Last week, Attorney General Merrick Garland issued a legal opinion that once again allows immigration judges to indefinitely bury deportation cases through a process known as “administrative closure.” Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021)
In his legal opinion, Garland described administrative closure as “a docket management tool” that has been used since the early 1980s “to temporarily pause removal proceedings.” “It does not terminate or dismiss the case, but rather ‘remove[s] a case from an Immigration Judge’s active calendar or from the Board’s docket.’” (Id.)(citations omitted)
While this description sounds innocuous, in reality, administrative closure has become a tool to circumvent the law and avoid issuing deportation orders. This was especially so under the Obama Administration.
When a deportation case is before the immigration court, the government (represented by the Department of Homeland Security (DHS)) essentially prosecutes a deportation case against the alien charged with illegal entry (or other immigration offense that makes him/her deportable).
Under the Obama Administration, however, DHS attorneys would simply ask the immigration judge to administratively close cases it did not consider a “high priority.” Or, immigration judges themselves would grant the alien’s request for closure. The result was akin to deferred action: while an illegal alien would not obtain any legal status, the alien could return to his or her life in the United States indefinitely until one of the parties asked for the case to be returned to the judge’s active docket.
The number of cases administratively closed nearly doubled during the Obama Administration. And, as a result, the number of cases on the immigration courts’ inactive docket jumped from 171,835 in FY 2008 to 324,766 in FY 2016. (EOIR Adjudication Statistics, Administratively Closed Cases: FY 2008 – FY 2021) As these cases were never officially resolved, this practice contributed significantly to backlog in the immigration courts.
Source: EOIR Adjudication Statistics, Administratively Closed Cases: FY 2008 – FY 2021.
The practice of administrative closure largely ended in 2017 with the Board of Immigration Appeals’ ruling in Matter of Castro Tum. In that case, an unaccompanied alien minor entered the U.S. illegally in 2014 and was immediately detained, served with a Notice to Appear, and released to a relative after the relative provided the address where they would reside—the same address the minor provided when apprehended at the border. The alien never appeared in court, even though five attempts were made to notify him of his court date.
While failure to appear typically results in a deportation order in absentia, the immigration judge continued this case four times over the course of 18 months and ultimately ordered the case administratively closed over DHS’ objections. The judge ruled that DHS had not shown it had a sufficiently reliable address to provide adequate notice. DHS demonstrated that the government had obtained the relevant address from the respondent in multiple forms, and provided additional proof that the mailing address did not contain errors and was not “returned to sender.” Nonetheless, the judge administratively closed the case. The government appealed and the Board of Immigration Appeals (BIA) vacated the administrative closure on the grounds it was not authorized by law.
In 2018, Attorney General Sessions affirmed the BIA’s decision. In his legal opinion, the Attorney General agreed that the general use of administrative closure was simply not authorized by law. Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). He specifically pointed to the history of administrative closure and explained how it was created out of thin air.
‘In 1984, the Chief Immigration Judge instructed immigration judges to consider administrative closure as one means of addressing the ‘recurring problem’ of respondents’ failure to appear at hearings. The Chief Immigration Judge did not identify any basis for this authority. Nonetheless, immigration judges and the Board soon employed administrative closure in all types of removal proceedings. By 1988, the Board described the practice as an ‘administrative convenience.’ Between 1988 and 2012, Board precedent held that an immigration judge could grant administrative closure only where both parties supported the request. These decisions again assumed without explanation that immigration judges and the Board possessed this general authority.’’
Sessions also pointed out that administrative closure is frequently permanent.
“Since 1980, immigration judges have re-calendared less than a third of administratively closed cases. Because the case comes off the active docket, the immigration judge no longer tracks it, and EOIR does not count the case as active in assessing backlogs in immigration proceedings…. Even where DHS moves to re-calendar, the [Board of Immigration Appeals] has imposed the burden of persuasion on the movant. And the alien respondent in most cases has few incentives to seek to re-calendar because ‘as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States’” (citations omitted).
He further argued that, even though the practice was never grounded in law, historically the Board of Immigration Appeals only permitted it if both parties agreed. (See, e.g., Matter of Lopez-Barrios, 20 I&N Dec. 203 (BIA 1990); Matter of Gutierrez-Lopez, 21 I&N Dec. 479 (BIA 1996)) This changed in 2012 when the Board of Immigration Appeals overruled these cases and held for the first time that an immigration judge could administratively close a case over the objection of one party. (Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012)) This meant that an alien facing deportation could unilaterally request administrative closure and a judge could grant it over the objections of the government. The case would be officially taken off the judge’s calendar, placed in the “inactive docket,” never to be heard of again unless one of the parties moved to place it back on the calendar.
