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  • Writer's pictureJarbath Peña Law Group PA

Guess what? Judges now have the power to administratively close cases again!

On May 17, 2018, the Attorney General under President Trump issued a decision in the Matter of Castro-Tum. This decision removed a key tool that judges in an overburdened immigration court system had been using to alleviate their backlogged dockets. This tool is called “Administrative Closure.” This is also referred to as “Prosecutorial Discretion”. It served the immigration system in the U.S. well for decades as it allowed judges to prioritize cases, relieve their overwhelmed dockets, and help low-risk immigrants facing deportation by giving them additional time to pursue any available pathways towards obtaining legal status.

The good news is that Attorney General Merrick Garland vacated that decision on July 15, 2021 — and now, administrative closure is back.

What Is Administrative Closure/Prosecutorial Discretion?

Immigration judges and the Board of Immigration Appeals (BIA) have long used administrative closure as an important tool in circumstances where temporarily pausing removal proceedings was deemed beneficial for everyone involved. Administrative closure effectively removes an immigration case from a court docket and establishes no future hearing dates, thereby putting it on “pause” for the foreseeable future. Administrative closure does not terminate or dismiss the case entirely. It simply puts the case on hold until the U.S. Department of Homeland Security (DHS) or the noncitizen moves to put the case back on the immigration calendar.

Administrative closure has been used by immigration judges and the BIA up until 2018 to pause deportation proceedings for a number of reasons. Because noncitizens are not able to pursue legal status during deportation proceedings, administrative closure served an important function. By pausing the deportation process, this tool gave noncitizens time to pursue legal status through the U.S. Citizenship and Immigration Service (USCIS). For instance, if the noncitizen was facing deportation due to an unlawful criminal conviction, administrative closure allowed time to pursue appeals or other post-conviction relief. Individuals with mental illness were able to have their rights protected while seeking mental health treatment. And if the DHS agreed that a noncitizen was not a high priority for removal, administrative closure was used to de-prioritize the removal proceedings and give that person more time to seek legal status.

The Denial of Administrative Closure

In the Matter of Castro-Tum, then-Attorney General Jeff Sessions removed the BIA and immigration judges’ authority to delay deportation through the use of administrative closure. This opinion was immediately challenged and subsequently rejected by three federal courts of appeals. The U.S. Court of Appeals for the Sixth Circuit was the lone court to agree with Sessions’ opinion in Castro-Tum. However, even the Sixth Circuit allowed the use of administrative closure for noncitizens who were pursuing a certain waiver with USCIS to apply for a green card.

The Trump administration enacted a rule in December of 2020 aimed at entirely eliminating administrative closure. However, two federal courts determined that the Trump administration’s rule violated the Administrative Procedure Act. This rule is currently being reconsidered by the Department of Justice.

The Re-Establishment of Administrative Closure

As previously stated, administrative closure is back. On July 15, 2021, Attorney General Merrick Garland issued his decision in the Matter of Cruz-Valdez, which overruled Castro-Tum in its entirety. This essentially reversed the opinion of Attorney General Jeff Sessions and restored the ability of the BIA and immigration judges to administratively close deportation proceedings nationwide.

In Cruz-Valdez, Attorney General Garland ordered:

“While rulemaking proceeds and except when a court of appeals has held otherwise, immigration judges and the Board should apply the standard for administrative closure set out in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017).”

This decision essentially puts the key tool of administrative closure back into the toolbox used by judges. It gives them back the ability to control their overflowing dockets by properly prioritizing cases, with the added benefit of helping low-priority noncitizens gain legal status. Additionally, the Department of Justice can now pursue future rulemaking through the process known as “notice-and-comment.” This type of rulemaking allows the public to participate in determining any new rules regarding the use of administrative closure.

What This Means

According to Attorney General Merrick Garland, the opinion in Castro-Tum departed from the longstanding legal practice of administrative closure. By issuing his decision in the Matter of Cruz-Valdez, Garland puts an end to Castro-Tum and restores the ability of the BIA and immigration judges nationwide to use administrative closure at their discretion. The only possible exception might be cases within the Sixth Circuit.

We believe that Garland’s decision is a step in the right direction. Immigration judges and the BIA need to have the legal authority to handle and prioritize immigration cases as they see fit. By restoring their discretion and ability to administratively close cases, these judges have gotten back an essential tool that provides more flexibility and fairness when determining the resolution in deportation cases.

Let Us Help

At The Jarbath Peña Law Group, we are excited that the ability to administratively close cases has returned! We agree that the BIA and immigration judges need every tool available to properly and fairly work with immigration applicants who want to become American citizens.

We look forward to helping you with your immigration case, no matter what your needs are. And if you have a good argument for administrative closure, we want to help. We can assess your case and develop the best strategy to keep you in the country legally. Let us put our know-how and passion to protect immigrants’ rights to work for you. We are your South Florida immigration attorneys. So contact us today! You can set up your free initial consultation today by calling 305-615-1005 or through our online contact form. We look forward to serving you!

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