Attorney General Garland Brings Back Administrative Closure for Immigration Judges

by Emma Winger

Attorney General Merrick Garland vacated Matter of Castro-Tum on July 15, reviving a key tool to help judges prioritize cases in the overburdened immigration court system and allow people facing deportation to pursue all available paths to legal status.

In Matter of Cruz-Valdez, the attorney general reversed a decision by prior Attorney General Jeff Sessions. Garland restored the ability of immigration judges (IJs) and the Board of Immigration Appeals (BIA) to administratively close deportation proceedings nationwide.

Administrative closure is an important tool long used by IJs and the BIA to temporarily pause removal proceedings in appropriate circumstances. When a case is administratively closed, it is removed from the court docket and there are no future hearing dates. The case is not dismissed or terminated entirely. Instead, it will be put back on the court docket when either the noncitizen or the U.S. Department of Homeland Security (DHS) successfully move to “recalendar” the case.

Until 2018, IJs and the BIA used administrative closure to pause proceedings for a range of reasons. Administrative closure allowed noncitizens to pursue legal status that could only be obtained outside of deportation proceedings, through U.S. Citizenship and Immigration Services (USCIS). Individuals facing deportation due to unlawful criminal convictions could pursue appeals or other post-conviction challenges. Administrative closure also helped protect the rights of individuals with mental illness, including pausing proceedings to allow for mental health treatment.

Administrative closure could also de-prioritize certain cases. DHS would agree to administrative closure of removal proceedings for immigrants who were not a high priority for removal.

In 2018, Attorney General Sessions issued an opinion in Matter of Castro Tum declaring that IJs and the BIA did not have the authority to administratively close most cases. Since that decision, three federal courts of appeals have rejected Castro Tum. Only the U.S. Court of Appeals for the Sixth Circuit agreed with Castro Tum. Even the Sixth Circuit later found that immigration courts still had authority to administratively close cases for individuals pursuing a certain waiver with USCIS in order to apply for a green card.

In December 2020, the Trump administration enacted a rule that would have eliminated administrative closure. Two federal courts enjoined that rule, finding that it violated the Administrative Procedure Act. The Department of Justice (DOJ) is reconsidering that rule.

In Matter of Cruz-Valdez, Attorney General Garland finally put an end to Castro Tum, noting that it “departed from long-standing practice.” The decision restores administrative closure nationwide, with the possible exception of cases within the Sixth Circuit.

Garland ordered IJs and the BIA to evaluate requests for administrative closure under the standards in place before Castro Tum was decided. In addition, DOJ will pursue notice-and-comment rulemaking which will allow the public to participate in any future rule on the availability of administrative closure.

Garland’s decision is common sense. By recognizing and restoring the well-established legal authority to administratively close cases, the attorney general gives IJs and the BIA an essential tool that will ease the burden on the backlogged immigration courts and allow for more flexibility in pursuing the fair and just resolution of deportation proceedings.

This post originally appeared on Immigration Impact.Reprinted with permission.


About The Author

Emma Winger is a Staff Attorney with the American Immigration Council, where she works to protect the rights of noncitizens through affirmative litigation, amicus briefs, and practice advisories for immigration attorneys. Before joining the Council, Emma was a staff attorney with the Immigration Impact Unit of the Committee for Public Counsel Services in Massachusetts, where she advised criminal defense counsel about the immigration consequences of criminal dispositions and engaged in litigation on issues involving the intersection of criminal and immigration law. In addition, she spent two years as a law clerk for a federal district court judge in New Jersey. She holds a J.D. from Boston College Law School and a B.A. in History from Yale University.


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