Attorney General Merrick Garland overruled Matter of Castro-Tum in Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021). In so doing, he returned the administrative closure rules to what they were prior to Matter of Castro-Tum. We discuss the current administrative closure rules in our article about Matter of W-Y-U- [see article] and we discuss the overruling of Matter of Castro-Tum and its successor decision in a new article [see article]. Although Matter of Castro-Tum has been overruled, we are keeping our articles about the decision online for reference purposes.

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

On May 17, 2018, U.S. Attorney General Jeff Sessions issued a far-reaching immigration precedent decision in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) [PDF version].

In the decision, Attorney General Sessions concluded that immigration judges do not have the general authority to grant administrative closure. He overturned the Board’s precedent decisions in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), to the extent that they were inconsistent with his conclusion in Matter of Castro-Tum.

Furthermore, Attorney General Sessions declined to delegate any new authority to immigration judges to administratively close proceedings. Instead, he held that immigration judges may only grant administrative closure “where a previous regulation or previous judicially approved settlement expressly authorizes such an action.” Under the new rules, immigration judges will be required to proceed “expeditiously” to resolve cases after the Department of Homeland Security (DHS) initiates proceedings. Where administrative closure is not available, but a “brief pause” is appropriate, immigration judges will continue to have the authority to grant continuances in accordance with 8 C.F.R. 1003.29.

The Attorney General’s conclusions left open the question of the disposition of the cases that were administratively closed without requisite authority and that have not since been reopened. This question was not insignificant due to the large number of cases — likely numbering well over 100,000 — that fall under these criteria. However, in order to avoid overwhelming the immigration courts, the Attorney General held that cases that have already been closed prior to the entry of his decision in the instant case should only be returned to the active docket on the motion of one of the parties.

The underlying issue in Matter of Castro-Tum concerned a respondent who had failed to appear on multiple occasions for his immigration proceedings. The Attorney General affirmed the decision of the Board of Immigration Appeals (BIA) to reopen proceedings after they were administratively closed by the immigration judge over the objections of the DHS. Furthermore, he took the position that the Immigration and Nationality Act (INA) requires immigration judges “to proceed expeditiously to determine whether the requisite evidence supports the removal charge.”

Attorney General Sessions’ decision in Matter of Castro-Tum is one of the most consequential immigration precedent decisions in recent memory and has potentially highly unfavorable consequences for many respondents in immigration proceedings.

In this article, we will review the first half of the Attorney General’s decision. In so doing, we will cover the factual and procedural history of the case, the questions presented, and the background and history of administrative closure in immigration proceedings. Our second article on the issue will examine why the Attorney General found that there exists no general administrative closure authority for immigration judges and the BIA [see article]. Our third and final article will examine the Attorney General’s decision to not delegate general administrative closure authority, his decision on the disposition of cases that were administratively closed without authority, and his decision in the instant case [see article]. Please refer to our index article on Matter of Castro-Tum, which will be updated if necessary, to see all of our articles on the issue and on related issues in one place [see index].

Factual and Procedural History: 27 I&N Dec. at 278-281

In most of our articles summarizing decisions of the Attorney General, BIA, and Administrative Appeals Office (AAO), we work through the decisions in generally the same order that they are presented. For myriad examples, please see our indexes of articles on immigration precedent decisions [see index] and AAO adopted decisions [see index]. However, in the case of this unusually long and complex decision, we will order our analysis differently than how the Attorney General presented it in order to better elucidate the content for our readers.

The respondent in the instant case was a citizen of Guatemala. He entered the United States around June 26, 2014. At the time, he was 17 years of age and unaccompanied. He was apprehended by the U.S. Customs and Border Protection on the same day. Upon his apprehension, the respondent provided CBP with the address of his brother-in-law, with whom he had planned to live, and represented that his brother-in-law would serve as his sponsor for immigration purposes.

The DHS designated the respondent as an unaccompanied alien child (UAC) and, in accordance with the law, placed him in the custody of the U.S. Health and Human Services’ (HHS’s) Office of Refugee Resettlement (ORR). For a discussion of the relevant statutes and agency guidance, please see 27 I&N Dec. at 279 n.4.

On June 28, 2014, the DHS initiated removal proceedings against the respondent by serving him personally with a Notice to Appear. The Attorney General explained that “[t]he notice reflected the mailing address that he had provided to the [CBP] at the time of his apprehension and informed him of his responsibility to update his mailing address if it changed.” The notice did not include a specific date for hearings but rather directed the respondent to appear before an immigration judge at a specific address on “a date to be set at a time to be set.”

