In an August 2017 post, I speculated that the backlog of cases before the immigration courts may be much larger than official statistics indicate, because those statistics do not reflect the number of cases that have been administratively closed. At that time, I suggested: "There are no statistics on the number of cases that are currently administratively closed, but the number is likely at least an additional 100,000." Apparently I was off. By a lot.
The American Bar Association's ABA Journal announced on January 5, 2018, that the number of administratively closed cases was actually "350,000 – more than half of which were closed in four years under the Obama Administration and exceeding the total in the previous 22 years." This is in addition to 658,728 cases that the Transactional Records Access Clearinghouse (TRAC) identified as pending before the immigration courts in November 2017. Therefore, the total number of immigration cases to be adjudicated actually totals more than a million.
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." As the BIA explained:
Administrative closure, which is available to an Immigration Judge and the Board, is used to temporarily remove a case from an Immigration Judge's active calendar or from the Board's docket. In general, administrative closure may be appropriate to await an action or event that is relevant to immigration proceedings but is outside the control of the parties or the court and may not occur for a significant or undetermined period of time.
This procedure is purely a matter of administrative convenience, and does not result in a final order in the matter.
Almost 30 years ago, in Matter of Amico, the BIA reversed an immigration judge's closure of a deportation hearing at which the respondent failed to appear. It held that the judge should have ordered the alien removed in absentia where pleadings had been taken, the alien received notice of the hearing, and he offered no explanation for his failure to appear. The BIA concluded:
When a case is administratively closed, the respondent is allowed, by simply failing to appear, to avoid an order regarding his deportability, and the consequences an order of deportation could bring.
In 1990, in Matter of Lopez-Barrios (which also involved an administrative closure order after the respondent failed to appear at a deportation hearing), the BIA held that cases may not be administratively closed if either party opposes the closure. The BIA affirmed this rule six years later in Matter of Gutierrez, which involved an attempt by a member of the class action lawsuit in American Baptist Churches v. Thornburgh "to pursue issues or relief from deportation which were not raised in the administratively closed proceedings."
The BIA returned to this question in its 2012 decision in Matter of Avetisyan. In that case, the respondent had sought administrative closure pending the adjudication of a visa petition that had been filed on her behalf, following 11 continuances of her case. The immigration judge granted that request over the government's objection, and the government appealed.
Overruling Matter of Lopez–Barrios and its progeny, a three-member panel of the BIA held "the Immigration Judges and the Board have the authority, in the exercise of independent judgment and discretion, to administratively close proceedings under appropriate circumstances, even if a party opposes." Its decision, the BIA concluded:
[T]he rule in Gutierrez directly conflicts with the delegated authority of the Immigration Judges and the Board and their responsibility to exercise independent judgment and discretion in adjudicating cases and to take any action necessary and appropriate for the disposition of the case. The circuit courts and the Board have rejected the notion that a party to proceedings may exercise absolute veto power over the authority of an Immigration Judge or the Board to act in proceedings involving motions to reopen or requests for continuances.
...
As with a motion to reopen or a request for continuance, we are persuaded that neither an Immigration Judge nor the Board may abdicate the responsibility to exercise independent judgment and discretion in a case by permitting a party's opposition to act as an absolute bar to administrative closure of that case when circumstances otherwise warrant such action. Accordingly, we hold that the Immigration Judges and the Board have the authority, in the exercise of independent judgment and discretion, to administratively close proceedings under appropriate circumstances, even if a party opposes.
The BIA offered a series of factors, among others, for an adjudicator to consider when weighing administrative closure:
(1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the Immigration Judge or the appeal is reinstated before the Board.
Subsequently, in Matter of W-Y-U-, the BIA returned to the issue of administrative closure. There, the government had requested administrative closure of a case in which a Chinese national had applied for asylum, which the respondent opposed. Later, the respondent filed a motion to recalendar those proceedings to have his asylum claim heard.
The immigration judge in that case had "denied the respondent's motion to recalendar and kept his case administratively closed to reserve the Immigration Court's 'limited adjudication resources to resolve actual cases in dispute.'" While it is not clear why the government had sought to administratively close the matter, the BIA posited that the government's "actions may suggest that the respondent's case is not a priority for enforcement."
In clarifying its decision in Matter of Avetisyan the BIA held "the primary consideration for an Immigration Judge in determining whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits."
Having made these findings, the BIA reinstated the removal proceedings.
On January 4, 2018, Attorney General Jeff Sessions directed the BIA to refer Matter of Castro-Tum to him for review, to give him the opportunity to assess various issues related to administrative closure.
