Matter of Castro-Tum: The Future of Administrative Closures and Due Process

The United States Attorney General has the power to refer cases that are pending appellate review from the Board of Immigration Appeals (BIA) to themselves for review.[2] This process is called “referral and review.”[3] In the past, Attorneys General rarely used this power.[4] But in his short-lived tenure as Attorney General, Jeff Sessions quested to fully exert all the powers that were given to the Office of the U.S. Attorney General. Through an unprecedented move, and pursuant to 8 C.F.R. § 1003.l(h)(l)(i) (2017), former Attorney General Jeff Sessions certified Matter of Castro-Tum to himself.[5]

In re Matter of Castro-Tum was one of the influential cases that the former Attorney General certified to himself. In Matter of Castro-Tum, the former Attorney General ruled that “[I]mmigration Judges and the Board [BIA] do not have the general authority to suspend indefinitely immigration proceedings by administrative closure.”[6] But the Attorney General found that “immigration judges and the BIA may only close a case where a previous regulation or a previous judicially approved settlement expressly authorizes such an action.”[7] In the past, though no statute or regulations conferred the power of administrative closure to immigration judges, “[a]dministrative closure has been used to temporarily remove a case from an immigration judge’s active calendar or from the Board’s docket.”[8] It has been used as a docket management tool by judges to manage the caseload and preserve the immigration court’s limited resources.[9] As the court has stated, essentially “[a]dministrative closure is a procedural tool created for the convenience of the Immigration Courts and the Board.”[10] On when it is appropriate to use administrative closure, the court stated in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), that “[i]n general, administrative closure may be appropriate to await an action or event that is relevant to immigration proceedings but is outside the control of the parties or the court and may not occur for a significant or undetermined period of time.”[11]

When a case is administratively closed, it means that the case is indefinitely put on hold and removal proceedings are delayed.[12] This allows the United States Citizenship and Immigration Services (USCIS) to work on green card applications and visa applications of respondents who are in removal proceedings but also qualify for certain USCIS benefits or relief against deportation. Some of these benefits are visa applications for immigrant women who have been abused by an U.S. citizen or a lawful permanent resident spouse. The Violence Against Women Act (VAWA), protection for undocumented immigrants who have been a victim of crimes (U Non-Immigrant-visa), and visas for relief for abused children that are called Special Immigrant Juvenile (SIJS), are granted by federal and statutory law. When these USCIS applications are granted before the court date for removal proceedings, the removal proceeding case can then be officially terminated and removed from the docket. Unfortunately, the former Attorney General’s ruling in Matter of Castro-Tum has set an immigration precedent decision that strips immigration judges of their independence in exercising their discretion to adjudicate cases.

The History of Administrative Closure

Regarding the history of the use of administrative closure, according to the Attorney General’s opinion, it was first used in the early 1980s.[13] In 1984, the Chief Immigration Judge, William R. Robie, instructed all immigration judges to consider administrative closure as one means of addressing the recurring problem of respondent’s failure to appear at hearings.[14]

In the past, administrative closures were not used when one party opposed it. But this changed with the decisions in Matter of Avetisyan and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017). In Matter of Avetisyan, an immigration judge administratively closed the removal proceedings against the respondent. The Department of Homeland Security (“DHS”) filed an interlocutory appeal from that decision against the respondent. The immigration judge dismissed the appeal and set out an exhaustive list of factors that immigration judges and the BIA should consider when using administrative closure.[15] The decision stated that the Board should consider:

  1. the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is re-calendared before the immigration judge or the appeal is reinstated before the Board.[16]

In Matter of Avetisyan, the immigration court found that the “[a]lthough administrative closure impacts the course removal proceedings may take, it does not preclude the DHS from instituting or pursuing those [removal] proceedings.”[17] Hence, administrative closure does not infringe on the DHS’s prosecutorial discretion.[18] Before, Matter of Avetisyan, when immigration judges could use administrative closure for a number of reasons by exercising their discretion, the DHS would move to re-calendar an administratively closed case. Re-calendering cases put them back on the active docket, so the burden of convincing an immigration judge to re-calendar a case and put it back on its active docket falls on DHS. Matter of Avetisyan set a precedent and provided a list of factors that an immigration judge or the Board should weigh before using administrative closure. Matter of W-Y-U- expanded on Matter of Avetisyan and added a clarified list of factors immigration judges may consider when using administrative closure.[19] In Matter of W-Y-U-, the court found that “the primary consideration for an immigration judge in determining whether to administratively close or re-calendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.”[20] According to the immigration judge, “[t]his individualized evaluation prevents a party from keeping a case on an Immigration Court’s active docket absent a reasoned explanation or justification.”[21]