Soon thereafter, the Chief Immigration Judge began encouraging rank and file judges to use administrative closure as a tool to manage their dockets and way to conserve judicial resources. (OPPM 13-01, Mar. 7, 2013); See also Brian O’Leary, Chief Immigration Judge, EOIR, Memorandum for All Immigration Judges, Mar. 24, 2015)(directing administrative closure for UACs who have applied for special immigrant juvenile visas).
Remarkably, DHS leadership also encouraged its attorneys – who serve as the prosecutors in deportation cases – to themselves move for administrative closure as a method of setting aside “low priority cases,” or implementing “prosecutorial discretion”. See Memorandum for All Chief Counsel, Immigration and Customs Enforcement (Nov. 17, 2011). There was little nuance or ambiguity. ICE outright told its attorneys who prosecute deportation cases that they “should seek administrative closure or dismissal of cases it determines are not priorities.” Memorandum for Office of the Principal Legal Advisor Attorneys, Immigration and Customs Enforcement (Apr. 6, 2015)
Not surprisingly, the use of administrative closure exploded. Between FY 2012 and FY 2017, immigration judges had administratively closed nearly as many cases as they had during the previous thirty years (215,285 vs. 283,366).
Administrative closure became widespread, even though, as Attorney General Sessions pointed out in his legal opinion, there were only a few instances where administrative closure was expressly authorized. Those authorizations related to specific group of aliens in specific circumstances or court settlements. For example, he pointed out that 8 CFR 1214.2 authorizes applicants for T visas to seek administrative closure—if the alien “appears eligible” and the government concurs—while the application is pending. Similarly, 8 CFR § 1214.3 authorizes an immigration judge to administratively close the case of an alien in deportation proceedings if the alien is pursuing a V visa and “appears eligible.”
Sessions therefore ruled that immigration judges, as a general practice, do not have authority to administratively close cases. Specifically, he found that the current administrative authority judges have to “take any action consistent with their authorities under the [INA] and regulations that is appropriate and necessary for the disposition of such cases,” does not confer the authority on judges to indefinitely suspend a case through administrative closure because it does not lead to a final order or an actual disposition. (See 8 CFR § 1003.10(b); 8 CFR § 1003.1(d)(1)(ii)(emphasis added) He also held that the authority immigration judges have to take action that “may be appropriate” in removal proceedings, and to “regulate the course of the hearing,” similarly did not authorize judges to stop the proceedings altogether through administrative closure, especially in light of the fact that regulations also require immigration judges to resolve cases in a timely manner. (See 8 C.F.R. § 1240.1(a)(1); 8 C.F.R. § 1240.1(c); 8 C.F.R. § 1003.10(b))
And while it seems self-evident, Sessions then advised the judges that they may only administratively close a case where a regulation or a judicially approved settlement expressly authorizes such an action. To remedy the situation, he directed that, in cases that were administratively closed without the requisite authority, the immigration judge or the Board must re-calendar the case on the motion of either party.
In December 2020, the DOJ issued a final rule to formalize Sessions’ ruling in Matter of Castro-Tum. The new rule that provided that the existing authority judges have to “take any action consistent with their authorities under the [INA] and regulations that is appropriate and necessary for the disposition of such cases,” does not authorize administrative closure unless done pursuant to specific regulations or court settlement expressly authorizing such closure. (85 FR 81588, Dec. 16, 2020) Immigrant advocacy groups sued the government, and three months later a federal judge in California issued a nationwide injunction on the rule, barring its implementation.
Last week, the Biden Administration reversed all of this though a legal opinion issued by Attorney General Merrick Garland, Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021). In that opinion, Attorney General Garland formally vacated Attorney General Sessions’ opinion in Castro-Tum, and reinstated the Obama-era opinions that allowed immigration judges to bury deportation cases through administrative closure. The Attorney General offered no legal reasoning for his decision, except to state that the Department of Justice is now reviewing and re-writing the formal regulation issued by Attorney General Sessions—presumably to grant immigration judges wide latitude to formally close all cases before them.
The widespread use of administrative closure has several deeply troubling implications. First, as most cases are never placed back on the court calendar, it allows illegal aliens to stay in the U.S. in defiance of federal law and encourages more illegal immigration. Moreover, when administrative closure is used to further political goals instead of the law, it makes immigration judges and government attorneys complicit in their illegal activity.
But in the bigger sense, the widespread use of administrative closure creates a “shadow” immigration system that bypasses all federal laws. Under federal law, aliens who are illegally in the U.S. who do not establish that they qualify for some status or relief (such as asylum) must be deported. Aliens with a deportation order may appeal that decision with the Board of Immigration Appeals and, in some cases, in federal court. An alien may make this appeal through these statutorily approved channels even if the alien is no longer in the United States. Administrative closure, however, was never voted into law by Americans, nor by their representatives through Congress. Yet, the Biden Administration now seeks to systematically use administrative closure to avoid issuing the very deportation orders Americans have voted into law through Congressional action. Without a deportation order, no illegal alien can ever be deported. This appears the Biden Administration’s goal.