On August 20, 2014, HHS ORR released the respondent to the custody of his brother-in-law as his sponsor. HHS ORR was required to confirm the respondent’s future address in the process, in accordance with its agency guidance. Sponsors are required to “agree to ensure the child’s attendance at future immigration proceedings…” Furthermore, sponsors receive a “Verification of Release Form” that lists the address where the sponsor and child will reside. In the instant case, the respondent identified his future address with his sponsor as the same address which he had provided CBP at the time of his apprehension. HHR ORR’s release form in the case confirmed that the respondent and sponsor were notified of the address notification requirements.

On November 26, 2014, the Immigration Judge mailed a Notice of Hearing to the respondent at the specified address, but the respondent then failed to appear. The Immigration Judge scheduled four more hearings, on each occasion mailing a Notice of Hearing to the same address. The respondent failed to appear at each of these hearings. None of the Notices of Hearing were returned as undeliverable by the United States Postal Service.

Despite the respondent’s repeated failures to appear, the Immigration Judge declined on each occasion to proceed with removal proceedings in absentia (without the respondent’s presence). In the first two hearings, the Immigration Judge granted continuances based on the respondent’s failure to appear. In the third hearing, the Immigration Judge granted a continuance on the ground that the DHS was not available for the hearing.

On January 14, 2016, in the fourth hearing, the Immigration Judge considered the respondent’s case along with the cases of other similarly situated respondents. In this hearing, the Immigration Judge expressed concerns about “the adequacy of hearing notices,” noting that in some of the other cases being considered the notices had been returned to sender. Regarding the cases where the notices had been returned as undeliverable, the DHS requested more time to confirm the addresses. The Immigration Judge granted continuances in all of the cases.

However, in the respondent’s fifth hearing on April 18, 2016, which again involved ten other cases involving respondents who had also repeatedly failed to appear, the Immigration Judge ordered administrative closure in all cases. The Immigration Judge took the position that the HHS-ORR addresses were unreliable and refused to proceed in absentia in the absence of an adequate showing by the Government how the addresses had been secured, furnished, and verified. The Immigration Judge found the evidence of how the DHS had obtained the respondents’ address to be inadequate. The DHS objected to administrative closure in the case of the respondent.

On November 27, 2017, on appeal by the DHS, the Board vacated the Immigration Judge’s order of administrative closure and remanded with directions to calendar a new hearing and proceed with removal proceedings in absentia if the respondent again failed to appear. Citing to section 240(b)(5)(A) of the INA, the Board held that the Immigration Judge was required to order removal in absentia if it established the respondent’s removability and the adequacy of the notice. The Board found fault with several aspects of the Immigration Judge’s decision, including the failure to address the specific facts of the respondent’s case and the failure to presume that the officials in the case had “properly discharged their official duties.”

On January 4, 2018, Attorney General Jeff Sessions certified the case for review in Matter of Castro-Tum, 27 I&N Dec. 187(A.G. 2018) [PDF version], and he stayed the Board’s decision pending such review. We discussed the first Matter of Castro-Tum decision in detail on site in a full article [see article]. The instant case is the result of Attorney General Sessions’ review. Please continue reading for a discussion of the issues considered by the Attorney General.

Issues Raised by the Attorney General: 27 I&N Dec. at 281

In Attorney General Sessions’ decision to certify Matter of Castro-Tum for review, he requested briefing on the following four issues:

1. Whether immigration judges or the Board have the authority to order administrative closure;
2. Whether he should delegate or withdraw such authority;
3. Whether administrative closure is or should be different from other document management devices; and
4. If immigration judges or the Board lack the authority to order administrative closure, what actions should be taken regarding cases that are already administratively closed.

Interestingly, these issues swept far more broadly than the issues presented by the particular facts underlying the instant case. Instead of only requesting briefing on whether administrative closure was proper in the case of this particular respondent, the Attorney General requested briefing on whether immigration judges and the Board had authority to grant administrative closure as a general matter. Furthermore, he requested briefing on the contingent issue of how cases that were already administratively closed should be handled in the event that he concluded that immigration judges and the Board lacked the authority — and should not be granted the authority — to grant administrative closure. Before examining his analysis and conclusions, we must first track back in the decision for Attorney General Sessions’ discussion of the background of administrative closure.