Jeff Sessions and Matter of Castro-Tum

Matter of Castro-Tum is the influential case that sent the former Attorney General Jeff Sessions on a quest to write an unprecedented opinion and order that overrules Matter of Avetisyan and Matter of W-Y-U. In Matter of Castro-Tum, respondent Castro-Tum was an unaccompanied minor who was released. The respondent entered this country illegally in 2014 and was immediately detained. As an unaccompanied minor, he was served with a Notice to Appear and released to a relative after providing the address where they would reside. Despite several efforts to notify the respondent of his hearing dates, he repeatedly failed to appear. The immigration judge nonetheless continued this case four times and finally ordered the case administratively closed on the ground that DHS had not shown that it had a sufficiently reliable address to provide adequate notice.[22]

Administrative Closure under Presidents Obama and Trump

Under the Obama Administration, DHS also used administrative closure as a tool to preserve government resources, by recommending or agreeing to the closure of non-priority cases.[23] But the former Attorney General claims this use of administrative closure improperly burdens DHS and benefits aliens.[24] Matter of Castro-Tum is a rather unique case because it is an absentia case. Absentia cases are those cases where respondents fail to appear in court.[25] Typically, immigration judges and the BIA do not use administrative closure in absentia cases like Matter of Castro-Tum.[26] The BIA in Matter of Avetisyan emphasized that issuing administratively closure in absentia cases should not be used. Matter of Avetisyan involved a situation where the respondent in removal proceedings had failed to appear for the last hearing scheduled in deportation proceedings. There the hearing had already been continued several times and deportability of the respondent had been established.[27] After five scheduled immigration hearings and no-shows on the part of the undocumented immigrant, judges usually issue an absentia deportation order. This was a case, however, in which the judge found that the government’s efforts to send hearing notices to the respondent’s correct address were inadequate.[28]

As previously stated above, under normal circumstances, the types of cases that are administratively closed are cases in which respondents are in removal proceedings but also have a pending USCIS relief application, like a green card or asylum application. Administratively closing the cases allows the USCIS to process the applications for humanitarian relief that respondents are entitled to per U.S. immigration law.

This opinion and order by the former Attorney General violated the Due Process rights of undocumented immigrants. In fact, the USCIS has a backlog of cases so it usually takes a while for applications to be processed. As far as due process is concerned, it makes sense to administratively close a case that is not a priority on the active docket because the respondent has a pending application before the USCIS. The former Attorney General claimed that there is no general authority for administrative closure.[29] But an amicus filed by the Catholic Legal Immigration Network Inc. in the Castro-Tum case argued otherwise. In their amicus brief, the Catholic Legal Immigration Network Inc. cited three general authorities that guides the use of administrative closure. They are:

(1) the Department of Justice must engage in “Notice and Comment” to amend its regulations and; (2) withdrawing authority to administratively close cases would violate several binding Settlement Agreements; and (3) if the respondent was not served with notice of these proceedings, the Attorney General lacks authority to order him removed and thus must terminate this proceeding.[30]

Effect of the Decision on Due Process Rights

The opinion in Castro-Tum violated due process rights of undocumented immigrants. According to the opinion in Matter of Castro-Tum, the respondent failed to show at five hearings.[31] On each of the four hearing, the immigration judge granted a motion to continue instead of ruling for removal in absentia.[32] This was because during the time of the respondent’s fourth hearing, the immigration judge had considered the respondent’s case along with other cases involving unaccompanied alien children. The judge expressed concerns about the adequacy of the hearing notices in these unaccompanied children’s cases because, there were instances in which the notices sent to the respondents (unaccompanied minors) had been returned to the sender.[33]

The Immigration Judge in Castro-Tum’s case ordered administrative closure of the case. The Immigration Judge stated that he did not view the address provided by Human and Health Services – Office of Refugee Resettlement (HHS-ORR) as reliable and would not proceed in absentia unless the government provided further documentation to show how the address was secured, who furnished it, and who verified it.[34] The immigration judge’s role in making sure that the due process rights of respondent’s in removal proceedings are protected is imperative. This role creates a foundation that ensures that the human rights and dignity of immigrants in removal proceedings are protected. In Agyeman v. INS, the Ninth Circuit Court elaborated on the scope of procedural due process that the U.S. Constitution guarantees respondents in removal proceedings. The court stated that:

