Attorney General Jeff Sessions issued a sweeping restriction Thursday on so-called “administrative closures” in the immigration courts that often allow aliens facing deportation to remain in the country indefinitely as their cases fall off the docket, never to be rescheduled.
In March, Sessions indicated he would use his power to overrule the Board of Immigration Review (BIR) to curtail immigration judges’ authority to drop cases without a decision. Thursday, he made good on this pledge, holding that “immigration judges and the Board do not have the general authority to suspend indefinitely immigration proceedings by administrative closure” in a ruling that will curtail one of the main “catch-and-release” methods that became popular under the Obama administration.
As Sessions’s opinion relates, “The practice of administrative closure has grown dramatically as the Board has made administrative closure easier to obtain … This sharp increase tracks changes in Board precedent. For decades, the immigration judge would grant administrative closure only if both parties agreed.”
The Guatemalan illegal alien at issue in this case, Matter of Castro-Tum, is illustrative of the issue. After entering the country illegally in 2014, the 17-year-old “unaccompanied minor” was allowed to enter the United States with only a notice to appear before an immigration court, which he repeatedly failed to do. Eventually, despite DHS objections, his case was simply administratively closed, leaving it effectively closed and the illegal alien free to continue living in America.
A 2011 guidance put in place by Obama era U.S. Immigration and Customs Enforcement (ICE) Director John Morton encouraged the use of “prosecutorial discretion” in any proceeding before the Executive Office of Immigration Review (EOIR), the Department of Justice Office that manages the immigration courts. ICE was instructed to consider factors like aliens’ “pursuit of education in the United States,” “ties and contributions to the community,” and “ties to the home country and conditions in the country,” in considering which removal cases to drop.
Two years later, an EOIR memo “strongly encouraged” the use of the existing administrative closure procedure to get “appropriate” immigration cases off the docket. The result was that use of administrative closure grew rapidly. Between October 1, 2011, shortly after the first of the new rules went into effect, and September 30, 2017, immigration courts issued more than three-quarters as many administrative closures as they did in the previous 31 years.
Most of these 215,285 cases would never be rescheduled, allowing the aliens in question to continue living in the United States. According to Attorney General Sessions’s decision Thursday, “Since 1980, immigration judges have recalendared less than a third of administratively closed cases.”
These cases do not count towards the 600,000+ immigration case backlog currently hamstringing immigration enforcement.
Justice Department spokesman Devin O’Malley issued the following statement:
Starting in 2012, immigration judges began increasingly to rely on administrative closures, which suspended cases indefinitely rather than actually rendering a final decision. Congress never granted such broad authority to immigration judges, nor had the Attorney General delegated it. This process—where immigration court cases were put ‘out of sight, out of mind’—effectively resulted in illegal aliens remaining indefinitely in the United States without any formal legal status. Today’s opinion by Attorney General Sessions promotes the rule of law in the immigration system and eliminates the unfettered use of administrative closures.
Sessions is expected to announce other reviews of BIR decisions with an eye to help whittle down the immigration backlog and stop enabling catch-and-release. Other reforms are apparently in the works. In a statement, O’Malley said:
Many of the policies in recent years have contributed to a three-fold increase of the immigration courts’ pending caseload. This massive increase necessitated the Justice Department’s ‘Strategic Caseload Reduction Plan,’ a series of common-sense reforms that aim to reduce the so-called ‘backlog’ by realigning the agency towards completing cases, increasing both productivity and capacity, and changing policies that lead to inefficiencies and waste.
Plans include seeding immigration judge hiring, allowing electronic filing in immigration cases, and permitting immigration hearings to take place via video teleconferencing.