Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018): AG Finds that IJs/BIA Lack General Administrative Closure Authority (Part 2)

 

Introduction: Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018)

This is the second part of our three-part series of articles on the important published Attorney General decision in the Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) [PDF version]. This article presupposes that you have seen our first article in the series and are familiar with the case background and issues presented [see article]. In this article, we will discuss the Attorney General's reasoning for concluding that neither the statutes nor regulations provide for general administrative closure authority. We examine how the Attorney General resolved the issue of the outstanding cases that were administratively closed without authority in the final part of this article series [see article]. Please see our issue index for all three of these articles as well as other articles on the Matter of Castro-Tum litigation and articles on related issues [see index].

Rulemaking vs. Adjudication; Scope of Review: 27 I&N Dec. at 282

Citing to SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) [PDF version], the Attorney General explained that he had the authority to resolve the case through “rulemaking or adjudication.” Rulemaking refers to crafting regulations to address an issue. For example, Attorney General Sessions cited to the prior Attorney General published decision in Matter of Compean, Bangaly & J-E-C-, 25 I&N Dec. 1, 2 (A.G. 2009) [PDF version], wherein then-Attorney General Eric Holder reversed a prior Attorney General decision in the same cases and ordered subsequent rulemaking to resolve the issues presented.

Adjudication refers to resolving the issue through deciding a specific case. In the instant case, Attorney General Sessions “concluded that adjudication presents a more efficient, but equally thorough, means of considering the legal basis for the practice of administrative closure.”

Citing to Matter of J-F-F-, 23 I&N Dec. 912, 913 (A.G. 2006) [PDF version], the Attorney General explained that he would “review de novo all aspects of the Board's and the Immigration Judge's decisions in this case.” Citing to section 103(a)(1) of the INA, he explained that “determination[s] and ruling[s] by the Attorney General with respect to all questions of law” regarding the INA and “all other laws relating to the immigration and naturalization of aliens,” “shall be controlling.” For this reason, the Attorney General made clear that his decision would be binding on the Board and overrule any past Board decisions to the extent that they are inconsistent with it.

No Statutory or Regulatory General Authority for Administrative Closure: 27 I&N Dec. at 282-83

In this brief section, we will examine an overview of the issues presented and the Attorney General's conclusion. In subsequent sections, we will examine the points and conclusions in greater detail.

Attorney General Sessions determined that “[i]mmigration judges and the Board have come to rely upon administrative closure without thoroughly explaining their authority to do so.”

The Attorney General explained that the INA vests in the Attorney General the responsibility for supervising immigration proceedings. In accordance with the INA and the implementing Attorney General regulations, immigration proceedings are administered by the immigration judges and the BIA. As such, immigration judges and the BIA exercise authority that is (1) provided by the INA or (2) delegated by the Attorney General. Immigration judges and the BIA do not have a separate, independent source of authority.

The Attorney General noted that several Federal appellate courts have held that neither the INA nor the Attorney General regulations sets forth a basis for administrative closure. For example, the United States Court of Appeals for the Ninth Circuit in Diaz-Covarrubias v. Mukasey, 551 F.3d 1114, 1118 (9th Cir. 2009) [PDF version], held that “there is no statutory basis for administrative closures. Nor is there any regulatory basis for administrative closures.” The Attorney General cited to several other decisions that held similarly at 27 I&N Dec. at 283.

The Attorney General found it relevant that while neither the statutes nor the Attorney General regulations confer general administrative closure authority to immigration judges and the BIA, they do specify authority for other procedural tools in immigration proceedings. Notably, the Attorney General regulations grant immigration judges and the BIA the authority to grant continuances under certain circumstances.

In light of the foregoing, Attorney General Sessions concluded that immigration judges and the BIA lack a general authority to grant administrative closures. Thus, the question remained whether he should delegate any such authority. For reasons that we will examine, the Attorney General ultimately declined to do so, upon finding that “legal or policy arguments do not justify it,” and he limited the authority of immigration judges and the BIA to order administrative closure to the specific cases where it is authorized in the Attorney General regulations or mandated by settlement agreement.