[t]he Fifth Amendment guarantees individuals who are subject to deportation Due Process in Immigration and Naturalization Service proceedings. An alien who faces deportation is entitled to a full and fair hearing of his claims and a reasonable opportunity to present evidence on his behalf. In addition, aliens in deportation proceedings are entitled by statute and regulation to certain procedural protections.[35]

The court further explained that “If an alien [immigrant] is prejudiced by a denial of any of the applicable procedural protections, he is denied his constitutional guarantee of due process.”[36]
Hence if the respondent, Castro-Tum, was not served with adequate notice, then due process was denied. Adequate notice, according to the judge in Castro-Tum, is notice that has been verified and the appropriate documentation of how it was delivered taken. Absent this delivery of notice, the respondent would be deprived of the right to a full and fair hearing which in effect violate his due process rights. On the other hand, according to the former Attorney General, in the respondent Castro Tum’s case, “the DHS demonstrated that HHS-ORR (Human and Health Services-Office of Refugee Resettlement) had obtained the relevant address from the respondent in multiple forms and provided additional proof that the mailing address did not contain errors.”[37]

This is the crest of the whole issue in this case. With these facts alone, we do not know which party is telling the truth of the matter. Yet still, as previously mentioned, in Matter of W-Y-U– the immigration judge held that opposing administrative closure provided a persuasive reason for the case to proceed and be resolved on the merits. There would be no issue with due process rights if adequate notice had been sent to the respondent. But if the immigration judge was at fault in failing to rule in absentia when the respondent has failed to show up for four consecutive hearing, it still stands that immigrants in removal proceedings are guaranteed the due process rights of the Fifth Amendment. The rights granted by the Bill of Rights are fundamental to the advancement of rule of law and should not be easily taken away with the stroke of the Attorney General’s pen. In the same way that immigration judges and the BIA are subject to the authority of the Attorney General, the Attorney General is subject to the U.S. Constitution.

Effects of the Decision Beyond Due Process Rights

Unfortunately, the former Attorney General’s order and opinion in Castro-Tum is retroactive.[38] The decision seeks to reopen cases that were closed using administrative closure. As previously stated, when the former Attorney General certified Matter of Castro-Tum to himself, the Catholic Legal Immigration Network Inc. filed an amicus curiae brief. The brief cited various federal provisions as authorities that guarantee administrative closure of cases. It cited provisional waivers regulations as one of the federal provisions for administrative closure. Provisional waiver allows certain immigrants, like asylees, to waive their inadmissibility in the U.S. Some asylees are categorized as inadmissible because they entered the U.S. without inspection. But in this situation, the provisional waiver of inadmissibility removes that inadmissibility title, so the asylum seeker can proceed with their asylum application.

Additionally, the brief stated that there are at least two settlement agreements from class action lawsuits that bind U.S immigration judges to administratively close cases. The settlement agreement resulting from American Baptist Churches v. Thornburgh (“ABC Settlement”) allowed for administrative closure of cases and special provisions to protect against the detention of certain asylum seekers from Guatemala and El Salvador.[39] The Barahona Settlement is a settlement agreement resulting from a class action lawsuit that challenged EOIR’s directives which prohibited immigration judges and the Board of Immigration Appeals from granting a suspension of deportation during the period between February 13 and April 1, 1997.[40] On April 1, 1997, a new law (Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Section 309(c)(5)) took effect and made people ineligible for suspension if they had not been continuously physically present in the United States for a period of seven years at the time that they were served a notice to appear order. However, the Barahona Settlement made it possible for eligible class members who could have been granted suspension during the period between February 13 and April 1, 1997, before this new restriction took effect, to be given the opportunity to apply for suspension under the standards that existed prior to April 1, 1997.[41]

Settlements like the ABC Settlement and the Barahona Settlement require immigration judges to administratively close cases in certain instances. Both settlement agreements make it clear that the Attorney General does not have the unilateral power to withdraw immigration judges and the Board of Immigration powers of administratively closing cases.

