windy City was initially his destination. But then, according to a separate Post report, his case was closed by a Chicago immigration judge on May 6.
“Administrative Closure”. “Closed” is a direct quote, from a separate June 3 New York Post article. Here’s how it reads in text:
Bernardo Castro Mata, 19 — who shot one officer in the chest and another in the leg after they attempted to stop his moped in Queens — had a hearing in Chicago on May 6 where an immigration judge closed his case, according to ICE sources.
The reporter who wrote that, Jennie Taer, is one of the best on the immigration beat, and I have no doubt that this is exactly what those ICE sources told her.
“Closed” in the immigration-court removal context can mean any number of judicial acts, the first and most obvious being “administrative closure”.
As the Board of Immigration Appeals (BIA) has described it, administrative closure is "a procedural tool created for the convenience of the Immigration Courts and the Board". The BIA continues:
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.
Trump’s Attorney General (AG), Jeff Sessions, ended the practice in May 2018, concluding that the shelving of a pending case was not authorized by the Immigration and Nationality Act (INA), only for it to be revived by current AG Merrick Garland in July 2021.
Having served as an immigration judge for eight years, I don’t see much use in the practice, and that’s even before considering that at the point that Garland’s DOJ stopped publishing administrative closure statistics in early FY 2022, “the average length of time a case has been administratively closed [was] 6,199 days (approximately 17 years)”.
It won’t be the last stat that DOJ appears to be hiding, as I’ll explain below, but in any event, there’s no justification to shelve a perfectly legitimate case for 17 years. What action could those courts have been waiting for — the next eclipse or Halley’s Comet?
Note that Mata is currently identified as being 19 years old, which may explain closure in his case. Had he claimed that he was younger than 18 — or if he really was younger than 18 when agents caught him — DHS may have been forced to process him as an “unaccompanied alien child”, or UAC.
In such instances, CBP would have released him to the Office of Refugee Resettlement (ORR) at the Department of Health and Human Services, for placement in an ORR-contracted shelter pending identification of an adult “sponsor” in the United States — which is what a deeply flawed 2008 law requires.
That would explain why he was originally sent to Chicago, given that ORR can send UACs anywhere it has space.
That same “deeply flawed” 2008 law also gave initial jurisdiction over UAC asylum claims to USCIS officers instead of immigration judges, which is the rule in most other cases involving illegal entrants. That’s true even if the UAC is placed directly into removal proceedings, which normally divests USCIS of asylum jurisdiction.
Thus, Mata may have been sent to an ORR shelter in Chicago, appeared before an immigration judge there, and asked the court to administratively close his case to allow him to apply for asylum before USCIS. And that’s exactly what the immigration judge would have been forced to do.
By the way, even though DOJ no longer discloses how long cases have been administratively closed, it still publishes statistics on how many asylum cases are closed each year. In just the first three months of FY 2024, immigration judges administratively closed nearly 5,000 such cases, on top of nearly 20,000 in FY 2023. The FY 2019 total? 133.
If justice delayed is justice denied, you — the American taxpayer — are getting jobbed, big time. I’d tell you to hire a lawyer, but at the moment you are being represented by AG Garland.
In Absentia Order. There are a lot of suppositions in that last analysis, particularly that Mata was (or claimed to be) a UAC when he was apprehended.
It’s equally possible that Mata failed to appear in immigration court in Chicago, which makes sense because he was apparently living in New York City at the time.
If that’s what happened, the immigration judge should have ordered him removed in absentia, as section 240(b)(5) of the Immigration and Nationality Act (INA) requires in the case of such no-shows.
Anecdotally, however, I have been told that ICE attorneys have been directed to continue or close removal cases involving alien respondents apprehended at the Southwest border who fail to appear at their first removal hearings (known as the “initial Master Calendar”).
I have not independently confirmed that fact, nor do I know who would have ordered ICE attorneys (and immigration judges) to ignore such a clear congressional mandate — but I have my guesses and if you keep reading, you’ll likely have a few of your own.
If Mata was one of those lucky aliens, it would explain a lot.
By the way, and despite all that, in just the first three months of FY 2024, immigration judges issued nearly 43,000 in absentia removal orders, and are on track to issue more than 170,000 this fiscal year. If that happens, it would be an all-time record.
Frankly, though, there’s no reason to think illegal border-crossers would suddenly start respecting our immigration laws now that they’re here.
Termination and Dismissal. The last possibility is that Mata’s case was either terminated or dismissed, which under current ICE practices is more or less the same thing.
Traditionally, removal cases were only terminated in very limited instances, where the alien respondent either wasn’t actually removable (commonly because the alien was convicted of a crime that didn’t satisfy any of the grounds of removability) or because the respondent turned out to be a U.S. citizen (which does happen).