Rejecting Arguments in Favor of Existence of General Administrative Closure Authority: 27 I&N Dec. at 283-87

Under section 240(a)(1) of the INA, immigration judges “shall conduct proceedings for deciding the inadmissibility or deportability of an alien.” However, as we noted in the previous section, immigration judges act under the supervision of the Attorney General. Section 101(b)(4) of the INA states that immigration judges “shall be subject to such supervision [of the Attorney General] and shall perform such duties as the Attorney General shall prescribe.”

The Attorney General regulations provide further clarification. Under 8 C.F.R. 1003.10(b), immigration judges may “exercise the powers and duties delegated to them by the [INA] and by the Attorney General through regulation.” The same regulation provides that immigration judges are governed by the INA, the Attorney General regulations, and by relevant decisions of the BIA. The BIA itself is subject to the authority of the Attorney General. In INS v. Doherty, 502 U.S. 314, 327 (1992) [PDF version], the Supreme Court noted that the authority of the BIA is limited to “the review of those administrative adjudications under the [INA] that the Attorney General by regulation may assign to it.”

In the instant case, both the parties and amici agreed that neither the statutes nor the regulations explicitly delegate general administrative closure authority to immigration judges or the BIA. However, several of the amici ventured arguments in favor of the proposition that certain regulations give immigration judges and the BIA the implicit authority to administratively close cases. Some of these arguments tracked the Board's reasoning in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) [PDF version], and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) [PDF version]. We discuss these decisions in our article on Matter of W-Y-U- [see article] and in one section of our first article on the instant decision [see section].

8 C.F.R. 1003.10(b) and 1003.1(d)(1)(ii)

The primary arguments in favor of implicit administrative closure authority relied upon the Attorney General regulations setting forth the general authority of the immigration judges (8 C.F.R. 1003.10(b)) and BIA (8 C.F.R. 1003.1(d)(1)(ii)). The pertinent regulation authorizes immigration judges to “exercise their independent judgment and discretion and … take any action consistent with their authorities under the [INA] and regulations that is appropriate for the disposition of … cases.” The pertinent regulation similarly authorizes the BIA . However, the Attorney General noted that these regulations “do not stand alone,” but rather go on to specify the scope and details of the authority of immigration judges and the BIA. For example, the regulations authorize immigration judges and the BIA to administer oaths, receive evidence, examine witness, and issue subpoenas. Furthermore, both are directed to “resolve the questions before them in a timely and impartial manner consistent with the [INA] and regulations.” (Emphasis added by the Attorney General.) As we will see, the Attorney General found it significant that these regulations set forth specific powers of immigration judges and the BIA which do not include administrative closure but which do affirmatively direct them to resolve every case before them “in a timely … manner consistent with the [INA} and regulations.” It is important to note that the Board relied upon both of these regulations in Matter of Avetisyan and Matter of W-Y-U-.

Citing to several cases, the Attorney General found that Federal appellate courts have generally concluded that the above regulations empower the immigration courts and the BIA with “latitude” in conducting proceedings. See e.g., Ramirez-Durazo, 794 F.2d 491, 496 (9th Cir. 1986) [PDF version]. Yet, courts have also found that the regulations are not open-ended. In a notable example, the United States Court of Appeals for the Tenth Circuit concluded that 8 C.F.R. 1003.1(d)(1)(ii) does not “expressly or impliedly” grant “plenary power[s]” to the BIA in Sosa-Valenzuela v. Gonzales, 483 F.3d 1140, 1146-47 (10th Cir. 2007) [PDF version].

The Attorney General concluded that “[n]either section 1003.10(b) nor section 1003.1(d)(1)(ii) confers the authority to grant administrative closure.” First, he noted that the language allowing immigration judges and the BIA to take measures “appropriate and necessary for the disposition of such cases” would seem to preclude a measure that effectively suspends cases indefinitely. Furthermore, he found that the “in a timely fashion” requirement conflicts with the notion that immigration judges and the BIA may grant administrative closure. See the next subsection for an additional important point made by the Attorney General.