Another effect of the opinion and order by the former Attorney General is the reopening and re-calendaring of cases that had been administratively closed by immigration judges and the BIA. According to a Reuters report, administrative closures ramped up under the Obama administration to more than 200,000 cases.[42] There was already a backlog of more than 650,000 cases in immigration courts as of January 2018.[43] This opinion and order by the former Attorney General will generate more backlog to the already backlogged immigration system. In an open letter, U.S. Senator Catherine Cortez Masto (D-Nev.) expressed her concerns about reports that Immigration & Customs Enforcement (ICE) intends to re-open and re-calendar 350,000 deportation cases that are currently administratively closed.[44] In the letter, Senator Cortez Masto indicated that “[a]ny plan to reopen and re-calendar all of the currently administratively closed cases will undeniably overwhelm the already flooded immigration court backlog.”[45] Currently, there are over 730,000 pending cases in the court.[46]

Senator Cortez Masto asked a series of questions that related to the effect of the Attorney General’s decision and how the Executive Office for Immigration Review (EOIR) and ICE are going to handle the re-calendaring of previously administratively closed case. The EOIR “under a delegation of authority from the Attorney General, is charged with adjudicating matters brought under various immigration statutes to its three administrative tribunals: the Board of Immigration Appeals, the Office of the Chief Immigration Judge, and the Office of the Chief Administrative Hearing Officer.”[47] There are instances where undocumented immigrants cases were closed. In her open letter, Senator Masto continued to ask questions about what was going to be done in the case of vulnerable individuals whose cases were closed as an incompetency safeguard under Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011).[48] Senator Masto asks, “[w]hat safeguards will ICE and Executive Office for Immigration Review put in place to ensure that these individuals understand the nature of the re-calendared proceedings, along with any resulting requirements that they appear in immigration court?”[49] Just like Senator Masto, legal advocates and critics of the former Attorney General’s ruling in Matter of Castro-Tum are seeking answers to these questions.

In conclusion, before the Trump administration, immigration judges used administrative closures to independently organize and arrange their docket. Former Attorney General Sessions’ opinion and decision strips this independence away and puts immigration judges and the BIA in a box. Although immigration judges are appointed by the executive branch, they should be held to different standard than and not treated as mere political appointees. The use of administrative closure is not a zero-sum game but a win for all. It helps in making sure that the due process rights entitled to respondents in removal proceedings seeking humanitarian relief are not violated. Again, using administrative closure does not mean that a case is completely closed, rather, the case is temporarily closed and removed from the active docket to allow immigration judges and the BIA to effectively use the limited resources of the immigration system. Reopening cases that have been closed administratively would not help but burden the already backlogged immigration system.

