AG Eliminates Precedent Restricting Administrative Closure

On November 17, 2022, U.S. Attorney General Merrick Garland published an immigration precedent decision in the Matter of Coronado Acevedo, 28 I&N Dec. 648 (A.G. 2022) [PDF version]. The Attorney General overruled a prior Attorney General precedent, Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018) [PDF version], which had been published by former Attorney General Jeff Sessions in 2018. Matter of S-O-G- & F-D-B- limited the circumstances in which an immigration judge could dismiss or terminate removal proceedings through administrative closure. This decision generally disfavored alien respondents by precluding immigration judges from dismissing proceedings to allow them to obtain status or other forms of relief without departing or being removed from the United States. Matter of Coronado Acevedo is generally favorable to aliens in proceedings insofar as it returns the understanding of the immigration judge's authority to dismiss proceedings to what it was before the Attorney General decision in Matter of S-O-G- & F-D-B- and Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) [PDF version], the latter of which was previously vacated by Attorney General Garland in Matter of Cruz-Valdez, 27 I&N Dec. 271 (A.G. 2018) [PDF version].

Below, we will explain what the law was under Matter of S-O-G- & F-D-B- and the effect of that decision being overruled by Matter of Cornado Acevedo.

Prior Law

In 2018, Attorney General Jeff Sessions issued what was then a significant immigration decision in Matter of Castro-Tum. We discussed Matter of Castro-Tum in detail on site in three parts [part 1; part 2; part 3], and although the decision no longer has force, we have left these articles online with notes for reference purposes. The central holding of Matter of Castro-Tum was as follows:

Immigration judges and the Board do not have the general authority to suspend indefinitely immigration proceedings by administrative closure.

In short, the effect of Matter of Castro-Tum was that immigration judges lost the authority to administratively close immigration proceedings in almost all circumstances. The decision required immigration judges to decide whether the charges brought against an alien by the Department of Homeland Security could be sustained. Attorney General Sessions provided that continuances were the proper tool for situations in which there was good cause to delay proceedings. Matter of Castro-Tum explicitly overruled prior Board precedents in Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) [PDF version] and Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) [PDF version], both of which read the regulations as providing immigration judges general administrative closure authority and establishing standards for determining whether administrative closure is appropriate in a given case. (See our article on Matter of W-Y-U-, which covers that decision and Matter of Avetisyan.)

Matter of S-O-G- & F-D-B- was published as a follow-up decision to Matter of Castro-Tum (see our article on Matter of S-O-G- & F-D-B-). We also have a full article discussing this decision and its now-former significance. Its purpose was to clarify points about the effect of the former, more significant decision, for the benefit of immigration judges who were required toi implement it. Matter of S-O-G- & F-D-B- reiterated that “[c]onsistent with Matter of Castro-Tum …, immigration judges have no inherent authority to dismiss removal proceedings.” The former Attorney General provided that immigration judges may only terminate or dismiss proceedings under 8 CFR 1239.2(c) (dismissal upon motion of the Department of Homeland Security under specific regulatory provisions), 1392.2(f) (termination for certain naturalization applicants), or 1240.12(c) (where Department of Homeland Security fails to sustain charges). Both Matter of Castro-Tum and Matter of S-O-G- & F-D-B- rejected the previously accepted position that 8 CFR 1240.1(a)(1)(iv) provides general catch-all authority to immigration judges to dismiss removal charges or otherwise terminate proceedings for reasons not expressly specified in the regulations.

Current Law after Coronado-Acevedo

The Attorney General overruled Matter of Castro-Tum in Matter of Cruz-Valdez in 2021. Although Matter of Cruz-Valdez did not, in and of itself, establish a new administrative closure scheme, it restored the Board's earlier decisions in Matter of Avetisyan and Matter of W-Y-U- to the status of binding precedents and instructed immigration judges to apply the administrative closure rules from those cases. We discussed both Matter of Avetisyan and Matter of W-Y-U- in a detailed article on Matter of W-Y-U-. These decisions instructed immigration judges to consider the following factors in deciding whether to grant administrative closure in a given case:

1. the reason administrative closure is sought;
2. the basis for any opposition to administrative closure;
3. the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings;
4. the anticipated duration of the closure;
5. the responsibility of either party, if any, in contributing to any current or anticipated delay; and
6. the ultimate outcome of removal proceedings … when the case is recalendared before the Immigration Judge or the appeal is reinstated before the Board.

Matter of W-Y-U- provided specific guidance to immigration judges on adjudicating motions for administrative closure where one party (most often the government) objects. In such cases, immigration judges should consider whether the opposing party provided a persuasive reason to proceed to resolving the removal proceedings on the merits.

Because Matter of S-O-G- & F-D-B- closely followed Matter of Castro-Tum, it was placed on shaky ground by the decision to overrule the latter. Moreover, one could argue it was effectively, if not expressly, abrogated by the direction in Matter of Cruz-Valdez to follow Matter of Avetisyan and Matter of W-Y-U with regard to motions to administratively close proceedings. It would be difficult to say the least to try to reconcile Matter of S-O-G- & F-D-B- with Avetisyan and W-Y-U-.

In Matter of Coronado Acevedo, Attorney General Garland made what was arguably implicitly clear in Matter of Cruz Valdez explicit and overruled Matter of S-O-G- & F-D-B-. While Matter of S-O-G- & F-D-B- is not identical to Matter of Castro-Tum, the Attorney General explained that its analysis followed directly from the central premises of the latter.

Conclusion

Matter of Coronado Acevedo is significant even to the extent that the overruling of Matter of Castro-Tum raised serious questions about whether any part of Matter of S-O-G- & F-D-B- remained good law. Immigration judges are bound by the precedents of the Attorney General and the Board of Immigration Appeals, and overruling Castro-Tum without addressing S-O-G- & F-D-B- arguably created some technical ambiguity for adjudicators. Now that S-O-G- & F-D-B- has been overruled in full, there is no question that the administrative precedents regarding administrative closure have been fully restored to their pre-Castro-Tum state.

The decision is largely positive for aliens in removal proceedings. While administrative closure is not on the table in every case, the situations foreclosed by Castro-Tum and S-O-G- & F-D-B- generally involved situations wherein the alien would want administrative closure for one reason or another. However, that administrative closure is available does not mean it will be granted in every case where it is requested. Avetisyan provides specific guidance for factors that immigration judges must consider in deciding whether to exercise discretion to grant administrative closure, and W-Y-U- specifically addresses factors in cases where one party, usually teh Department, may oppose granting administrative closure.

Finally, it is worth noting that the rules of Matter of Castro-Tum and Matter of S-O-G- & F-D-B- remain largely in place, with a few modifications, in cases arising in the jurisdiction of the United States Court of Appeals for the Sixth Circuit, which covers Kentucky, Ohio, and Tennessee. See Hernandez-Serrano v. Barr, 981 F.3d 459 (6th Cir. 2020) [PDF version]; Garcia-DeLeon v. Garland, 999 F.3d 986 (6th Cir. 2021) [PDF version]. The Sixth Circuit agreed in precedent with the former Attorney General decision that immigration judges lack general administrative closure authority. Thus, until and unless it modifies its precedents or the Department promulgates new regulations relating to administrative closure, the Attorney General's new decisions do not have force in cases arising in Kentucky, Ohio, and Tennessee.