Attorney General Disagrees With Portion of Published Seventh Circuit Decision: 27 I&N Dec. at 284 & n.6

The Attorney General devoted a footnote in the decision to disagree with a specific conclusion in the published decision of the United States Court of Appeals for the Seventh Circuit in Baez-Sanchez v. Sessions, 872 F.3d 854, 855 (7th Cir. 2017) [PDF version]. In that decision, the Seventh Circuit read 8 C.F.R. 1003.10(b) as “a declaration that [immigration judges] may exercise all of the Attorney General's powers 'in the cases that come before them'” absent some other regulation that explicitly says otherwise. The Attorney General concluded that this holding conflicts with the Attorney General regulations, which limit the authority of the immigration judges to taking only such actions as are “appropriate and necessary” to resolving cases consistent with existing statutes and regulations. He added that the interpretation of the Seventh Circuit “would also render superfluous other specific grants of authority,” citing as examples the regulations which authorize administrative closure in specific and limited circumstances.

This footnote is particularly interesting because the Seventh Circuit in Baez-Sanchez declined to follow the Board's published decision in Matter of Khan, 26 I&N Dec. 797 (BIA 2016) [PDF version]. To learn more about the cases, please see our full articles on Matter of Khan [see article] and Baez-Sanchez [see article].

8 C.F.R. 1240.1(a) and (c)

Attorney General Sessions then moved to the assessment of whether 8 C.F.R. 1240.1(a) implies administrative closure authority. The Board had relied upon this provision in Matter of Arvetisyan as an additional justification for its position. The Attorney General explained that the first three clauses of 8 C.F.R. 1240.1(a) give immigration judges the authority to determine removability, resolve applications under specific INA provisions, and order withholding of removal. The fourth clause, 8 C.F.R. 1240.1(a)(1)(iv), then authorizes immigration judges to “take any other action consistent with applicable law and regulations as may be appropriate.” The Attorney General held that while this clause “may grant authority to issue final orders in analogous matters, “t it “does not concern the authority to make procedural rulings within the proceeding, such as the granting of administrative closure.”

Attorney General Sessions also rejected the notion that 8 C.F.R. 1240.1(c) implicitly grants administrative closure authority. This regulation allows immigration judges to “receive and consider material and relevant evidence, rule upon objections, and otherwise regulate the course of the hearing.” The Attorney General explained that the phrase “otherwise regulate the course of the hearing” only “provides general authority in connection with the presentation of argument and evidence.” For example, the Seventh Circuit in Champion v. Holder, 626 F.3d 952, 957-58 (7th Cir. 2010) [PDF version], found that this regulation allows immigration judges to refuse to allow closing arguments. The United States Court of Appeals for the First Circuit held that it allows immigration judges to exclude testimony from witnesses with no personal knowledge of the facts in its decision in Pulisir v. Mukasey, 524 F.3d 302, 311 (1st Cir. 2008) [PDF version]. Accordingly, the Attorney General concluded that 8 C.F.R. 1240.1(c) “does not entail an authority to grant indefinite suspension.”

8 C.F.R. 1003.14(a)

The Attorney General dedicated footnote 7 of his decision to 8 C.F.R. 1003.14(a), which the Board relied upon in part in Matter of Avetisyan. The regulation provides that jurisdiction vests with the immigration court when the DHS files a Notice to Appear. The Attorney General stated that this “provision is not an independent source of authority for administrative closure; it merely reflects when jurisdiction vests.”

