On July 15, Attorney General Merrick Garland issued a decision in Matter of Cruz-Valdez. That decision explicitly overruled AG Jeff Sessions’ decision in Matter of Castro-Tum, which had ended the practice of “administrative closure” in removal proceedings. Garland’s decision allows DOJ to hide the massive backlog in the immigration courts (there are more than 1.3 million pending cases) and to bypass the law.
What is administrative closure? The Board of Immigration Appeals (BIA) has described it as “a procedural tool created for the convenience of the Immigration Courts and the Board”. The BIA fails to mention, of course, that they actually created it “for their own convenience and that of the immigration courts” — it appears nowhere in the Immigration and Nationality Act (INA).
Garland describes it as “a docket management tool that is used to temporarily pause removal proceedings. ... It does not terminate or dismiss the case, but rather removes a case from an Immigration Judge’s active calendar or from the” BIA’s docket. (Internal citations and punctuation omitted.)
Administrative closure is not new, and in fact had been around since the early 1980s before Sessions ended it. That said, the number of cases administratively closed almost doubled during the Obama administration: In FY 2008, there were just fewer than 172,000 administratively closed cases, but by FY 2017, that number had climbed to more than 339,000.
I hope that Garland had his tongue firmly in his cheek when he stated that administrative closure “temporarily pauses” immigration court proceedings. As DOJ itself admits: “For inactive pending cases, the average length of time a case has been administratively closed is 6,070 days (approximately 16 years) and the median length of time is 4,429 days (approximately 12 years).”
Any procedure that pauses a case long enough to allow it to get a driver’s license is anything but “temporary”. These are cases that have been shelved so long that the immigration courts logically have invested massive amounts of money in new shelving.
Having been an immigration prosecutor and judge, the court could simply continue a case that is appropriate for administrative closure, which would put the heat on both the alien respondent and USCIS (many cases are administratively closed to allow the alien to apply for a visa or waiver from the agency) so as to move the process along.
Putting a case on inactive docket for more than a year, on the other hand, disadvantages both ICE (which prosecutes cases in immigration court) and the interests of justice.
Evidence and files get lost, lawyers move on, and unless the government realizes that the case is ripe for recalendaring or the respondent wants the case put back on an active docket, he or she can simply remain here forever. As the Supreme Court recognized in INS v. Doherty, “in a deportation proceeding ... as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.”
Administrative closure also has the added detriment of allowing DOJ to hide the true size of the immigration backlog (which, as I have explained, is massive) and the nonfeasance of immigration judges and the BIA. If the immigration courts need more judges, DOJ should ask for them. That ask becomes a lot harder if you actually want to enforce the INA when you are understating your workload by 25 percent.
Of course, that assumes that the Biden administration actually wants to enforce the INA, which it plainly doesn’t, except to grant benefits to aliens. In fact, the current regime is doing everything it can to hobble ICE enforcement, as I have explained in the past.
That includes prosecutions by ICE lawyers in the immigration courts.
In a June post, I described how ICE’s principal legal advisor (the agency’s general counsel) issued interim “guidance” to the agency’s lawyers in May, which essentially told them to spike cases involving many removable aliens (and to accede to grants of immigration benefits to others), all in the name of “prosecutorial discretion”.
Not surprisingly, those two words appear prominently in Garland’s decision, where in explaining the many glories of administrative closure he included that:
It also has served to facilitate the exercise of prosecutorial discretion, allowing government counsel to request that certain low-priority cases be removed from immigration judges’ active calendars or the Board’s docket, thereby allowing adjudicators to focus on higher-priority cases.
It should come as no surprise that the words “low-priority cases” does not appear in the INA, either. Rather, in that act Congress directs the executive branch to prosecute all removable aliens, and remove them quickly when they are ordered removed, as both the regulations reflect and the Supreme Court has held.
The regulations self-referentially explain that: “These rules are promulgated to assist in the expeditious, fair, and proper resolution of matters coming before Immigration Judges.” Notice the use of “expeditious” there? Cases before the immigration courts are supposed to be completed as quickly as they can be, consistent with due process.
In INS v. Abudu, the Supreme Court explained why immigration cases should be completed expeditiously when it recognized a “strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases.”
That “strong public interest” is thwarted when a case is removed from an active immigration court docket and allowed to molder for 16 years, which as the foregoing demonstrates is just one negative side-effect of administrative closure.
Of course, there is also a “strong public interest” in seeing the immigration laws enforced, and there has not been a lot of that going on under the current administration, either.
All of that said, Garland’s decision in Matter of Cruz-Valdez was inevitable exactly because the current administration has no interest in enforcing the immigration laws. It seemingly wants to keep the courts underfunded so that cases drag on for years to the benefit of the million-plus aliens who are in the system, and then fall back on the canard of “limited resources” as a reason for not removing aliens. Immigration is a losing issue for the president and his party, and decisions like this one show why that is true.