In a disappointing development, last week Attorney General Jeff Sessions issued a decision that eliminates the ability of immigration judges to administrative close immigration cases. In practice, this means that immigrants, especially children, face a greater chance of deportation despite being diligent in fighting their case.
For example, a child who is eligible for a Special Immigrant Juvenile Status visa and associated green card and who has taken all of the steps necessary to obtain her green card, could be deported simply because DHS’ backlog on green card approvals delays her case beyond what a DOJ immigration judge can allow. Through no fault of her own, she will be the victim of regulatory bureaucracy.
The following is a more detailed breakdown of what the decision in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) means to immigrants and their attorneys (case download). If you have a pro bono case of this type, please reach out to your CAIR Coalition mentor to strategize in advance of your client’s next hearing.
What is administrative closure?
Administrative closure is a procedural mechanism that allows the Immigration Court or Board of Immigration Appeals (BIA) to take a case off the active docket. This is typically done in cases where an event outside the control of the parties is in process but may take an indeterminate amount of time to be completed. For example, U visa applicants currently face a wait time of over 10 years. Many immigration judges administratively close to allow the visa process to play out, to void wasting court resources, and to not punish an applicant for wait times out of their control.
What did the law say before Castro-Tum?
Before Castro-Tum, the BIA caselaw allowed immigration judges to administratively close a case based on a number of elements including the length of the closure, the party’s diligence, and if there was a persuasive reason for the case to proceed and be resolved on the merits.
How did we arrive at the decision Castro-Tum?
Under federal immigration law, the attorney general can refer to himself on appeal any decision of any immigration judge or the Board of Immigration Appeals. This mean the attorney general can unilaterally overrule any case below. In Castro-Tum, the attorney general did just this on a case centered on a child with administrative closure issued by an immigration judge.
What does the Castro-Tum say?
Immigration Judges and the BIA do not have the authority to suspend immigration proceedings through administrative closure. Immigration judges may only administratively close a case where previous regulation or legal settlement expressly authorizes admin closure. The appropriate mechanism for the court to use when "pausing" a case is a continuance not administrative closure.
What does the decision in Castro-Tum mean?
The attorney general’s decision means that immigrants who have certain visa applications that have significant delays in processing will have to request lengthy continuances in order to allow those applications to go forward. Most notable, this includes U Visa applicants, T visa applicants, and children with approved SIJS visas but not green cards. Whether immigration judges will (or can) grant lengthy delays will determine if the person is deported prior to their visa being processed.
The government will argue, as we have seen of late, that these types of defenses to deportation do not justify lengthy continuances and that the immigrant should instead be deported if there are no other “speedier” defenses available. The government’s arguments rest on the spurious claims that T and U visas can be waited for in the immigrant’s home country or that a child’s green card application is too speculative to form a basis for a continuance.
Is there any good news?
No…but, it is also worth noting that this opinion does not have the effect of retroactively recalendaring all administratively closed cases. The cases that are currently closed will remain closed unless DHS or the respondent requests the case be re-calendared. It remains to be seen what approach DHS will take to recalendaring cases.