8 C.F.R. 1003.9(b)(1) and 1003.1(a)(2)(i)(A); 1003.9(b)(3) and 1003.1(a)(2)(i)(C)

8 C.F.R. 1003.9(b)(1) and (a)(2)(i)(A) give the Chief Immigration Judge and Chairman, respectively, the power to “[i]ssue operational instructions and policy.” Specifically, the regulations convey the authority “to set priorities or time frames for the resolution of cases, to direct that the adjudication of certain cases be deferred, to regulate the assignment of [immigration judges or Board members] to cases, and otherwise to manage the docket of matters to be decided by” immigration judges and the BIA. The latter regulations are found in 8 C.F.R. 1003.9(b)(3) and 1003.1(a)(2)(i)(C). The Attorney General concluded that these regulations do not grant “express authority” to administratively close cases and that they cannot be read as doing so. Instead, he concluded that “[t]hey permit only more limited actions, like delaying the scheduling of certain cases to prioritize others.” In footnote 8, he added that, as an additional point undermining a reading supporting a broader grant of authority, “section 1003.9(b)(1) did not grant the Chief Immigration Judge the authority to defer adjudications or otherwise manage dockets until 2007, so it cannot justify a practice that immigration judges have employed since the 1980s.”

The Attorney General explained that prior OPPMs by the Chief Immigration Judge discussing administrative closure “have simply assumed-based on Board precedent-that the authority exists.” He added that the Board in Matter of Avetisyan did not discuss the regulations set forth in this subsection, but rather relied on the regulations delegating general powers to immigration judges and the BIA.

DHS Regulations on Administrative Closure: 27 I&N Dec. at 287

Attorney General Sessions noted that the DHS has regulations addressing administrative closure in the context of eligibility for provisional unlawful presence waivers [see article]. Specifically, the regulations address when an individual whose removal proceedings have been administratively closed is eligible for a provisional unlawful presence waiver [see section]. The Attorney General concluded that these regulations had no effect on the scope of the authority of immigration judges and the BIA “[b]ecause only the Attorney General may expand the authority of immigration judges or the Board.” Furthermore, the Attorney General noted that the regulation “does not presuppose general administrative closure authority because it still has force in all cases subject to administrative closure based on regulations that expressly and specifically authorize it for particular types of aliens.”

Court Rulings on Administrative Closure Authority: 27 I&N Dec. at 287

The Attorney General explained that Federal appellate courts, when reviewing Board decisions involving administrative closure, have generally also simply “assumed that immigration judges and the Board have such authority.” For example, in Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 890-91 (9th Cir. 2018) [PDF version], the Ninth Circuit followed Matter of Aveitisyan “and identified section 1003.1(d)(1)(ii) and section 1003.10(b) as sources for [administrative closure authority].” Thus, the Attorney General explained, this decision and other circuit decisions that reached similar conclusions are “best read as merely restating the Board's reasoning in Avetisyan rather than independently parsing the regulations.” To this effect, the Attorney General noted that Gonzalez-Coraveo relied upon the Ninth Circuit's earlier decision in Diaz-Covarrubias v. Mukasey in correctly noting that administrative closure has no basis in the statutes or regulations. The Attorney General listed several other decisions that employed similar analysis, which can be found on page 287 of his decision.

The Attorney General noted that “no federal court has analyzed the regulations in detail, much less held that they unambiguously confer [administrative closure] authority. Accordingly, he concluded that there is no existing Federal circuit court decision that conflicts with or otherwise diminishes his authority to interpret the regulations with regard to the administrative closure question. To this effect, he cited to the Supreme Court decision in Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005) [PDF version], which requires Federal courts to defer to an agency's reasonable interpretation of an ambiguous statutory provision. Furthermore, he reiterated section 103(a)(1) of the INA, which provides that the determinations and rulings of the Attorney General with respect to questions involving the interpretation of INA provisions “shall be controlling.”

Specific Grants of Administrative Closure Authority Weigh Against General Authority: 27 I&N Dec. at 287-88, 289

The Attorney General explained that reading the regulations as implying general administrative closure authority would conflict with regulatory provisions that specifically authorize administrative closure in limited cases.

First, the Attorney General again highlighted those regulations that authorize administrative closure in specific, limited cases [see section]. Here, the Attorney General cited to several Supreme Court decisions in support of the proposition that, where, there are specific and limited grants of administrative closure authority, it cannot otherwise properly be imputed t that there exists a general administrative closure authority. For example, in Botany Worsted Mills v. United States, 278 U.S. 282, 289 (1929) [PDF version], the Court stated that “[w]hen a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.”

