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  • Article: Already Facing a Backlog, Sessions Aims to Add 350,000 Cases to Immigration Courts By Aaron Reichlin-Melnick For Immigration Impact

    Already Facing a Backlog, Sessions Aims to Add 350,000 Cases to Immigration Courts


    In a rare move, Attorney General Jeff Sessions recently referred an immigration case to himself , invoking a federal statute that allows attorneys general to reconsider cases decided by the Board of Immigration Appeals, which hears appeals from immigration courts nationwide. Sessions referred the case to himself after an immigration judge recently closed the administrative proceedings in an immigration case—a standard procedure in immigration court that Sessions now plans to examine and possibly eliminate.

    This procedure, known as “administrative closure,” is a process by which an immigration judge decides that removing a case from its active court docket is the best course of action. As a result, it is an important tool that permits overburdened immigration judges to better control their dockets by allowing them to prioritize the hearings they conduct. The Board of Immigration Appeals has described administrative closure as an “attractive option” for immigration judges to “avoid the repeated rescheduling of a case that is clearly not ready to be concluded.”

    An immigration judge’s decision to administratively close a case must take several factors into consideration, including, among others, the objection of the government to the closure, the likelihood the immigrant will succeed on a petition or application, and the length of time a case will be administratively closed.

    Administrative closure may be appropriate, for example, in a case where an individual demonstrates that he or she is eligible for a green card but is awaiting additional processing. It also may be an appropriate step when an immigrant is not competent to participate in court proceedings or is awaiting a decision regarding an appeal of a criminal conviction, which could alter the outcome of immigration proceedings.

    Without administrative closure, an immigrant might be prematurely and unlawfully deported. By some estimates, there are roughly 350,000 cases currently administratively closed . If Sessions were to restrict or eliminate administrative closure, thousands of cases would return to the dockets of immigration courts, adding to the 650,000 cases already pending in courts nationwide.

    While decisions on whether an immigration judge has the authority to grant administrative closure would usually be decided through an appeals process, the attorney general has the authority to overturn the Board of Immigration Appeals by “certifying” any case to himself. This is Sessions’ first use of the certification power since being appointed to the attorney general position.

    If Sessions decides to end administrative closure, it could lead to 350,000 people being hauled back to immigration court years, or even decades, after having last been in front of a judge. Because immigration courts already have a massive backlog , placing these cases back on the active docket could “cripple the [immigration] courts even further,” according to Paul Schmidt, the former head of the Board of Immigration Appeals. “They can’t do the cases they have now—why is he out there looking for more?”

    In addition, because many individuals with administratively closed cases are eligible for relief, any decision to place their cases back on an active deportation docket may not lead to their deportation, as Sessions might intend.

    Sessions’ scrutiny of the administrative closure process is aligned with his expressed desire to overhaul the immigration court systems in favor of speedier adjudications , including strict case-completion goals for immigration judges. Organizations interested in submitting briefs on the administrative closure questions Sessions raises, including the legal authority for immigration judges to manage their dockets, have until February 9 to do so.

    This post originally appeared on Immigration Impact. © 2017 Immigration Impact. All rights reserved. Reprinted with permission.

    About The Author

    Aaron Reichlin-Melnick is a Staff Attorney at the American Immigration Council, where he works primarily on impact litigation and amicus curiae briefs. Prior to joining the Council, he was an Immigrant Justice Corps Fellow placed as a Staff Attorney at the Immigration Law Unit of The Legal Aid Society in New York City, representing immigrants placed in removal proceedings because of a prior criminal conviction. Aaron holds a J.D. from the Georgetown University Law Center and a B.A. in Politics and East Asian Studies from Brandeis University.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 1 Comment
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      Aaron says, the Attorney General is "invoking a federal statute that allows attorneys general to reconsider cases decided by the Board of Immigration Appeals."

      No, he does not need to invoke statutory provisions to reconsider a decision rendered by the Board of Immigration Appeals (Board). The Board is not a statutory body. It exists by virtue of regulations that were promulgated by the Attorney General, and the regulations state the following with respect to review by the Attorney General:

      (h) Referral of cases to the Attorney
      General. (1) The Board shall refer to the
      Attorney General for review of its decision
      all cases which:
      (i) The Attorney General directs the
      Board to refer to him.
      (ii) The Chairman or a majority of
      the Board believes should be referred to
      the Attorney General for review.
      (iii) The Commissioner requests be
      referred to the Attorney General for review.

      I wrote decisions for the Board for more than twenty years. I was appointed by the Attorney General and my certificate said that I served at his pleasure, which means that he could have fired me at any time if he had decided that it no longer pleased him to have me working at the Board. I haven't seen the certificate that Board members get, but I am sure that it says something similar. Attorney Generals periodically remove Board members.

      Are you suggesting that there is something improper about the Attorney General's interest in speedier adjudications when the immigration court is experiencing a backlog crisis? He is supposed to intervene when there is a problem.

      As for completions goals, I think you mean keeping track of how many decisions each immigration judge renders over specified time periods. That may be new to the immigration court, but the Board has always kept track of production figures on the attorneys who write the decisions for the Board. When I was there, you needed to get twenty decisions a month signed by the Board to get a good performance evaluation, and you couldn't meet your production goals by just doing your easy cases.

      And the Board has a streamlining panel which handles cases that do not appear to have merit, e.g., appeals with just a several paragraph appeal statement that doesn't state a significant issue. The streamlining panel will use form decisions for these cases. You type in the name of the alien, etc., and other essential information and then print the decisions. You are expected to explain why the case is appropriate for such disposition on the cover sheet. The decision and the file go to a single Board member, as opposed to a three member panel. A docket clerk picks the cases that will receive this streamlined treatment, so it is not uncommon for the attorney who gets the case to reject it and put it on a pile in the docket room for reassignment to a merits panel that does thorough reviews.

      A good month for streaming work was 100 signed decisions. That got you into the Century club.

      I haven't worked at the board since the year 2000, so things may have changed

      Nolan Rappaport
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