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Administrative Closure: A Necessary Tool for Immigration Courts

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Introduction

Administrative closure is a docket-management mechanism used by immigration judges and the Board of Immigration Appeals (“BIA”) since the 1980s.[1] Typically, administrative closure is used when the decision on a case is affected by an application pending before another government agency, for example, when a decision for removal relies on the outcome of an asylum application before the United States Citizenship and Immigration Services (“USCIS”).[2] This essentially allows immigration judges to temporarily pause removal proceedings by removing the case from the court’s docket or active calendar.[3] In a 2013 memorandum, the Chief Immigration Judge stated that “administrative closure is a legitimate method of removing a case from the court’s active docket, and preserving limited adjudicative resources.”[4] Many non-citizens rely on administrative closure, especially children.[5] Immigrant children often rely on administrative closure while applying for special immigrant juvenile status, or another type of protected status.[6] These processes can take years, and without administrative closure “those children could be deported while their application for a green card is pending with another immigration agency.”[7]

Importantly, administrative closure by itself is not a ruling upon an immigrant’s status, nor does it terminate their case.[8] At any point after administrative closure, either party can request the case be “recalendared,” meaning the case is placed back on the court’s docket.[9] As of 2020, when cases were recalendared and decided, six out of ten immigrants were adjudicated to remain in the United States.[10] During the Obama administration, administrative closure was used to close cases through specific prosecutorial discretion for “low priority cases.”[11] This allowed the court to clear low-priority cases from its docket so that it could focus on and expedite decisions on higher-priority cases.[12] High priority cases are those where a non-citizen has been involved in some sort of criminal activity and/or poses a danger to society.[13] This program only lasted six years before it was stopped in early 2017 upon the inauguration of former President Trump.[14] Before Matter of Castro-Tum in 2018, administrative closure was used to allow noncitizen in removal processes time to pursue actions outside of immigration court, like filing applications with USCIS, that could bring about relief from removal.[15] Administrative closure also allows respondents who have approved immigrant visa petition to filing a “an I- 601A application to provisionally waive the unlawful presence ground of inadmissibility prior to leaving the country to process their visas at a consulate.”[16] Administrative closure also allows noncitizens who need it, time to seek treatment in the United, and allows for time to ensure a fair hearing.[17]

In 2018, former Attorney General Jeff Sessions effectively ended the use of administrative closure in a BIA case, Matter of Castro-Tum, overturning years of precedent.[18] In 2020, the Sixth Circuit Court of Appeals upheld this decision in Hernandez-Serrano v. Barr.[19] Notably, it was the only court of appeals to uphold Matter of Castro-Tum.[20] In 2021, the Sixth Circuit Court of Appeals created a carveout exception in cases of provisional unlawful presence waivers in Garcia-Deleon v. Garland.[21] Later that year, in Matter of Cruz-Valdez, the Attorney General, Merrick Garland, overturned Matter of Castro-Tum and restored administrative closure, except when a court of appeals held otherwise, meaning that the Sixth Circuit Court of Appeals ruling in Hernandez-Serrano v. Barr still stands.[22] Matter of Cruz-Valdez reinstated Matter of Avetisyan and Matter of W-Y-U- as the governing case law unless held otherwise by a court of appeal.[23] In April of 2022, the Sixth Circuit Court of Appeals declined to vacate its original decision in Hernandez-Serrano v. Barr, making it the only United States Court of Appeal to still uphold the reasoning in Matter of Castro-Tum.[24] These cases will be discussed in more detail below.

The Sixth Circuit’s companionless decision to stay aligned with the law in Matter of Castro-Tum creates discrepancy among the circuit courts and burdens the immigration court’s dockets with “low value” and pending application cases.[25] This, therefore, moves the focus away from high-priority cases where deportation is necessary and likely.[26] This blog will first discuss administrative closure’s development and case law, focusing on Matter of Avetisyan, Matter of W-Y-U-, Matter of Castro-Tum, Hernandez-Serrano v. Barr, Garcia-Deleon v. Garland, and Matter of Cruz-Valdez. It will then analyze the law as it stands today in the Sixth Circuit, and finally, it will call for the overturning of Hernandez-Serrano v. Barr.