The Attorney General found the language of 8 C.F.R. 1214.2(a), which provides that immigration judges may grant administrative closure in cases involving certain human trafficking victims, to be particularly relevant. He reasoned that if there was an implicit general administrative closure authority, the provision that immigration judges may grant administrative closure in these specific cases “would be superfluous.” Attorney General Sessions cited to several judicial decisions supporting this reading of the regulations. For example, a plurality of the Supreme Court in Yates v. United States, 135 S.Ct 1074, 1085 (2015) (plurality opinion) [PDF version], stated that “[w]e resist a reading of [the relevant statutory provision] that would render superfluous an entire provision passed in proximity as part of the same Act.” Here, the Attorney General concluded that there would be no need to grant by regulation the discretionary authority to administratively close certain cases if immigration judges already possessed the general authority to administratively close cases.

The Attorney General acknowledged that the preambles to some of the regulations authorizing administrative closure in limited cases “accept as given that immigration judges and the Board have employed the practice more broadly.” Specifically, he cited to the following Federal Register rules: Adjustment of Status for Certain Aliens from Vietnam, Cambodia, and Laos in the United States, 67 FR 78667, 78669 (Dec. 26, 2002) [PDF version]; and Adjustment of Status for Certain Nationals of Haiti, 65 FR 15835, 15842 (Mar. 24, 2000) [PDF version]. However, the Attorney General concluded that “these statements merely acknowledge then-existing Board precedent, and do not purport to independently confer such authority.”

In footnote 10, the Attorney General explained that he was aware of no other evidence outside of the limited grants of administrative closure authority already discussed that previous Attorney Generals have delegated administrative closure authority. He nevertheless added that, “[t]o the extent that any Attorney General could be viewed as having made such a delegation, I hereby exercise my discretion to revoke it because the practice of administrative closure thwarts the efficient and even-handed resolution of immigration proceedings.”

Existence of Authority to Grant Continuances Weighs Against General Administrative Closure Authority: 27 I&N Dec. at 288-89

Attorney General Sessions briefly examined the regulations specifying the authority to grant continuances for immigration judges (8 C.F.R. 1003.29 and 1240.6). He noted that continuances are “the docket-management device that most resembles administrative closure.” The regulations permit the granting of continuances (reasonable adjournment) by immigration judges (1) at his or her instance, or (2) for good cause show upon application by one of the parties.

The Attorney General explained that continuances “temporarily defer[] a case for a fixed period while it remains on the docket.” He added that if the regulations are to be read as allowing administrative closure generally, which allows for the suspending of cases indefinitely and removing them from the active docket, “those same general authorizations would surely empower immigration judges to suspend cases for finite periods through continuances.” In short, he argued that general administrative closure authority would imply continuance authority, thus rendering the regulations authorizing continuances superfluous. He explained that he was bound to interpret the regulations in a matter that gives each regulation meaning, rather one that renders certain regulations unnecessary. Here, he again appealed to the Yates decision.

General Administrative Closure Authority Would Conflict With INA and Other Regulations: 27 I&N Dec. at 289-91

The Attorney General also concluded that reading the regulations as including implied general administrative closure authority “would conflict with the policies underlying the INA and its implementing regulations.”

First, he noted that the INA gives the DHS “the exclusive authority to decide whether and when to initiate proceedings.” The Board recognized this point in Matter of W-Y-U-, 27 I&N Dec. at 19.

Under 8 C.F.R. 1003.12, immigration judges and the BIA are required to “expeditious[ly]” resolve cases after the DHS initiates proceedings. In Matter of Roussis, 18 I&N Dec. 256, 258 (BIA 1982) [PDF version], the Board held that, in cases where the then-Immigration and Naturalization Service (INS) (now DHS) choose to initiate proceedings against an alien and prosecute the case to its conclusion, “the immigration judge is obligated to order deportation if the evidence supports a finding of deportability on the ground charged.”

