Here's one thing that seems clear about the management at EOIR--the Executive Office for Immigration Review, the office that oversees our nation's Immigration Courts--no one who works there has ever represented a noncitizen in Immigration Court. How do I know? If the leadership at EOIR had any experience in court or with clients, they would not be implementing so many misguided, destructive, and ineffective policies that are doing great harm to immigrants, their attorneys, and even to DHS attorneys (the prosecutors in court).

The latest dumb idea involves an effort to administratively close cases where the respondent (the noncitizen in Immigration Court) may have some temporary or permanent relief available from USCIS.

What's that you say? Why is this a dumb idea? Doesn't it make sense to close cases where the respondent has some other relief available? Wouldn't most noncitizens be relieved to have their court cases closed? I will explain, but first, let's talk about what EOIR is doing.

The agency is identifying any respondent who might be eligible for some type of relief outside of Immigration Court, and sending that person a "Notice of Intent to Take Case Off of the Court's Calendar." If this happens, the case will be administratively closed. The case remains alive, so if you have a pending asylum case, for example, you can continue to renew your work permit, but it is removed from the calendar and there will be no more hearings, at least for the time being. In the future, you or DHS (or the court) can ask to return the case to the court's active docket.

EOIR is sending these notices to respondents who have Temporary Protected Status (TPS) or could qualify for TPS, to people with a family- or employment-based petition pending with USCIS, and to unaccompanied minors who might be eligible for Special Immigrant Juvenile status. EOIR also seems to be sending notices to respondents who they believe have relief available, even though these respondents do not, in fact, qualify for any other relief.

Once you receive the notice, you have a choice. You can do nothing, which will cause your case to be automatically removed from the court's active docket and set aside, perhaps forever. Alternatively, you can send a response to the court and ask that your case continue as scheduled. Hopefully, judges will honor this request, but they can administratively close a case even if the respondent prefers to go forward. According to EOIR, "Where a request for administrative closure is opposed, 'the primary consideration [for the judge] is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.'" In other words, if you want to keep the case open, you have to give the judge a good reason to go forward.

So why is this policy a bad idea?

First and foremost, many respondents want to finish their cases and get a decision. They do not want their cases closed and placed into eternal limbo. There are good reasons for this. It is stressful and depressing to wait forever, not knowing whether you can stay in the U.S. or whether you will have to leave. Should you buy a house? Get married? Have children? Will you ever be able to reunite with family members overseas? It is difficult to live life under these conditions, especially for years on end. I worry that some Immigration Judges will close cases regardless of the respondent's preference. Or perhaps some respondents will not have a good enough reason (in the judge's opinion) to keep the case open.

Also, even if the judge is willing to abide by the respondent's wishes, the respondent still needs to reply to the notice. For people with lawyers, this will likely involve extra costs, which may be a financial hardship. For respondents without lawyers, these notices are not particularly easy to understand, and I suspect that many people will ignore them, and their cases will be closed for failure to respond. Others might respond but fail to provide a convincing reason why their case should continue, and so their case may be closed against their will.

Admittedly, some respondents might benefit from having their case removed from the court's active docket. These include people who can actually obtain their Green Card from USCIS--most commonly, through marriage to a U.S. citizen or to a Green Card holder who will become a citizen. Others who might benefit from EOIR's policy include people who expect to lose their case. While this group may simply be delaying the inevitable, I suppose it is better to lose the case in the future (possibly the distant future) than today.

How could EOIR have implemented this policy differently?

I would have preferred one of two possible alternatives: (1) EOIR makes a general announcement explaining who is eligible for administrative closure and creating an easy way to request that the case be closed, or (2) EOIR sends a notice informing respondents that they have the option to close their case, and then the respondents can close the case if they so choose. In other words, I would have shifted the burden to respondents to request closure, rather than presuming that they want administrative closure, and then forcing them to take action if they want to keep their case open.

Why is this preferable? Respondents who have waited for years to resolve their cases should not have that opportunity snatched from them, either because they did not understand the need to respond to EOIR's notice or because they could not provide the judge with a good enough reason to allow their case to continue. Also, respondents should not be forced to pay attorneys for additional work solely to keep their cases from being closed. Finally, if EOIR really wanted to help these respondents, it would give them an option to dismiss their cases, which would end the case entirely and allow the respondent to pursue other avenues of relief unencumbered by the ongoing deportation case.

One last point: I fear that EOIR plans to close some cases and then use those time slots to schedule other cases. As far as I can tell, the cases targeted for closure are all from this summer. If new cases are set for those same time slots, respondents (and their lawyers) will have very little time to prepare. Sadly, this fits EOIR's pattern, which has caused great hardship for immigrants and their attorneys.

I suspect that the whole purpose of EOIR's policy is not to help respondents, but rather to remove cases from the courts' active dockets. If EOIR wanted to help people, it could have structured this policy in a manner that was more responsive to immigrants' needs. In the end, this new policy seems destined to harm individual respondents and to do further damage to the Immigration Court system.

Originally posted on the Asylumist: