Jeff Sessions Ends Administrative Closure Leaving 355,000 In Limbo

In Re Matter of Castro-Tum, an Immigration Judge closed proceedings against a Guatemalan citizen after he did not appear for removal proceedings because the judge was unconvinced that ICE had properly served him with notice of the hearing. Rather than deport him inabsentia, the Immigration Judge closed to case administratively. The Department of Homeland Security (DHS) appealed the case to the Board of Immigration Appeals (BIA), which is the appellate body for immigration court, which remanded it back to the Immigration Judge for a different decision. Rather than wait for the IJ/BIA act on the case, Sessions decided to intervene earlier this year in the process and referred the case to himself for a decision.

Today, Sessions issued a decision on the case that ended the practice of administrative closure:

Immigration judges and the Board have come to rely upon administrative closure without thoroughly explaining their authority to do so. Unlike the power to grant continuances, which the regulations expressly confer, immigration judges and the Board lack a general authority to grant administrative closure. No Attorney General has delegated such broad authority, and legal or policy arguments do not justify it. I therefore hold that immigration judges and the Board lack this authority except where a previous regulation or settlement agreement has expressly conferred it.

Prior to this decision, an individual in removal proceedings or the DHS attorney could request that the immigration judge or BIA administratively close the case. Sometimes, this was done as an exercise of prosecutorial discretion and docket management for the judges. Other times, it was done to ensure that people with viable claims to relief such as a U-visa, SIJS or a family-based petition did not remain threatened with removal while their claims were pending with the U.S. Citizenship and Immigration Services (USCIS).

Sessions stopped just short of requiring Immigration Judges to reopen some 355,835 administratively closed cases, knowing full well that it would overwhelm the already-backlogged immigration courts. However, his decision does mean that the practice of administrative closure is dead from now on, unless this decision is appealed and overturned by a higher court. It also erodes the authority of immigration judges to use their discretion with respect to managing their dockets.

This decision effectively overturns Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) and Matter of W-Y-U, 27 I&N Dec. 17 (BIA 2017). In the coming weeks and months, we should be on alert for more sweeping changes to immigration laws in this manner.