The Supreme Court held in INS v. Abudu, 485 U.S. 94, 107 (1988) [PDF version], that the requirements of 8 C.F.R. 1003.10(b) reflect the “strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases.” The Supreme Court recognized in Doherty, 502 U.S. at 323, that delay generally works to the detriment of the Government. However, the Board noted in Matter of W-Y-U-, 27 I&N Dec. at 20, that delay may also work in certain cases to the detriment of aliens who may have avenues for obtaining lawful status is.

Returning to the instant case, the Attorney General explained that it demonstrated “how administrative closure particularly undermines the INA's mandate to swiftly adjudicate immigration cases when the respondent fails to appear.” Under section 240(b)(5)(A) of the INA, governing in absentia proceedings, the alien “shall be ordered removed in absentia if [DHS] establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable.” The Attorney General concluded that section 240(b)(5) “imposes an obligation to proceeding expeditiously to determine whether the requisite evidence supports the removal charge.” In Kaweesa v. Gonzales, 450 F.3d 62, 68 (1st Cir. 2006) [PDF version], the First Circuit recognized that the statute was promulgated “in response to a serious problem of aliens deliberately failing to appear for hearings and thus effectively extending their stay in the country.”

In the instant case, the Attorney General concluded that the immigration judge had been required to adjudicate the removal proceedings in absentia after the DHS established that it had provided sufficient notice to the respondent. Furthermore, the Attorney General held that even if the DHS had provided insufficient notice, the immigration judge should have either granted a continuance or terminated proceedings, and should not have ordered administrative closure. The Attorney General discussed the notice in the context of the specific case at 27 I&N Dec. at 291 & n.12.

No Inherent Judicial Authority for Administrative Closure: 27 I&N Dec. at 291-92

The Attorney General rejected arguments that immigration judges and/or the Board “possess a general power to order administrative closure based on some inherent adjudicatory authority.” While noting that Federal district courts sometimes employ the practice as a docket management tool, the Attorney General concluded that this does not justify the practice for immigration courts and the BIA. Specifically, he noted that federal courts are Article III courts, deriving their authority in part from being components of the judiciary branch set forth in Article III of the United States Constitution. In Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) [PDF version], the Supreme Court held that Article III courts may possess inherent authority because of “the nature of their institution,” and as such possess powers that are “governed not by rule or statute.” Conversely, the immigration courts and BIA are Article I courts established by Congress, and thus “[t]hey act on behalf of the Attorney General in adjudicating immigration cases, [] exercis[ing] only the specific powers that statutes or the Attorney General delegate.”

The Attorney General added that Federal district courts employ administrative closure less frequently than did the immigration courts. Furthermore, administratively closed Federal cases “remain on an inactive docket and can be recalendared upon either party's request or at the court's discretion.” Here, he referred to the decision of the United States Court of Appeals for the Fifth Circuit in CitiFinancial Corp. v. Harrison, 453 F.3d 245, 250-51 (5th Cir. 2006) [PDF version]. By contrast in immigration cases, administratively closed cases are halted indefinitely, not tracked, and only recalendared if the party seeking recalendaring satisfies its burden of demonstrating a good reason to resume proceedings, per Matter of W-Y-U-, 27 I&N Dec. at 17-18 & n.4.

The Attorney General added that the use of administrative closure in immigration proceedings since the 1980s is not in itself sufficient to establish the existence of any such authority. He added that immigration judges and the BIA “cannot arrogate power to themselves by seizing it and relying on the Attorney General's lack of express disapproval.”

Conclusion

In the portion of Matter of Castro-Tum discussed in this article, the Attorney General concluded that there exists no general administrative closure authority for immigration judges and the BIA. With this decision, the Attorney General moved to create a rule for the disposition of outstanding cases that were administratively closed without requisite authority. To learn about his new rule, please see our third and final article in this series of articles about the decision [see article].