The Development, Destruction, and Rebuilding of Administrative Closure

The use of administrative closure dates to the formation of the Executive Office for Immigration Review (“EOIR”) in 1983.[27] In 1988, Matter of Amico was the first BIA case to address the practice of administrative closure.[28] Administrative closure has since been developed and relied on heavily by immigration judges.[29] Immigration court records document that administrative closure was used to close out 376,439 cases from 1986 to July of 2020.[30] Of the 6,147,987 cases adjudicated , administrative closure was used in about 6.1% of them.[31]

Before 2012, immigration judges were prevented from granting administrative closure if either party objected, allowing for the Department of Homeland Security to have a “veto” power.[32] Matter of Avetisyan, a 2012 BIA decision changed this.[33] Matter of Avetisyan held that immigration judges have the authority to exercise their independent judgment to determine whether to administratively close a case, despite the objections of one of the parties.[34] The immigration board stated that the DHS has the sole authority to bring removal proceedings to the immigration court. Once it does so, the jurisdiction over the proceedings is placed with the immigration judge.[35] The immigration board determined that since immigration judges are the ones that bear the responsibility to adjudicate proceedings in accordance with the law, the immigration judge is entitled, if the facts so warrant, to defer or close the proceeding regardless of objections by one of the parties.[36] Matter of Avetisyan shifted the authority to administratively close a case entirely to immigration judges and the BIA.[37] Matter of Avetisyan also concluded that courts should weigh relevant factors when deciding whether to administratively close proceedings.[38] This includes but is not limited to:

(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. [39]

Matter of W-Y-U- elaborates upon these factors and clarifies Matter of Avetisyan.[40] In 2017, the BIA held in Matter of W-Y-U- that the primary consideration or factor when evaluating whether to administratively close proceedings is whether “the party opposing the administrative closure had provided a persuasive reason for the case to proceed and be resolved on the merits.”[41] By concluding this, the BIA essentially determined that the burden of proof regarding why proceedings should not be administratively closed lies with the party opposing the closure.[42] Importantly, the BIA also concluded that “in considering administrative closure, an immigration judge cannot review whether an alien falls within the DHS’s enforcement priorities or will actually be removed from the United States.”[43]

The precedent that was set forth in Matter of Avetisyan and Matter of W-Y-U- was the controlling legal standard regarding administrative closure until Matter of Castro-Tum.[44] In 2018, former Attorney General Jeff Sessions decided in Matter of Castro-Tum that immigration judges have no general authority to administratively close proceedings.[45] Sessions concluded that immigration judges exercise only the authority delegated by the Attorney General or by Congress through statute.[46] Sessions determined that the power to administratively close proceedings has not been delegated to immigration judges by Congress through statute.[47] The Immigration and Naturalization Act of 1952 (“INA”) states that the Attorney General “enjoys broad powers with respect to the administration and enforcement of [the INA itself] and all other laws relating to the immigration and naturalization of aliens.”[48] Sessions affirmed that he has the power to choose whether to delegate or to reserve the power to administratively close proceedings to immigration judges.[49] Sessions concluded that he nor any Attorney General has never delegated general authority to administratively close proceedings to immigration judges.[50] Sessions also determined that neither of the Department of Justice’s regulations at 8 C.F.R. §§ 1003.10(b) or 1003.1(d)(1)(ii) confers the general authority to grant administrative closure.[51] Therefore, Sessions concluded that immigration judges have no general authority to administratively close proceedings.[52]

Four federal courts of appeals – the Third, Fourth, Sixth, and Seventh Circuits – issued decisions regarding whether Matter of Castro-Tum was decided correctly.[53] Three of these courts of appeals – the Third, Fourth, and Seventh Circuits -rejected Matter of Castro-Tum relying on the plain language in the Department of Justices’ regulations at 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii).[54] In this rejection, the courts concluded that the language authorizing immigration judges to “take any action that is appropriate and necessary” naturally gives general authority to administratively close cases when appropriate.[55]

