Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018): AG Finds that IJs/BIA Lack General Administrative Closure Authority (Part 3)


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)

This is the third and final 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]. It presupposes that you are familiar with the case background and procedural history, discussed in part one [see article], and with the Attorney General's conclusion that immigration judges and the Board of Immigration Appeals (BIA) lack general administrative closure authority [see article]. In this article, we will cover the Attorney General's decision to not delegate administrative closure authority and his rules for cases that were administratively closed without authority, in addition to his decision to affirm the BIA's decision in the instant matter. 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].

Attorney General Sessions Declines to Delegate Administrative Closure Authority: 27 I&N Dec. at 292-93

Having concluded that immigration courts and the BIA lack general administrative closure authority, the Attorney General moved to decide whether he would delegate such authority. Here, the Attorney General concluded that “it would [not] be appropriate to delegate such authority.”

First, he took the position that the Attorney General regulations “already expressly authorize other mechanisms that serve the same functions, and those mechanisms avoid many of the drawbacks of administrative closure.” Here, he took the position that cases that should not go forward should either be terminated (either with or without prejudice) or dismissed. Cases should be terminated or dismissed only if they “meet the relevant legal standard.” He explained that termination and dismissal provide for finality, and “cut[] down on the number of cases orphaned within the immigration courts.” He added that termination and dismissal provide for more accountability than administrative closure, in that they “result[] in a final, transparent order from the immigration judge who ends the case.” Conversely, he noted that administrative closure “has produced a backlog all its own…”

For cases where a brief pause is appropriate, the Attorney General explained that the regulations provide for continuances, which have been recognized as being similar to administrative closure. Unlike administrative closure, however, continuances under 8 C.F.R. 1003.29 “are for a fixed but potentially renewable period of time, and are granted upon a showing of 'good cause.'” The Attorney General concluded that “[c]ontinuances ensure that immigration cases do not get lost in the shuffle and will move forward once the circumstances warranting delay disappear.”

In footnote 13 of the decision, the Attorney General listed several other reasons why he determined that continuances are superior to administrative closure. First, he addressed the “good-cause standard,” which he concluded “gives judges sufficient discretion to pause proceedings in individual cases while also preventing undue delays.” Specifically, he noted that immigration judges may monitor a cause that has been continued. Citing to Matter of M-A-M-, 25 I&N Dec. 474, 480 (BIA 2011) [PDF version], the Attorney General also observed that continuances are especially superior in cases where an immigration judge may need to reassess the circumstances of a respondent in a mental competency case.

Disposition of Cases that Were Administratively Closed Without Authority: 27 I&N Dec. at 293-94

Having determined that there is no general administrative closure authority and having declined to delegate any such authority, the Attorney General moved on to address the disposition of cases that have previously been administratively closed in a manner inconsistent with his instant decision. This question is highly important due to the sheer number of cases that meet this criterion. According to the Attorney General, at the end of fiscal year 2017, “some 355,835 administratively closed cases had yet to be recalendared.” We discussed the increased use of administrative closure in recent years in our first article on the instant decision [see section].

He stated that only a small number of these 355,835 cases were administratively closed in accordance with the limited administrative closure authority provided in the regulations and by settlement agreements. He announced that any cases that were administratively closed in accordance with the regulations or with a settlement agreement “should continue to proceed in the manner directed by the relevant regulations or settlement agreements.”

Regarding the majority of the 355,835 outstanding cases that were administratively closed without the requisite authority, the Attorney General expressed that he was “cognizant of the need to return these cases to the active docket so that these matters can proceed expeditiously.” However, due to the large number of cases involved, he concluded that requiring the immediate recalendaring of all cases “would likely overwhelm the immigration courts and undercut the efficient administration of immigration law.” Accordingly, the Attorney General ordered that all such administratively closed cases “may remain closed unless DHS or the respondent requests recalendaring.” In any case where a request is made, the Attorney General ordered the immigration judge or the Board to recalendar the case. Thus, the movant need not meet any burden for establishing cause to recalendar. The Attorney General added that he expected that the recalendaring process “will proceed in a measured but deliberate fashion that will ensure that cases ripe for resolution are swiftly returned to the active dockets.”

The Attorney General stated that his position on recalendaring was no different than previous BIA orders on the subject and that it did not conflict with 8 C.F.R. 1003.1(d)(1)(ii) and 1003.10(b), which provide that it is the duty of immigration judges and the BIA respectively to “exercise their independent judgment and discretion…”

Finally, the Attorney General concluded that his rule is “both administrable and legally sound.” He noted that there already exist regulations that require the recalendaring of certain administratively closed cases on the motion of either party. See e.g., 8 C.F.R. 1245.13(m)(1)(ii) (qualifying Nicaraguan and Cuban nationals), and 1245.15(r)(2)(ii) (qualifying Haitian nationals). He determined that extending these provisions to all administratively closed cases will ensure that all administratively closed cases are treated equally.

Finally, the Attorney General concluded that his decision does not raise any due process or retroactivity concerns because “[a]dministrative closure confers no legal entitlement to indefinite closure and has always been understood as revocable.”

Attorney General's Conclusion: 27 I&N Dec. at 294

In the instant case, the Attorney General affirmed the decision of the BIA to vacate the Immigration Judge's decision and remand to the Immigration Judge to issue a new Notice of Hearing within 14 days of the order. In the event that the respondent again fails to appear, the Attorney General directed the Immigration Judge to proceed in absentia in accordance with section 240(b)(5) of the INA.


Matter of Castro-Tum represents a landmark decision in the context of immigration proceedings. In twenty-four pages, the Attorney General ended a practice that has been employed by immigration judges and the BIA for over three decades, and with dramatically increasing frequency over the past six years. With the decision, the DHS will now be at liberty to resume pursuing removal in cases that were administratively closed without authority. Although the number of precise cases that are affected is not clear, it is likely well over 200,000.

It is uncertain how many cases the DHS will seek to have recalendared under the new rule. Furthermore, due to the limited resources of the immigration courts and the BIA, it is also unclear how expeditiously they will be able to adjudicate cases that the DHS moves to have recalendared.

Those who are or have been placed in removal proceedings should always consult with an experienced immigration attorney. Those whose cases have been administratively closed and not recalendared may seek a consultation for an immigration attorney on how this decision may affect them. This is especially important in cases where the DHS moves to have a case recalendared.

The decision is certainly highly unfavorable for respondents who are facing removal proceedings. However, it is important to understand that each case is unique, and that it is impossible to predict how this decision will affect any specific case without knowledge of the specific facts and circumstances involved.

Please see our index article on the issue for a collection of articles on Matter of Castro-Tum and related subjects [see index]. This index will be updated with new articles if necessary.