Attorney General Usurps Ability of Immigration Judges to Terminate Proceedings

Continuing his assault on due process and the over-burdened immigration court system, Attorney General Jeff Sessions issued two new Board of Immigration Appeals decisions today that further curtail the power of immigration judges to terminate court proceedings.

In S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018), the Attorney General dictated that immigration judges (who are under his purview as part of the Department of Justice) have no inherent authority to terminate or dismiss removal proceedings once they are commenced. This comes on the heels of two prior decisions that also curbed judicial independence and basically stripped immigration judges of all authority when it comes to managing their own dockets.

In August 2018, the Attorney General issued a decision in Matter of L-A-B-R-, which restricted court continuances and demanded that immigration judges speed up cases. As such, it has become harder to seek a continuance for an immigration court proceedings unless good cause is shown, such as eligibility for collateral relief. Earlier this year, Sessions also issued a decision in Matter of Castro Tum, which we covered in detail here. That decision curtailed immigration judges from administratively closing removal proceedings. In Castro-Tum, the Attorney General stated that immigration judges and the Board of Immigration Appeals may only administratively close a case where a previous regulation or a previous judicially approved settlement expressly authorized such an action. The effect of this was two-fold: 1) People in removal proceedings could no longer request to close removal proceedings to obtain relief from removal or a provisional waiver before the USCIS even if they qualified for it; and 2) Immigration judges were compelled to issue more removal orders rather than administratively close or continue proceedings. Matthew Archambeault, who represented Mr. Castro Tum, blogged more about the repercussions of that decision here.

Some immigration judges reacted to Castro Tum by terminating removal proceedings altogether, which meant the Department of Homeland Security (DHS) would need to re-file a new Notice to Appear in Immigration Court in order to pursue the deportation of a non-citizen. Ultimately, termination is better than administrative closure because a termination means case completion and the person is no longer in removal proceedings.

As opposed to termination, administrative closure is a procedural mechanism to temporarily pause removal proceedings by removing the case from the active docket or scheduling calendar of the immigration judge or the BIA. A person with an administratively closed case is still in removal proceedings, but the case is inactive and not on the calendar. The DHS can always file to re-calendar the administratively closed case, as many fear it would do in thousands of cases that were administratively closed a few years ago.

The new decision from the Attorney General today doubles down on Castro Tum, and effectively curbs the power of Immigration Judges to terminate proceedings. Under S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018), Immigration judges can only dismiss or terminate proceedings in the following scenarios:

  1. When ICE counsel moves to dismiss or terminate removal proceedings; or
  2. An immigration judge can terminate proceedings to permit an applicant to naturalize when s/he has established prima facie eligibility for naturalization and the matter involves exceptionally appealing or humanitarian factors; and/or
  3. ICE counsel fails to sustain the charges of removability against a respondent.

This effectively means that in the vast majority of cases, people in removal proceedings will no longer be able to close, terminate or dismiss proceedings absent an act of discretion from opposing ICE counsel or prima facie eligibility for United States citizenship. In the short term, Immigration judges will find it harder to manage their dockets, and be inundated with cases to resolve. In the long-term, more people with eligibility for relief from removal will be ordered deported.

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