- Introduction: Matter of Castro-Tum, 27 I&N Dec. 187 (A.G. 2018)
- What Is Administrative Closure?
- Procedure: 27 I&N Dec. 187, 187 (A.G. 2018)
On January 4, 2018, United States Attorney General Jeff Sessions directed the Board of Immigration Appeals (BIA) to refer one of its unpublished decisions to him for review. This marks the first time that Sessions has referred a BIA decision to himself for review. The Attorney General's decision, Matter of Castro-Tum, 27 I&N Dec. 187 (A.G. 2018) [PDF version], requests briefing by the parties and by amici (other interested persons who submit briefs) on several issues involving the authority — or lack thereof — of Immigration Judges and of the BIA to administratively close immigration proceedings. The breadth of the questions signals that the Attorney General may be considering a sweeping new precedent decision on the issue that would have a dramatic effect on immigration proceedings going forward.
In this article, we will examine the questions that Attorney General Sessions posed in Matter of Castro-Tum and examine what this decision may signal going forward.
Please see our index of articles on administrative precedent decisions to learn about crucial decisions from the past several decades in different areas of immigration law [see index].
Before discussing the decision, it is important to explain what exactly is administrative closure. Citing to Matter of Avetisyan, 25 I&N Dec. 688, 692-94 (BIA 2012), the Board in Matter of W-Y-U-, 27 I&N Dec. 17 18 (BIA 2017), described administrative closure as follows:
We will discuss both of these cases in somewhat more detail as we continue in this article.
Under 8 C.F.R. 1003.1(h)(1)(i), the Attorney General may direct the Board to refer a case to him for review. After reviewing Matter of Castro-Tum to himself for review, Attorney General Sessions invited the parties and friends of the court to submit briefing on four issues. We will examine the four issues below.
Attorney General Sessions posed the following question for amici:
“Do Immigration Judges and the Board have the authority, under any statute, regulation, or delegation of authority from the Attorney General, to order administrative closure in a case?”
Interestingly, Attorney General Sessions followed up by asking whether, if the Immigration Judges and the Board do have the authority to administratively close proceedings, the Board's published decisions in the following cases articulate the appropriate standard?
- Matter of W-Y-U, 27 I&N Dec. 17 (BIA 2017) [PDF version]
- Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) [PDF version]
In Matter of Avetisyan, the Board held that an Immigration Judge and the Board have the authority to administratively close proceedings even if a party opposes the administrative closure, provided that such closure is otherwise appropriate. When is administrative closure appropriate? The Board listed several factors in its decision:
In Matter of W-Y-U-, the Board clarified its decision in Matter of Avetisyan by stating that “[t]he primary consideration for an Immigration Judge in evaluating whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” Specifically, the Board precluded Immigration Judges, when making such a determination, from considering whether an alien falls within the Department of Homeland Security's (DHS's) enforcement priorities.
We discuss Matter of W-Y-U- in a detailed article that also addresses Matter of Avetisyan [see article]. Even if Attorney General Sessions determines that the BIA and Immigration Judges have the authority to consider administrative closure, it is possible that he may see fit to reassess the Board's holdings in Matter of Avetisyan and Matter of W-Y-U-.
Attorney General Sessions then posed two hypotheticals for briefs to address.
The first question is as follows:
“If I determine that Immigration Judges and the Board currently lack the authority to order administrative closure, should I delegate such authority?”
Here, the Attorney General invited amici to take a position on whether, if he determines that Immigration Judges and the Board currently lack authority to order administrative closure, he should delegate such authority. This is a pertinent time to note that the Immigration Judges and the Board of Immigration Appeals are not judicial courts, but rather administrative courts. As such, in addition to resolving questions of law, the Board and the Attorney General may also, to an extent, set policy, provided that it remains within the statutory and regulatory framework. This was discussed in detail in two opinions of now-Justice Neil Gorsuch, when he was formerly a judge of the United States Court of Appeals for the Tenth Circuit [see article and see blog].
Second, Sessions asked the alternative question:
“[I]f I determine that Immigration Judges and the Board currently lack the authority to order administrative closure, should I withdraw that authority?”
It is notable here that Attorney General Sessions makes clear that he is not only considering whether Immigration Judges and the Board have the authority to order administrative closure, but also whether they should have the authority to order administrative closure.
Sessions quoted from 8 C.F.R. 1003.12 (2017) when noting that the regulations governing removal proceedings were promulgated for “the expeditious, fair, and proper resolution of matters coming before Immigration Judges.” Based on this objective, Attorney General Sessions asked for briefing on whether existing docket management devices, other than administrative closure, would be inadequate to promote this regulatory objective. He listed examples of several docket management devices to consider:
- Continuance for good cause shown (8 C.F.R. 1003.29);
- Dismissal without prejudice (8 C.F.R. 1239.2(c)); and
- Termination without prejudice (8 C.F.R. 1239.2(f)).
Next, Attorney General Sessions asked a question which presupposes that administrative closure remains an available tool for Immigration Judges and for the Board:
“Should there be different legal consequences, such as eligibility to apply for a provisional waiver of certain grounds of inadmissibility under the immigration laws or for benefits under federal or state programs, where a case has been administratively closed rather than continued?”
In the second question, the Attorney General thus indicates that he is considering whether to attach a penalty in cases when an alien is granted administrative closure.
Issue IV — Disposition of Administratively Closed Cases if AG Finds No Authority: 27 I&N Dec. at 187
Attorney General Sessions asked one final question, which assumes a scenario in which he concludes that Immigration Judges and the Board lack the authority to order administrative closure and should not be otherwise given such authority:
“If I determine that Immigration Judges and the Board do not have the authority to order administrative closure, and that such a power is unwarranted or unavailable, what actions should be taken regarding cases that are already administratively closed?”
This will be a crucial question if Sessions determines that Immigration Judges and the Board cannot order administrative closure. According to a report Jake Gibson of Fox News, “[t]here are currently 350,000 immigration cases that are administratively closed” [link].1 Attorney General Sessions would have to decide what the disposition of these cases would be if the result of his deliberation is that no administrative closure remedy can or should be available.
Administrative closure is a commonly-used docket management tool, as evinced by the 350,000 cases that are currently administratively closed. For this reason, Attorney General Sessions' decision has the potential to not only affect future cases, but also the hundreds of thousands of cases that were previously administratively closed. However, it is important to note that there are many possible outcomes to the case. While one can infer that Sessions is strongly considering changes by the fact that he referred the case to himself in the first place, his four questions set forth various possible conclusions that he could reach in making his final decision. For example, if Sessions determines that Immigration Judges and the Board currently lack the authority to order administrative closure, he would then assess (1) whether he has such authority to delegate, and (2) if so, whether he should delegate it. Furthermore, as we noted in Issue IV, he would also have to determine what would happen to the 350,000 cases that are currently administratively closed. According to the Gibson report, the DOJ has stated that Sessions will use the briefs he receives in response to the invitation to reach a final decision on the issue.2
We will update the site with information on the issue as it becomes available. Those whose cases are currently closed should, like any alien in removal proceedings or facing such proceedings, consult with an experienced immigration attorney about his or her specific case.