Position of the Parties and Amici: 27 I&N Dec. at 282

The Attorney General received briefs from the DHS and from 14 amici in response to his invitation in the first Matter of Castro-Tum decision. The DHS and one of the amicus argued that there is no statute or regulation that provides general administrative closure authority. The Attorney General stated that “[m]ost other amici contend that immigration judges and the Board implicitly possess this authority, relying upon regulations establishing the general powers of immigration judges and the Board, regulations expressly delegating administrative closure authority in some circumstances, and adjudicators’ inherent authority.”

History of Administrative Closure: 27 I&N Dec. at 274-78

Attorney General Sessions began by noting that “no statute delegates to immigration judges or the Board the authority to order administrative closure…” Nevertheless, he explained that the practice appears to have been used “since at least the early 1980s.” Subsequently, regulations have been promulgated which authorize administrative closure in limited and specific circumstances.

History of Use of General Administrative Closure Authority

We will begin with the history of general grants or assertions of ability to grant administrative closure.

On March 7, 1984, the Chief Immigration Judge issued “Operating Policy and Procedure 84-2: Cases in Which Respondents/Applicants Fail to Appear for Hearing” [PDF version]. In OPPM 84-2, the Chief Immigration Judge instructed immigration judges to consider using administrative closure as “one means of addressing the ‘recurring problem’ of respondents’ failure to appear at hearings.” The Attorney General noted that the Chief Immigration Judge “did not identify any basis for this authority.”

Subsequent to OPPM 84-2, the Board discussed administrative closure in several published decisions. In Matter of Amico, 19 I&N Dec. 652, 654 n.1 (BIA 1988) [PDF version], the Board described administrative closure as an “administrative convenience.” The Attorney General explained that the Board’s position from Matter of Amico until 2012 was that administrative closure could be granted only in cases where both parties to the proceeding supported and did not oppose it. For example, he cited to the Board’s decisions in Matter of Lopez-Barrios, 20 I&N Dec. 203-204 (BIA 1990) [PDF version], and Matter of Gutierrez-Lopez, 21 I&N Dec. 479, 480 (BIA 1996) [PDF version].

However, on January 31, 2012, the Board issued its published decision in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) [PDF version], wherein it held for the first time that immigration judges had the authority to grant administrative closure over the objection of one party. The Board in Matter of Avetisyan grounded its decision in the regulations found in 8 C.F.R. 1003.10(b) and 1240.1(a)(1)(iv), (c), and specifically in the provision that immigration judges have the power to “regulate the course of the hearing” and to take actions that are “appropriate and necessary for the disposition of such cases.” In Matter of Avetisyan, the Board set forth a six-factor test as guidance when weighing whether granting administrative closure may be appropriate over the objection of one or both parties. We discussed this test in our article of the Board’s decision in Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) [see section]. In Matter of W-Y-U- [PDF version] [see article], the Board clarified Matter of Avetisyan in stating that the primary consideration for an immigration judge in considering a request for administrative closure over the objection of one of the parties is “whether the party opposing administrative closure has provided a persuasive reason for the cause to proceed and be resolved on the merits.” However, the Board retained the six-factor test from Matter of Avetisyan. The Board also held that when a party moves for an administratively closed case to be reopened, that party must show a “persuasive reason” for recalendaring.

Since 2011, there have been several guidance documents encouraging the use of administrative closure in two general contexts.

The Office of the Chief Immigration Judge issued two OPPM encouraging the use of administrative closure as a docket management tool. In 2013, OPPM 13-01 described administrative closure as a tool for “preserving limited adjudicative resources” [PDF version]. The since-rescinded OPPM 15-01 encouraged immigration judges to use administrative closure, among other tools, “to ensure the fair and timely resolution of cases before them.”

Beginning in 2011 and continuing until 2017, the DHS used administrative closure “as a way to decline to prosecute low priority cases without formally terminating them.” Attorney General Sessions noted several examples of guidance documents issued to this effect. One notable example was the U.S. Immigration and Customs Enforcement document titled “Re: Guidance Regarding Cases Pending Before EOIR Impacted by Secretary Johnson’s Memorandum entitled Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” [PDF version]. This document directed DHS to “generally seek administrative closure or dismissal of cases [that DHS] determines are not priorities.” Please note that “priorities” here refers to the former civil enforcement priorities crafted in November 2014 [see article], which were formally rescinded on February 20, 2017 [see article].

History of Specific Grants of Administrative Closure Authority by the Attorney General and Settlement Agreements

Next, we will examine the limited and specific circumstances in which administrative closure is actually authorized by DOJ regulations promulgated by the Attorney General.