Dismissals, on the other hand, were usually only issued at ICE request because the Notice to Appear (“NTA”, the charging document in removal proceedings) was “improvidently issued”, and/or the respondent was a U.S. citizen, wasn’t removable, or was dead.
The Doyle Memo. Dismissals and terminations of pending removal cases became much more common once Kerry Doyle — an erstwhile private attorney who opined that ICE was “out of control” during a January 2020 hearing before the Massachusetts legislature — became the agency’s principal legal advisor (“PLA”, the de facto ICE general counsel) in September 2021.
On April 3, 2022, Doyle issued “Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion” (the Doyle memo).
The Doyle memo is essentially a directive to ICE attorneys to tank perfectly legitimate removal cases that don’t fit within “priorities” set forth in a different set of guidelines, these issued by DHS Secretary Alejandro Mayorkas in September 2021 (the Mayorkas memo).
As an aside, the Mayorkas memo so effectively hobbled ICE enforcement efforts (particularly with respect to criminal aliens) that the states of Texas and Louisiana sued DHS in Texas v. U.S. to block its further implementation, arguing that it “conflicts with detention mandates under federal law”.
Texas eventually made its way to the Supreme Court (where the justices held in June 2023 there was nothing they could do about it), but not before the Mayorkas memo was vacated by a district court judge (in June 2022), an action that both the Fifth Circuit (in July 2022) and the Supreme Court (on a first go-round that same month) refused to stay.
Returning to the Doyle memo, it directed ICE’s lawyers to review their pending cases and determine whether they are “priorities” for enforcement action under the Mayorkas memo, assuming they have not been “classified for prioritization” already, and included a tracking system to ensure her dictates were being followed.
Doyle’s prioritization implementation scheme doesn’t end once the initial determination is made. Should an ICE attorney learn of “additional information that is material to the” alien respondent’s priority (or nonpriority) determination, that must be considered, as well.
This includes “affirmative submissions by the” alien, which ICE lawyers are compelled to consider.
If you want to understand how that process works, go to the “Prosecutorial Discretion and the ICE Office of the Principal Legal Advisor” page on ICE’s website. It explains:
Before exercising [prosecutorial discretion, “PD”] in a case, OPLA attorneys must first evaluate a case to assess its priority designation under the enforcement priorities. PD in the form of non-filing of an NTA, dismissal, or administrative closure will be reserved for nonpriority cases only. OPLA attorneys will generally litigate to completion all cases that are designated a priority, although forms of PD other than non-filing of an NTA, dismissal, or administrative closure may still be considered on a case-by-case basis.
If a case is designated a nonpriority, then OPLA attorneys may exercise PD in that case. OPLA’s preferred form of PD for a nonpriority case is non-filing of the NTA, or, if removal proceedings have already been initiated, dismissal of the case. OPLA attorneys may also consider other forms of PD, such as stipulations to factual or legal issues, for all cases. [Emphasis added.]
Note that the term “prosecutorial discretion” does not appear in that paragraph online. Rather, the term is used so often on the “prosecutorial discretion” webpage it’s abbreviated “PD”, as if it were some sort of embarrassing medical condition.
Traditionally, however, “prosecutorial discretion” is a term used to describe authority a law enforcement officer has not to enforce the law in a given instance or to file a lesser charge. The classic example is the cop who gives you a warning rather than a ticket when you are clocked doing 70 in a 55 zone.
Such programmatic tailoring of “PD” is about what you would expect from a lawyer who thinks her client agents are “out of control”.
With all of this in mind, it should not be a surprise to learn that in just the first three months of FY 2024, immigration judges dismissed 54,000-plus pending removal cases in immigration court and terminated nearly 15,000 others (more than 69,000 in total), putting judges on track to cut loose more than 276,000 alien respondents, the vast majority of whom are facially removable, this fiscal year.
That’s on top of more than 207,000 other dismissals and terminations in FY 2023. I’d give you the FY 2022 numbers, too, but unfortunately the DOJ link to those stats takes you back instead to the FY 2023 numbers. Not that I am suggesting anything’s amiss, but if I were AG Garland, I wouldn’t want these facts getting out.
That said, I now agree with PLA Doyle that ICE is “out of control” — though likely not in the same way she meant it four years ago. Meanwhile, when listening to President Biden complain that the U.S. “immigration and asylum system ... is simply broken”, remember who broke it, and how.
Was Bernardo Raul Castro Mato, an illegal entrant from Venezuela charged with shooting two NYPD cops, one of the thousands of lucky migrants who took advantage of ICE Principal Legal Advisor Kerry Doyle’s “PD” largesse when his case was closed in May? No way to tell, but Congress may want to find out.