In a decision that has rocked the immigration removal defense world, Attorney General Sessions has effectively ended administrative closure for cases. No other cases came down this week from the Board of Immigration Appeals or from the Ninth Circuit, but this case deserves a deep and thorough analysis, so be prepared for a long blog post. Just to put some historical perspective on this issue, there really wasn’t administrative closure until 2012, and we managed to practice immigration law. It’s not the end of the world, but it is ugly.
Here are the important holdings of the case. First, the immigration courts and the Board of Immigration Appeals may only administratively close cases under two circumstances: 1) where a previous judicially approved settlement expressly authorizes such an action; and 2) where a previous regulation authorizes closure – but that regulation must have been enacted by the Department of Justice not by the Department of Homeland Security. What these guidelines likely mean is that the immigration courts can no longer administratively close cases in the following situations: where the noncitizen is applying for 601A waivers; where unaccompanied minors are applying for asylum with USCIS or are applying for Special Immigrant Juvenile Status; where the noncitizen is awaiting U visa adjudications; or where the noncitizen is awaiting visa processing for immediate relatives. The Attorney General noted that at the end of Fiscal Year 2017 there were 355,835 administratively closed cases that had not yet been recalendared. The Attorney General recognized that reopening these cases would be unwieldy and would overwhelm the courts. He ordered that all cases that are currently administratively closed may remain closed unless DHS or the noncitizen requests recalendaring. You can stop reading now, because this is the gist of the case.
Here are the facts: Castro-Tum is a native and citizen of Guatemala. On June 26, 2014, when he was seventeen years old he entered the United States illegally as an unaccompanied minor. Customs and Border Protection immediately detained him. On June 28, 2014, DHS served him with a Notice to Appear that stated that he was to appear before the Immigration Court at a specified address on “a date to be set at a time to be set.” (That language might be important in future litigation. The Ninth Circuit recently held that a Notice to Appear that does not list the time, or date of a hearing might violate Due Process. Miller v. Sessions, __ F.3d __, No. 15-72645 (9th Cir. May 8, 2018)). DHS placed Castro-Tum into the custody of the Office of Refugee Resettlement as an unaccompanied minor. On August 20, 2014, he was released into the custody of his brother-in-law. On November 26, 2014, the Immigration Court mailed the first Notice of Hearing to the address of Castro-Tum’s brother-in-law. Ultimately, four Notices of Hearing were sent to the brother-in-law’s address. The post office did not return any of the hearing notices, but Castro-Tum never appeared at the hearing. The Immigration Court granted continuances when Castro-Tum did not appear, rather than ordering him removed in absentia. When Castro-Tum did not appear at the fifth hearing, the Immigration Court ordered the case administratively closed over DHS’s objections. The Immigration Judge explained that he did not think ORR addresses were reliable and that he would not order a respondent removed in absentia without further documentation as to how that address was secured, who furnished it, and who was verifying it. DHS appealed the decision to the BIA. On November 27, 2017, the BIA vacated the order and remanded the case with an order to calendar a new hearing and to proceed in absentia if Castro-Tum did not appear.
On January 4, 2018, the Attorney General certified this case for review. It’s important to note that he chose the case of a minor, who had never appeared at a hearing, and who did not have counsel, to make a huge change to immigration practice. It’s infuriating. In fact, no one even knows if Castro-Tum ever received notice of the case and, to reiterate, he did not have counsel. There are attorneys who are banding together to hire a private investigator to find Castro-Tum so that someone can represent him in Federal Court and appeal this decision.
Now on to the legal implications of this case. First, Sessions limited administrative closure to cases where the Department of Justice promulgated regulations authorizing administrative closure or where there was a court settlement authorizing administrative closure. The Attorney General gave a few examples of when an immigration court could administratively close a case. For example, Victims of Trafficking and Violence Prevention Act victims of human trafficking who seeks a T visa could get removal proceedings administratively closed in order to apply for a T visa, “with the concurrence of DHS counsel.” But, in a very carefully thought out decision, the Attorney General seems to deliberately disallow administrative closure for 601A cases. As you know, in 601A cases, the noncitizen, who is otherwise eligible for an immigrant visa, but must consular process and will be subject to the three or ten-year bar, can apply for a 601A waiver if the only ground of inadmissibility is unlawful presence. The 601A waiver is adjudicated in the United States so that the noncitizen does not have to wait outside the U.S. for processing, which can easily take between eighteen months and two years. However, if the noncitizen is in removal proceedings, the DHS regulations provide that the removal proceedings must be administratively closed to allow USCIS to adjudicate the 601A waiver. 8 C.F.R. § 212.7(e). At first it appears that people applying for 601A might be able to get administrative closure because it is contemplated by the regulations. But, the Attorney General held that DHS regulations cannot provide for administrative closure. Only DOJ regulations can provide for administrative closure. In the now famous footnote 3 the Attorney General writes:
There is also a 2013 DHS regulation discussing administrative closure that has no corollary in Department of Justice regulations. It provides that an alien whose case is administratively closed may be eligible for a provisional unlawful presence waiver, which may streamline the immigration process for spouses or immediate relatives of U.S. citizens who must process their entry through a U.S. Consulate or embassy abroad. 8 C.F.R. § 212.7(e)(4)(iii). If the case is recalendared, however, eligibility disappears. Id. Regulations that apply only to DHS do not provide authorization for an immigration judge or the Board to administratively close or terminate an immigration proceeding.
Matter of Castro Tum, 27 I&N Dec. 271, 277 n.3 (AG 2018) (emphasis added). The Attorney General noted that only the Attorney General may expand the authority of the immigration judges or the Board and that DHS cannot promulgate a regulation expanding the authority of the immigration courts or the Board. Castro-Tum, 27 I&N Dec. at 286 n.9.
