On May 17, 2018, in a move that will affect the deportation cases of hundreds of thousands of immigrants, Attorney General Jeff Sessions essentially ordered a full stop to the practice of administrative closure.  This new pronouncement comes after Sessions referred the case of Matter of Castro-Tum to himself last January.  The main issue in the case addressed whether immigration judges have the authority to employ a tool that has been historically recognized as a legitimate practice of managing an immigration court's docket. 

As the American Immigration Council and ACLU explain in a recent practice advisory on the subject, "[w]hen a case is administratively closed, the proceedings are halted, the case is removed from the active docket, and the respondent has no future hearing dates scheduled. Removal proceedings remain suspended unless one party (either the noncitizen or DHS) successfully moves to recalendar it. Administrative closure does not terminate or dismiss the case and it 'does not provide [a noncitizen] with any immigration status';  the individual remains 'in' removal proceedings. Either party may seek administrative closure at any point during the pendency of a case, until a final removal order is entered."

As Reuter's recently reported, "[u]nder President Barack Obama there had been an effort to administratively close certain cases as a way of allowing judges to focus on higher-priority matters and reduce the immigration court backlog. More than 200,000 cases were closed during the last six years of his presidency. The closures were routinely used for people without criminal backgrounds who had lived for many years in the United States, often with U.S. citizen children or spouses. In many cases, the immigrants became eligible for work permits. The administration of President Donald Trump has taken a sharply different tack on immigration, declaring that all those in the country illegally, whether or not they pose a threat to public safety, are subject to deportation."

The sharp policy reversal under the Trump administration has been deeply troubling, and contributes to the increasing erosion of trust between the federal government and immigrant communities.  As a press release from Catholic Legal Immigration Network, Inc. (CLINIC) accurately stated, for many years, the Department of Homeland Security (DHS) "told immigrants who chose to pursue their applications for immigration relief instead of accepting administrative closure that they would face strong opposition from DHS during the trial. The immigrants who accepted administrative closure instead of pursuing their cases relied on assurances from the government that closing their cases would allow them to continue to live safely in the United States and without having to fear potential separation from family members."

However, the most worrisome aspect of Matter of Castro-Tum is not the fact that deportation cases will no longer be administratively closed in the future.  As one article accurately explained, "Sessions' ruling doesn't just prevent judges from closing cases in the future. He also opened the door to reopening the cases of the 350,000 immigrants whose cases had already been closed — many of whom had been assured by the Obama administration they wouldn't be deported.  Sessions's ruling acknowledges that adding all 350,000 cases at once would make the backlog impossible to manage. But his wording seems to imply that it's not a matter of if a given case will be reopened, but when: 'I expect the recalendaring process will proceed in a measured but deliberate fashion that will ensure that cases ripe for resolution are swiftly returned to active dockets,' the ruling says."

As is the case with many of Sessions' "orders," his directive to begin recalendaring administratively closed cases is flawed and vulnerable to legal challenges in several respects.  To begin with, Mr. Sessions, as the Attorney General, heads the Department of Justice.  Although he controls the immigration courts, which fall under the Department of Justice, he does not control the immigration prosecutors, who work for Immigration and Customs Enforcement (ICE).  ICE is a component of the Department of Homeland Security, which is headed by the Secretary of Homeland Security.  Kirstjen Nielsen currently holds that position.  While Sessions and Nielsen were both appointed by Donald Trump, and generally work together on the same immigration agenda, there are budgetary and logistical restraints that may not make recalendaring as much of a priority for DHS as it apparently is for Mr. Sessions.  The bottom line is that Mr. Sessions' reach only extends so far, and while he can order immigration judges, for now, to stop using administrative closure in current and future cases, immigration judges lack the legal authority to sua sponte recalendar administratively closed cases on their own motions.  

A more fundamental problem with Sessions' decision in Castro-Tum is the failure of the Attorney General to properly recognize the legitimate independence that immigration judges must exercise to perform their duties in a constitutionally acceptable manner.  The Code of Federal Regulations explicitly authorize immigration judges to "exercise their independent judgment and discretion and . . . take any action . . . appropriate and necessary for the disposition" of their cases.  Although immigration courts are administrative law courts under the executive branch of government, they nevertheless were created to exercise adjudicative authority, and their processes and modes of decision closely resemble those used by "Article III" courts.

The American Bar Association (ABA)  submitted an amicus brief during the Castro-Tum litigation, advancing these arguments.  In its brief, the ABA correctly noted that the Supreme Court has recognized that “the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); see also Clinton v. Jones, 520 6 U.S. 681, 706 (1997) (observing that the “discretion to stay proceedings [is] an incident to [the] power to control [a court's] own docket”). The same is true for the BIA and immigration courts; absent the express withdrawal of such authority by the Attorney General or by Congress, they are entrusted to “take any action … appropriate and necessary for the disposition of” their cases, 8 C.F.R. §§ 1003.1(d)(1)(ii), 1003.10(b),—including the entry of a stay of proceedings. See Landis, 299 U.S. at 254. 

The attorneys at the Law Offices of Matthew H . Green will continue to defend our clients whose cases have had their cases administratively closed.  Any legally illegitimate attempts by ICE to recalendar those cases will be met with aggressive advocacy, challenging the constitutional authority of the Department of Homeland Security, and the Attorney General, to circumvent the legitimate power of immigration judges to close--and keep closed--the deportation cases of immigrants who, in the final analysis, are not properly considered deportation priorities.