The Sixth Circuit was the only court of appeals to conclude that Matter of Castro-Tum was decided correctly.[56] In 2020, the Sixth Circuit Court of Appeals in Hernandez-Serrano v. Barr concluded and agreed with Matter of Castro-Tum.[57] The Sixth Circuit concluded that the power to administratively close proceedings was not expressly delegated to immigration courts, and therefore, the courts did not have the power to do so.[58] In December of 2020, after the Fourth and Seventh Court of Appeals issued their decisions rejecting Matter of Castro-Tum, the Department of Justice issued a rule that explicitly prohibited immigration judges and the BIA from administratively closing removal cases.[59] However, this rule was only in effect for three months before it was preliminarily enjoined nationwide by two federal courts who determined that the rule violated the Administrative Procedure Act.[60] The Administrative Procedure Act governs how federal administrative agencies make and adjudicate rules.[61]

The Law Today

A year later, in 2021, the Sixth Circuit Court of Appeals again looked at the legality of administrative closure with the context of provisional unlawful presence waiver issues or I-601 waivers.[62] Non-citizens who are not eligible to adjust their status in the United States must travel outside the United States and obtain an immigration visa.[63] Those who were unlawfully present in the United States must obtain a waiver to overcome their unlawful presence in the United States.[64] Non-citizens may not be in any sort of removal proceedings in order to qualify for an unlawful presence waive.[65] The Sixth Circuit Court of Appeals in Garcia-Deleon v. Garland concluded that INA Statutes 8 C.F.R. § 212.7(e)(4)(iii), in conjunction with 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii), creates an exception to Hernandez-Serrano v. Barr and delegates to immigration judges and BIA the authority to administratively close cases for the purpose of non-citizens to obtain provisional unlawful presence waivers.[66] The Sixth Circuit Court of Appeals deemed that administrative closure was “appropriate and necessary” when non-citizens in removal proceedings seeking permanent residency could not apply for a provisional unlawful presence waiver despite the authorizing regulation.[67]

Later, in 2021, Attorney General Merrick Garland issued Matter of Cruz-Valdez which overruled Matter of Castro-Tum in its entirety and reinstated administrative closure until the Department of Justice could reconsider the enjoined 2020 rule that expressly prohibited immigration judges and the BIA from administratively closing cases.[68] Garland relied on the fact that three out of the four courts of appeals have rejected Matter of Castro-Tum and that the enjoined codification of Matter of Castro-Tum failed to comply with the Administrative Procedure Act.[69] Matter of Cruz-Valdez restored administrative closure except when a court of appeals held otherwise, meaning that the Sixth Circuit Court of Appeals ruling in Hernandez-Serrano v. Barr is still binding precedent in the Sixth Circuit.[70] This reinstated Matter of Avetisyan and Matter of W-Y-U- as the governing case law regarding administrative closure unless held otherwise by a court of appeal.[71] In April of 2022, the Sixth Circuit Court of Appeals declined to vacate its original decision in Hernandez-Serrano v. Barr, making it the only United States Court of Appeals to still be in line with Matter of Castro-Tum.[72]

Call to Action

Matter of Castro-Tum was a short-sided decision that failed to understand the intricacy of immigration law and administrative law. It stripped power away from the BIA and the immigration judges, shifting the focus away from high-priority cases where deportation is necessary and likely.[73] Matter of Castro-Tum and the Sixth Circuit’s companionless decision in Hernandez-Serrano v. Barr create discrepancy among the circuit courts and burden the immigration court’s dockets with “low value” and pending application cases.[74] It is essential for the Sixth Circuit Court of Appeals to overturn Hernandez-Serrano v. Barr to come back in line with the other court of appeals, to help relieve the already overburden immigration docket, and to allow non-citizens to seek relief from removal outside the immigration court process, such as applying for asylum, temporary protected status, or in the case of children, apply for special immigrant juvenile status.[75]