The Attorney General found that there is no basis for inferring that the immigration judges or the Board possess a general power to order administrative closure based on some inherent adjudicatory power. The fact that federal courts use this technique as a docket-management tool does not justify the practice in immigration proceedings. Moreover, the current practice of administrative closure lacks a valid legal foundation and it is not appropriate to delegate that authority. The Attorney General held that the immigration courts should either terminate or dismiss cases that cannot go forward. He posited that if the immigration courts terminate and dismiss cases it will ensure finality and decrease the number of pending cases. Cases that should not go forward should either be terminated or dismissed. He stated that if the immigration courts cannot terminate or dismiss cases they can grant continuances on a showing of good cause. The Attorney General concludes by stating that immigration judges and the Board lack authority to administratively close cases.
To Truly Understand this Case Here is the Legal Background
After the Attorney General certified this case to himself he received over fourteen amicus briefs. Tellingly, the DHS brief and one amicus brief argued that no statute or regulation authorized administrative closure. Presumably, the other thirteen briefs argued to the contrary.
The National Association of Immigration Judges (NAIJ) sent a letter asking the Attorney General to affirm the authority of immigration judges to use administrative closure as an effective docket management tool. The NAIJ argued that the use of administrative closure to put a short-term hold on cases that are not ready for completion permitted the immigration judges to attend to and resolves cases that are ready for resolution. They argued that granting continuances is often not efficient because it still occupies a position on the dockets and generates workload for the judges and staff. The NAIJ lists times that it uses administrative closure and notes that if they are denied the power to administratively close cases they will have to decide a case which will likely be reversed on appeal for abuse of discretion. “Even when that is not a problem proceeding to adjudication which results in deportation or denial of relief becomes a waste of precious hearing time, since in the vast majority of such cases the appeal process is not completed before other relief becomes available which results in the case being remanded.”
Letter of Ashley Tabaddor, NAIJ, to Attorney General Sessions, dated January 30, 2018, at 2, AILA Doc. Number 18051752.
What is really interesting is that, earlier this year, the Ninth Circuit thoroughly analyzed the legality of administrative closure. The Ninth Circuit explained that administrative closure is a procedure by which the immigration courts or the board remove a case from the active calendar as a matter of administrative convenience or docket management. The Ninth Circuit noted that although the courts regularly use it, it is not described in the immigration statutes or regulations. Gonzalez-Caraveo v. Sessions, 882 F.3d 885 (9th Cir. 2018). But, the Ninth Circuit noted that from the regulatory language it is evident that the immigration courts and the Board are empowered to take various actions for docket management. They found it is a tool that the courts must be able to use in appropriate circumstances as part of their delegated authority, independence and discretion under 8 C.F.R. §§ 1103.10(b) and 1103.1(d)(1)(ii).
The Ninth Circuit noted the that the BIA provided a list of non-exhaustive factors for the immigration court or the BIA to consider in determining whether administrative closure was appropriate. Matter of Avetisyan, 25 I.&N. Dec. 688 (BIA 2012). Prior to the holding in Avetisyan the Ninth Circuit found that it did not have jurisdiction over denials of administrative closure. The Ninth Circuit looked to a Supreme Court administrative law decision which established that “where there is no “sufficiently meaningful standard,” this Court cannot review an agency’s decision. Heckler v. Cheney, 470 U.S. 821 (1985) (involving prison inmates’ action to compel the Food and Drug Administration to take an enforcement action based on a claim that use of the drugs used for lethal injections violated the Federal Food and Drug Cosmetic Act). In assessing whether a “sufficiently meaningful standard” exists, the courts look to three things: language in the relevant statute; language in the relevant regulations; and BIA decisions specifying a standard for the immigration courts and the Board to use. Gonzalez-Caraveo, 882 F.3d at 891. The Ninth Circuit applied these factors in Diaz-Covarrubias v. Mukasey, 551 F.3d at 1114 (9th Cir. 2009) (pre-Avetisyan) and found that there was no clear regulatory or statutory basis for administrative closure and that given this lack of guidance, they lacked jurisdiction under Heckler to review a claim challenging administrative closure decisions.
Interestingly, the Ninth Circuit found that “administrative closure – a decision to continue a matter by taking it off the Immigration Court or BIA’s docket – is not the sort of decision that “involves a complicated balancing of a number of factors which are particularly within [the agency’s] expertise.” Gonzalez-Caraveo, 882 F.3d at 892. So, the Ninth Circuit might be hesitant to afford Chevron deference to the Attorney General on this issue. Even more importantly the Ninth Circuit held, “the agency’s administrative closure decision can affect one’s liberty, which is an area that federal courts are often called upon to protect.*.*.*. Nothing in Heckler precludes us from exercising jurisdiction in this case. Gonzalez-Caraveo, 882 F.3d at 892-93. But, here is the hard part: “Because the Avetisyan factors provide this Court with a “sufficiently meaningful standard” by which to evaluate the IJ or BIA’s decision, we hold that this court has jurisdiction to review administrative closure decisions.” Gonzalez-Caraveo, 882 F.3d at 893. Because Sessions abrogated Avetisyan, does that mean that under Heckler the Circuit Courts no longer have jurisdiction over an administrative closure decision because there is no longer a “sufficiently meaningful standard” as required by Heckler? So, even though there are Due Process concerns and even though these decisions are not entitled to Chevron deference, we are still going to have an uphill battle with the issue of jurisdiction. There might not be jurisdiction under Heckler because there is no “sufficiently meaningful standard” for the courts to review. Gonzalez-Caraveo v. Sessions, 882 F.3d 885 (9th Cir. 2018).
Matter of Castro-Tum, 27 I.&N. Dec. 271 (A.G. 2018).