The Center for Immigration Studies (CIS) submitted a public comment on November 7, 2023, to oppose the U.S. Department of Justice (DOJ) Executive Office for Immigration Review (EOIR)’s proposal to expand immigration judges’ and the Board of Immigration Appeals (BIA) authority to administratively close,1 terminate, or dismiss2 cases in removal proceedings. The proposal would also repeal numerous regulatory provisions issued under the Trump administration that reduce unnecessary delays in immigration court adjudications generally — including by imposing shorter briefing schedules and limiting remands from the BIA to the immigration courts.
First, CIS requested that DOJ delay issuance of this proposal until it made relevant information available to the public. CIS requests that DOJ make updated data regarding the number of inactive pending cases; the average length of time a case has been administratively closed; the number of terminated or dismissed cases; the number of UACs that have been placed into removal proceedings in recent years (by year); and the grounds for administratively closing, terminating, or dismissing cases available to the public. Without such information, the public lacks the information necessary to properly analyze the impact the regulation will have on the immigration system or understand how these authorities will be used by EOIR adjudicators.
CIS also noted that issuing this rule is inappropriate while DOJ, in coordination with the U.S. Department of Homeland Security (DHS) and the U.S. Department of Health and Human Services (HHS), is in the process of implementing changes to both the credible fear process and protections afforded to unaccompanied alien children (UACs) who are placed into proceedings under EOIR’s jurisdiction. A rulemaking may be set aside as “arbitrary” or “capricious” under the Administrative Procedure Act (APA) if an agency fails to reveal portions of technical bases for a proposal in time to allow for meaningful commentary.
Second, CIS explained that DOJ’s proposal to expand EOIR adjudicators’ authorities to administratively close, terminate, or dismiss cases in removal proceedings are overbroad and bad policy. The Immigration and Nationality Act requires immigration judges to complete a case and to complete it through only one of three options: an order of termination; an order of removal; or an order of relief or protection consistent with the INA. CIS explained how expanding these authorities will reduce credibility in the immigration system, increase the courts’ overall backlogs, and allow aliens without any lawful immigration status to continue to live in the United States indefinitely in “legal limbo” without a final disposition on their case.
Since 2012, EOIR adjudicators have abused administrative closure to remove cases from their dockets without issuing dispositions of those cases permanently. CIS reminded DOJ that it reported that the average length of time a case had been administratively closed was 17 years — dispelling any notion that EOIR was using administrative closure to “temporarily” remove cases from the component’s calendars for the purpose of completing specific tasks, such as to apply for benefits with USCIS.
Third, CIS recommended that EOIR adopt simultaneous briefing schedules for both detained and non-detained cases. Given the historic backlogs EOIR is facing, CIS believes that the costs of extending simultaneous briefing requirements to all cases, rather than to only detained cases, is pointedly outweighed by EOIR’s need to efficiently adjudicate appeals in a timely manner. Expanding simultaneous briefing schedules to all cases will give the BIA another tool to address its historic backlog without undermining due process.
Fourth, CIS recommended that EOIR should impose firmer deadlines for background check requirements. As explained in detail in the comment, implementing additional measures to promote efficiency in the adjudication process is of utmost importance. Allowing EOIR to maintain a “good cause” exception for a failure to comply with a background check-related deadline is sufficient to ensure that individuals who face unusual or unpredictable hardships can proceed with their cases, while also providing strong incentives for aliens in proceedings to comply with these requirements in a timely manner.
Finally, CIS reminded DOJ that it has an obligation to comply with the National Environmental Policy Act (NEPA) before finalizing this rule. To promote environmentally sensitive policies, NEPA requires federal agencies to “provide a detailed statement on proposals for major Federal actions significantly affecting the quality of the human environment.” All major federal actions that increase levels of immigration are actions that do foreseeably affect the quality of the human environment as they increase the national population, according to the statute, case law, and regulation. The proposed regulation has such potential.
According to EOIR data from July 2023, the immigration courts’ overall backlog stands at more than 2.2 million cases. This is a 1,060 percent increase since 2008, at which time EOIR reported a backlog of over 186,000 cases, and more than double 2019’s backlog of over 1,088,000 cases. As of the third quarter of 2023, BIA reported 114,006 appeals pending — the highest number of pending appeals ever reported by the agency.
These extreme backlogs are not only eroding the credibility of our immigration system, but the backlogs themselves encourage additional illegal immigration to the United States by ensuring that even those aliens who meet the Biden administration’s narrow enforcement priorities are, nevertheless, provided the opportunity to live in the United States for numerous years — longer than nearly all nonimmigrant visa categories’ periods of validity. Aliens who are either paroled out of detention or file asylum applications are also eligible to receive employment authorization documents to work in the United States legally.
1 Administrative closure is defined as “an order by an Immigration Judge removing a case from the Immigration Court’s calendar”. An administrative closure does not result in a final order or disposition in an immigration case. Sometimes, administrative closure has been used to allow an alien to pursue an immigration benefit or form of relief they are eligible to apply for or to await an event that is outside of the immigration courts’ jurisdiction to occur.
2 While the terms “termination” and “dismissal” in this context are sometimes used interchangeably, a dismissal in immigration court means that the court has decided to close the case without reaching a final decision on the merits of the proceedings, without prejudice to either the alien or DHS. Termination, on the other hand, is a decision by the immigration judge to end the removal proceedings with a specific outcome, generally in favor of the alien.