The Attorney General Declared that Immigration Judges do not have Authority to Administratively Close Removal Proceedings.

Jersey City, New Jersey – Among the many headline-seeking anti-immigrant actions during the Trump administration was the Attorney General’s decision in Matter of Castro-Tum, in which the Attorney General declared that immigration judges do not have authority to administratively close removal proceedings. What do I mean by headline-seeking anti-immigrant actions? I mean actions and decisions that in a headline or sound bite give the impression to be anti-immigrant, as the administration wanted to be, but that in reality may have the opposite effect or at least entirely unanticipated consequences.

The decision to strip immigration judges of the tool of administrative closure is one such action. Administrative closure allows a judge to place a case on hold. It does not conclude removal proceedings, it just puts them on hold while awaiting progress outside the immigration court, before coming back to immigration court. There are significant benefits of administrative closure to all parties involved, including the court, the Department of Homeland Security and the non-citizens facing removal. Specifically, it avoids everyone involved having to waste time scheduling, postponing and rescheduling hearings when it would be impossible to conclude the proceedings. For example, when a non-citizen is placed in removal proceedings for failing to file to remove the conditions of residence when his/her two-year conditional permanent residence expires, that person may file the petition while in removal proceedings. While that petition is pending before USCIS, an immigration judge cannot conclude the removal proceedings. Administrative closure keeps the case off the court calendar until the petition before USCIS is decided. It’s simply more efficient.

By preventing immigration judges from administratively closing cases, the Attorney General creates more work for everyone – judges, court staff, the Department of Homeland Security, and non-citizens – and requires everyone to waste time and resources appearing before the court when nothing can happen in court. The effect is the opposite of what the Attorney General purportedly wanted to achieve, which was a more efficient deportation machine.

So far, two Circuit courts, the Seventh and the Fourth, have overturned the Castro-Tum decision and authorized immigration judges in those circuits to administratively close cases when appropriate. One Circuit court, the Sixth Circuit has affirmed the Castro-Tum decision. The issue is currently pending before the Third Circuit and likely in others, as well. Ultimately, this critical aspect of court docket management that affects hundreds of thousands of non-citizens, judges, court staff, and government attorneys and staff will likely be resolved by the Supreme Court because there is a split in the Circuits. It is also possible the Biden administration will rescind the Castro-Tum decision, but unless Congress passes a law formalizing administrative closure, a future Attorney General could reinstate it.

Procedural complications are one of the most frustrating aspects of the justice system and being an immigration lawyer. That frustration is compounded when the government imposes nonsensical new rules motivated by bigotry rather than any actual courtroom or legal purpose. Hopefully, a new administration working with a new Congress, or the Supreme Court when given the opportunity, will remedy this easily fixed problem that never should have existed in the first place.