Considering that the Sixth Circuit declined to vacate its judgment in Hernandez-Serrano v. Barr in favor of Matter of Cruz-Valdez in 2022, it seems unlikely that the Sixth Circuit will adjust its position in the near future.[76] To overcome this Sixth Circuit decision, the Department of Justice can issue a proposed new rule that would clarify or grant general authority to administratively close cases to immigration judges and the BIA.[77] In December of 2021, the Biden Administration’s regulatory agenda noted that the Department of Justice intended to issue a new proposed to do just that and therefore would restore administrative closure in the Sixth Circuit, however as of March of 2023, the rule has not been issued.[78] A Department of Justice order seems the most likely path to occur. While the circuit spilt could be appealed to the Supreme Court, the Court is unlikely to grant certiorari given the pending rule by the Department of Justice. Even if the circuit split was appealed to the Supreme Court, given the composition of the Court, it is highly unlikely that administrative closure would stand. Given the current composition of Congress it is unlikely that legislation clarifying and granting administrative closure to immigration judges would be passed.

Administrative closure is an essential tool in immigration cases.[79] It is relied upon by immigration judges and immigrants alike.[80] For immigrants fighting their cases, for the overwhelmed immigration judges, and for the system as a whole, it is imperative for either the Department of Justice to issue its rule clarifying the general authority for administrative closure, or for the Sixth Circuit to reinstate the general use of administrative closure.[81]

  1. Administrative Closure After “Matter of Cruz-Valdez” Practice Advisory, American Civilian Liberties Union Foundation and the American Immigration Council (Jan. 18. 2022), https://www.aclu.org/sites/default/files/ field_document/2019.10.22_castro-tum_pa_w_zuniga_romero_update_-_final.pdf. ↑
  2. Id. ↑
  3. Administrative Closure, Department of Justice (Nov. 22, 2021), https://www.justice.gov/eoir/book/file/1450351 /download. ↑
  4. M. O’Leary, Chief Immigration Judge, EOIR, Re: Operating Policies and Procedures Memorandum 15-01: Hearing Procedures for Cases Covered by New DHS Priorities and Initiatives at 3 (Apr. 6, 2015). ↑
  5. Christie Thompson, The Department of Justice Decision that Could Mean Thousands More Deportations, The Marshall Project (Jan. 1, 2018), https://www.themarshallproject.org/2018/01/09/the-doj-decision-that-could-mean-thousands-more-deportations. ↑
  6. Id. ↑
  7. Id. ↑
  8. The Life and Death of Administrative Closure, Syracuse University TRAC Immigration (Sept. 10, 2020), https://trac.syr.edu/immigration/reports/623/; American Civilian Liberties Union, supra note 1. ↑
  9. Syracuse University TRAC Immigration supra note 8; American Civilian Liberties Union, supra note 1. ↑
  10. Syracuse University TRAC Immigration supra note 8. ↑
  11. Id. ↑
  12. Id. ↑
  13. Eileen Sullivan, ICE lawyer Directed to Clear Low Priority Immigration Cases, The New York Times (April 4, 2022), https://www.nytimes.com/2022/04/04/us/politics/ice-immigration-cases.html. ↑
  14. Id. ↑
  15. American Civilian Liberties Union, supra note 1. ↑
  16. Id. ↑
  17. Id. ↑
  18. In re Castro-Tum, 27 I.&N. Dec. 271, 271 (B.I.A. 2018). ↑
  19. Hernandez-Serrano v. Barr, 981 F.3d 459, 446 (6th Cir. 2020). ↑
  20. Id. at 329.