In particular, he directed the parties and interested amici to brief the issue of whether immigration judges and the BIA "have the authority, under any statute, regulation, or delegation of authority from the Attorney General, to order administrative closure in a case," and if not, whether he should delegate that authority to those bodies. Assuming that the immigration judges and the BIA have such authority, he also directed briefing as to whether he should withdraw that authority.
He also asked for briefing on whether Matter of Avetisyan and Matter of W-Y-U- "articulate the appropriate standard for administrative closure."
Further, noting that "[t]he regulations governing removal proceedings were promulgated for 'the expeditious, fair, and proper resolution of matters coming before Immigration Judges,'" he requested briefing on the question of whether:
[T]here [are] any circumstances where a docket management device other than administrative closure — including a continuance for good cause shown, dismissal without prejudice, or termination without prejudice — would be inadequate to promote that objective?
Given these regulatory standards, he also asked whether there should be:
[D]ifferent legal consequences, such as eligibility to apply for a provisional waiver of certain grounds of inadmissibility under the immigration laws or for benefits under federal or state programs, where a case has been administratively closed rather than continued?
Finally he asked for briefing on what should be done with respect to "cases that are already administratively closed", if he were to determine that the immigration court and the BIA lacked administrative closure authority, and that such power is "unwarranted or unavailable".
As I noted in my October post, there is no regulatory authority for administrative closure of immigration cases:
Rather: "It is merely an administrative convenience which allows the removal of cases from the calendar in appropriate situations." Put another way, administrative closure allows the immigration courts to shelve cases that it does not want to, or cannot, deal with, at least at the time of closure.
Notably, administrative closure appears to be at odds with case law. As even the BIA noted, in Matter of W-Y-U-:
There is an important public interest in the finality of immigration proceedings. INS v. Abudu, 485 U.S. 94, 107 (1988) ("There is 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.").
Similarly, in Matter of Ramirez–Sanchez, the BIA held:
The decision to institute deportation proceedings involves the exercise of prosecutorial discretion and is one which neither the immigration judge nor this Board reviews. Once deportation proceedings are commenced, the immigration judge must order deportation if the evidence supports the charge.
It unlikely that of the 350,000 administratively closed cases, none involve aliens who are removable and have no relief. This is particularly true given the fact that, as the American Immigration Council has stated:
Administrative closure was used extensively as a form of prosecutorial discretion during the later years of the Obama Administration; in particular, the Department of Homeland Security (DHS) often joined in motions to administratively close cases that did not fall within its enforcement priorities.
The strongest argument for administrative closure is that it putatively allows the immigration courts to focus on cases that can be resolved quickly without having to deal with cases that are not ripe for resolution. Despite this fact, however, and the extensive use of administrative closure under the Obama administration, the backlog in cases continued to rise during that period.
In a June 2017 report, the Government Accountability Office (GAO) found that the immigration courts' backlog, that is, "cases pending from previous years that remain open at the start of a new fiscal year — more than doubled from fiscal years 2006 through 2015 ... primarily due to declining cases completed per year." Significantly, GAO found:
In particular, the case backlog remained relatively steady from fiscal years 2006 through 2009 and then rose each year starting in fiscal year 2010. The immigration courts had a backlog of about 212,000 cases pending at the start of fiscal year 2006 and the median pending time for those cases was 198 days. By the beginning of fiscal year 2009, the case backlog declined slightly to 208,000 cases. From fiscal years 2010 through 2015, the case backlog grew an average of 38,000 cases per year. At the start of fiscal year 2015, immigration courts had a backlog of about 437,000 cases pending and the median pending time for those cases was 404 days. [Emphasis added.]
There are arguably instances in which it is appropriate for immigration judges to have the authority to administratively close cases. Unfortunately, all too often under the Obama administration, this procedure became nothing more than a "back-door amnesty" for aliens who entered illegally and had no relief. Worse, judging from the numbers, it appears that the process may also have been used to hide the true scope of the backlog within the immigration courts.
It will be impossible for the Department of Justice to identify, let alone ask Congress for funding for, sufficient resources to address the immigration-court backlog until the true scope of that backlog is known. It is now apparent that the number of cases that are pending before the immigration courts of the United States is much larger than the public has been led to believe.
In his final decision, the attorney general should allow for a more limited administrative closure authority, narrowly tailored to give immigration judges the authority, in truly exceptional instances, to remove cases temporarily from the docket. One such circumstance is identified in Matter of Avetisyan: where an alien "has properly appealed from the denial of a prima facie approvable visa petition, but the appeal has not been forwarded to the Board for adjudication," and there are plainly others. The process has been abused, however, and those abuses must be curbed.