  1. Associate Member, Immigration and Human Rights Law Review
  2. In re Castro-Tum, 27 I. & N. Dec. 271, 271 (B.I.A. May 17, 2018) (citing 8 C.F.R. § 1003.1(h)(1)(i)).
  3. Bijal Shah, The Attorney General’s Disruptive Immigration Power, 102 Iowa L. Rev. Online 129, 130 (2017), https://ilr.law.uiowa.edu/assets/Uploads/ILR-102-Shah.pdf.
  4. Id.
  5. 27 I&N Dec. 187 (A.G. 2018) (Nov. 29, 2018), https://www.justice.gov/eoir/page/file/1022366/download.
  6. In re Castro-Tum, 27 I. & N. Dec. 271, 271 (B.I.A. May 17, 2018).
  7. Id.
  8. Matter of W—Y—U—, 27 I. & N. Dec. 17, 17-18 (B.I.A. April 18, 2017) (quoting Matter of Avetisyan, 25 I&N Dec. 688, 692 (B.I.A. 2012)).
  9. The End of Administrative closure: Sessions moves to further strip immigration judges of independence, Catholic Legal Immigration Network Inc. (Nov. 29, 2018), https://cliniclegal.org/resources/end-administrative-closure-sessions-moves-further-strip-immigration-judges-independence.
  10. Matter of Avetisyan, 25 I. & N. Dec. 688, 690 (B.I.A. January 31, 2012) (quoting Matter of Gutierrez, 21 I. & N. Dec. 479, 480 (B.I.A. 1996)).
  11. Id. at 692.
  12. Lolita Brayman, The end of administrative closure: Sessions moves to further strip immigration judges of independence, Catholic Legal Immigration Network Inc. (Nov. 29, 2018), https://cliniclegal.org/resources/end-administrative-closure-sessions-moves-further-strip-immigration-judges-independence.
  13. In re Castro-Tum, 27 I. & N. Dec. 271, 273 (B.I.A. May 17, 2018) (quoting EOIR, Re: Operating Policy and Procedure 84-2: Cases in Which Respondents/Applicants Fail to Appear for Hearing at 1-2 (Mar. 7, 1984)).
  14. Id.
  15. Matter of Avetisyan, 25 I. & N. Dec. 688, 688 (B.I.A. January 31, 2012).
  16. Id. at 694
  17. Id. at 688
  18. Id. at 694.
  19. Rebecca Scholtz, New BIA precedent decision on administrative closure, CATHOLIC LEGAL IMMIGRATION NETWORK INC. (Dec. 13, 2018), https://cliniclegal.org/resources/new-bia-precedent-decision-administrative-closure.
  20. Matter of W—Y—U—, 27 I. & N. Dec. 17, 18 (B.I.A. April 18, 2017).
  21. Matter of W—Y—U—, 27 I. & N. Dec. 17, 18 (B.I.A. April 18, 2017) (quoting Matter of Lamus, 25 I&N Dec. 61, 65 (BIA 2009).
  22. In re Castro-Tum, supra 6.
  23. Richard Gonzales, Sessions Moves To Curb Immigration Judges’ Authority, Nat’l Pub. Radio (Nov. 29, 2018),https://www.npr.org/sections/thetwo-way/2018/05/17/612200263/sessions-moves-to-curb-immigration-judges-authority.
  24. In re Castro-Tum, supra 6.
  25. Practice Pointer: Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) Catholic Legal Immigration Network Inc. (Dec. 12, 2018), https://cliniclegal.org/sites/default/files/Castro-Tum-Practice-Pointer-Final-6-5-2018.pdf.
  26. Id.
  27. In re Castro-Tum, supra 6.
  28. Richard Gonzales, Sessions Moves To Curb Immigration Judges’ Authority, NPR (Nov. 29, 2018), https://www.npr.org/sections/thetwo-way/2018/05/17/612200263/sessions-moves-to-curb-immigration-judges-authority.
  29. Shah, supra 3.
  30. Matter of Castro-Tum Amicus Brief, CATHOLIC LEGAL IMMIGRATION NETWORK INC. (Nov. 29, 2018), https://cliniclegal.org/news/matter-castro-tum-amicus-brief.
  31. In re Castro-Tum, supra 6.
  32. Id.
  33. Id.
  34. Id.
  35. Agyeman v. INS, 296 F.3d 871, 875 (9th Cir. 2002).
  36. Id at *877 (quoting Campos-Sanchez, 164 F.3d at 450.)
  37. Matter of Castro-Tum Amicus Brief, supra 30.
  38. Practice Pointer: Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) Catholic Legal Immigration Network Inc. (Dec. 12, 2018), https://cliniclegal.org/sites/default/files/Castro-Tum-Practice-Pointer-Final-6-5-2018.pdf.
  39. Id.
  40. Exhibit Advisory Opinion Class Action Settlement to Benefit Certain Persons Who Applied for Suspension of Deportation Before April 1, 1997, United States Citizenship and Immigration Services (USCIS) (Dec. 13, 2018), https://www.uscis.gov/sites/default/files/files/article/Barahona_Gomez.pdf.
  41. Id.
  42. Matter of Castro-Tum Amicus Brief, supra 30.
  43. Massoud Hayyoun, Is Trump Solving The Immigration Court Backlog Or Is He Funding It? Pacific Standard (January 5, 2018), https://psmag.com/social-justice/is-trump-solving-the-immigration-court-backlog-or-is-he-funding-it.
  44. Cortez Masto, Colleagues Raise Concerns About ICE Intention to Reopen Administratively Closed Deportation Cases, (Nov. 29, 2018), https://www.cortezmasto.senate.gov/news/press-releases/cortez-masto-colleagues-raise-concerns-about-ice-intention-to-reopen-administratively-closed-deportation-cases#_ftn1.
  45. Id.
  46. Id.
  47. Executive Office for Immigration Review, National Archives Federal Register (Dec.13, 2018), https://www.federalregister.gov/agencies/executive-office-for-immigration-review.
  48. In re Castro-Tum, supra 6.
  49. Cortez Masto, supra 43.

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