    ↑

  21. Garcia-Deleon v. Garland, 999 F3.d 986, 993 (6th Cir. 2021). ↑
  22. In re Cruz-Valdez, 28 I.&N. Dec. 326, 328 (B.I.A. 2021). ↑
  23. Id.; American Civilian Liberties Union, supra note 1. ↑
  24. American Civilian Liberties Union, supra note 1. ↑
  25. Syracuse University TRAC Immigration, supra note 8. ↑
  26. Id. ↑
  27. Syracuse University TRAC Immigration, supra note 8. ↑
  28. In re Cruz-Valdez, 28 I.&N. Dec. at 326 (citing In re Amico, 19 I.&N. Dec 652, 653 (B.I.A. 1988)). ↑
  29. American Civilian Liberties Union, supra note 1. ↑
  30. Syracuse University TRAC Immigration, supra note 8. ↑
  31. Id. ↑
  32. American Civilian Liberties Union, supra note 1. ↑
  33. In re Avetisyan, 25 I.&N. Dec. 688, 692 (B.I.A. 2012). ↑
  34. Id. ↑
  35. Id. at 691. ↑
  36. Id. ↑
  37. Id. at 692; American Civilian Liberties Union, supra note 1. ↑
  38. In re Avetisyan, 25 I.&N. Dec. at 696. ↑
  39. Id. ↑
  40. In Re W-Y-U-, 27 I. & N. Dec. 17, 20 (BIA 2017). ↑
  41. Id. ↑
  42. Id. ↑
  43. Id. at 19. ↑
  44. In re Castro-Tum, 27 I. & N. Dec. 271, 271 (BIA 2018). ↑
  45. Id. ↑
  46. Id. ↑
  47. Id. at 274. ↑
  48. Id. at 281. ↑
  49. Id. ↑
  50. Id. ↑
  51. Id. at 285. ↑
  52. Id. at 294. ↑
  53. American Civilian Liberties Union, supra note 1. ↑
  54. Id. ↑
  55. Id.; see Zuniga Romero v. Barr, 937 F.3d 282, 297 (4th Cir. 2019); Meza Morales v. Barr, 973 F.3d. 656, 667 (7th Cir. 2020); Arcos Sanchez v. Att’y Gen. U.S. of Am., 997 F.3d 113, 120-22 (3d Cir. 2021). ↑
  56. American Civilian Liberties Union, supra note 1. ↑
  57. Hernandez-Serrano v. Bar, 981 F3.d 459, 459 (6th Cir. 2020). ↑
  58. Id. ↑
  59. American Civilian Liberties Union, supra note 1. ↑
  60. Emma Winger, Attorney General Garland Brings Back Administrative Closure for Immigration Judges, Immigration Impact (Jul 16, 2021), https://immigrationimpact.com/2021/07/16/garland-brings-back-administrative-closure/. ↑
  61. Administrative Procedure Act, Cornell Law School, https://www.law.cornell.edu/wex/administrative_procedure_act. ↑
  62. Provisional Unlawful Presence Waivers, United States Citizenship and Immigration Services (Jan. 5, 2018), https://www.uscis.gov/family/family-of-us-citizens/provisional-unlawful-presence-waivers. ↑
  63. Id. ↑
  64. Id. ↑
  65. Id. ↑
  66. Garcia-Deleon v. Garland,999 F.3d 986, 986 (6th Cir. 2021). ↑
  67. Id. ↑
  68. In re Cruz-Valdez, 28 I.&N. Dec. 326, 328 (B.I.A. 2021). ↑
  69. Id. ↑
  70. Id. ↑
  71. Id.; American Civilian Liberties Union, supra note 1. ↑
  72. American Civilian Liberties Union, supra note 1. ↑
  73. Id;. Syracuse University TRAC Immigration, supra note 8. ↑
  74. Syracuse University TRAC Immigration, supra note 8. ↑
  75. American Civilian Liberties Union, supra note 1. ↑
  76. Id. ↑
  77. Id. ↑
  78. Id. ↑
  79. Id. ↑
  80. Id. ↑
  81. American Civilian Liberties Union, supra note 1. ↑

AUTHOR

Abigail Castle
Associate Member, Immgration and Human Rights Law Review

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