Attorney General Sessions explained that the Department of Justice (DOJ) regulations did not mention administrative closure until 1998. We briefly list the examples provided by the Attorney General of regulations and statutes addressing administrative closure below:

8 C.F.R. 1245.13(d)(3)(i) — Promulgated in 1998, required administrative closure or continuances in cases involving certain Cuban or Nicaraguan nationals in order to allow the respondent to file for adjustment of status.
8 C.F.R. 1240.62(b)(1)(i), (2)(iii), and 1240.70(f)-(h) — Promulgated in 1999, these regulations provided for the administrative closure or continuing of removal proceedings involving certain Guatemalan and Salvadoran nationals protected under the “ABC Settlement Agreement” [see article]. This was for the purpose of allowing class members to “effectuate [their] rights under the agreement.” A subsequent settlement agreement dealing with the disposition of the cases of ABC class members required immigration judges and the Board to affirmatively close cases in some instances. See Barahona-Gomez v. Ashcroft, 243 F.Supp.2d 1029 (N.D. Cal. 2002) [PDF version]. However, this was not codified in the regulations.
8 C.F.R. 1245.15(p)(4)(i) — Promulgated in 1999, this regulation required administrative closure in specified cases involving certain Haitian nationals to allow them to apply for adjustment of status.
8 C.F.R. 1214.3 — Promulgated in 2001, this regulation required the immigration judge or Board, upon request, to administratively close the proceeding of an alien who appeared to be eligible for V nonimmigrant status.
8 C.F.R. 1214.2 — Promulgated in 2002, this regulation allowed for an individual who may be eligible for T nonimmigrant status [see article] to request administrative closure with the concurrence of the DHS in order to pursue such status. The regulation gave the immigration judge and Board the discretion to grant administrative closure for this purpose.
8 C.F.R. 1245.21(c) — Promulgated in 2003, this regulation authorized certain nationals of Vietnam, Cambodia, and Laos to move for administrative closure while their applications for adjustment of status are pending. However, the regulation prevented the immigration judge or Board from “defer[ring] or dismiss[ing] the proceeding” without the consent of the DHS.

In his decision, Attorney General Sessions did not disturb the cases in which administrative closure is specifically authorized by regulations or by settlement agreement. However, as we will see, he found the specific authorization of administrative closure in these limited contexts to be relevant to his determination that no general grant of administrative closure authority exists.

Increasing Use of Administrative Closure and Effect: 27 I&N Dec. at 272-74

Prior to discussing the background of administrative closure, the Attorney General discussed its increasing use over the years.

In Matter of W-Y-U-, 27 I&N Dec. at 18, the Board recognized administrative closure as a docket management tool.

The Attorney General explained that “[a]lthough [administrative closure is] described as a temporary suspension, [it] is effectively permanent in most instances.” Matter of Avetisyan, 25 I&N Dec. at 692 recognized that in cases where neither party moves to recalendar an administratively closed case before the immigration court or reinstate an appeal before the Board, the case remains suspended indefinitely.

Since 1980, less than one third of administratively closed cases have been reclaendared. The Attorney General explained that once “the case comes off the active docket, the immigration judge no longer tracks it, and [the Executive Office for Immigration Review (EOIR)] does not count the case as active in assessing backlogs in immigration proceedings.” The Attorney General recognized additional hurdles to recalendaring. First, he noted that DHS may often not be able to determine when the reason for administrative closure in a specific case has been resolved. Second, he noted that in Matter of W-Y-U-, 27 I&N Dec. at 18 & n.4, the Board has placed the burden on the movant when seeking recalendaring. Third, he noted that the alien respondent seldom has incentive to seek recalendaring.

The use of administrative closure has increased dramatically in recent years. From fiscal year 1980 to fiscal year 2011, a total of 283,366 cases were administratively closed. However, during the following six years from fiscal year 2012 to fiscal year 2017, 215,285 cases were administratively closed. The Attorney General attributed the sudden dramatic increase, in part, to changes in Board precedent. As we discussed, prior to 2012, administrative closure was only granted in cases where both parties to the proceedings agreed. However, in Matter of Avetisyan, and subsequently in Matter of W-Y-U-, the Board concluded that administrative closure could be granted over the objection of one party and set forth the circumstances for adjudicating such disputes.

Conclusion

In the portions of Matter of Castro-Tum covered in this article, the Attorney General discussed the facts of the instant proceedings and the background and history of administrative closure in immigration proceedings. In the second part of our series, we will examine why the Attorney General determined that neither the statutes nor Attorney General regulations convey or imply general administrative closure authority, and why such authority would in fact conflict with important provisions of the INA and the regulations. Please proceed to part two of our series to continue reading about the case [see article].