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AG Jeff Sessions Exceptional Authority – Matter of Castro-Tum

The news media is abuzz with the latest Immigration news. On Thursday May 17, 2018 Attorney General Jeff Sessions in a case he referred to himself [Matter of Castro-Tum] used his exceptional Authority to greatly limit Immigration judges’ authority to administratively close cases in Immigration court. To read the actual decision please click here https://www.justice.gov/eoir/page/file/1064086/download.

Before this decision, Immigration judges had authority to administratively close cases to allow respondents who had other viable forms of relief to pursue them before the USCIS. What this simply means is that hundreds of thousands of people who thought their court case had been closed may have their cases re-opened and end up being deported; even though they actually had a good chance of staying here legally through proper petitions filed with US Citizenship and Immigration Services.

While the general public and the news media are trying to come to grips with the decision, it comes as no surprise to Immigration Attorneys who practice law in Immigration Courts all around the country. Shortly after the Trump administration took office, Immigration Attorneys have seen a marked difference in policy and procedure from the government representatives in court proceedings.

The case of Castro-Tum involves an immigrant who entered the United States as an unaccompanied minor. His case was administratively closed by an Immigration judge after he failed to appear at his court hearings on multiple occasions.


So what is administrative closure and why is it important in Immigration law?

Administrative closure is the procedural mechanism to temporarily stop removal proceedings by removing the case from the immigration judge’s or Board of Immigration Appeal’s calendar. Administrative closure can be used to defer individual removal cases or the cases of large groups of people. It is used by Judges and the Board of Immigration Appeals when someone who is in removal proceedings [in otherwords, who has a court case where the government is trying to send him/her back to their home country] has another form of relief from removal still pending before United States Citizenship and Immigration Services [USCIS]. It is like pressing the pause button on a removal case in court, to allow the respondent pursue other viable means to allow them stay in the country legally.

In his seven point ruling, Attorney General Sessions gave his reasons for his decision. Some of the key points he made are:

  1. Immigration judges and the Board of Immigration Appeals do not have the general authority to suspend immigration cases in court by administrative closure.
  2. Immigration judges and the Board of Immigration Appeals may only administratively close a case if there was a previous regulation or a court settlement giving them express authority to do so.
  3. The law does not give Immigration Judges and the Board of Immigration Appeals authority to grant administrative closure. He quoted several relevant laws – 8 C.F.R. § 1003.10(b) ; 8 C.F.R. § 1003.1(d)(1)(ii)]; 8 C.F.R. § 1240.1(a)(1) and  8 C.F.R. § 1240.1(c). They don’t have the authority to suspend cases indefinitely, which was what had been happening in the past. Although Immigration Judges and the Board have authority to take measures “appropriate and necessary for the disposition of . . . cases” and also take actions that “may be appropriate” in removal proceedings, this does not ordinarily include the authority to suspend cases indefinitely.  

He also added that the Chief Immigration Judge and the Chairman of the Board can manage dockets under C.F.R. § 1003.9(b)(1) and 8 C.F.R. § 1003.1(a)(2)(i)(A), these laws do not grant express authority to administratively close cases, and cannot reasonably be interpreted to implicitly delegate such authority.

  1. Under the Immigration and Nationality Act, only the Department of Homeland Security has the exclusive authority to decide whether and when to initiate court proceedings and once the cases start the courts must move quickly to resolve the cases.  8 C.F.R. § 1003.12.
  2. For cases that truly warrant a brief pause, the regulations expressly provide for continuances.  8 C.F.R. § 1003.29.
  3. Where a case has been administratively closed without the right authority, the immigration judge or the Board, as appropriate, should reopen the case.

A huge part of the problem is the long waiting lists and backlog of cases being adjudicated by the USCIS. The government agency USCIS is constrained by manpower and resources shortages. Hundreds of thousands of applications are pending all over the country. Due to these constraints, many categories of cases [Asylum, Adjustment of status, U-visas, Naturalization to name a few] are backlogged for years and years. By effectively cutting off most of the courts’ discretion to administratively close its cases, Attorney General Sessions’ decision may likely lead to mass deportations for thousands of immigrants who would otherwise eligible be for another form of relief. This is because if courts cannot administratively close their cases, and USCIS is not able to review their applications for relief, they may be forced to leave the country. In effect, immigrants who are in the process of going through the immigration process legally would be denied this opportunity. While indefinite administrative closure of cases is not ideal, a balanced approach should take into account the realities of an inherently flawed and overburdened immigration system.

It remains to be seen what the coming weeks and months will bring, as the various stakeholders jostle with the practicalities of this decision. As for the immigrants directly impacted by the Attorney General’s latest decision, hold on tight, it is going to be a bumpy ride.

 

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