Over the course of the past few years, we have seen a number of limitations to both lawful and unlawful immigration. Some of these policy changes, such as The Muslim Ban, the cancellation of the Deferred Action for Childhood Arrivals (DACA) program, and the Zero-Tolerance Policy, garnered extensive media coverage, while others received only limited attention. One of the policy changes from the latter category is the elimination of “administrative closures.”
In 2018, during a time when the general tenor of the debate on immigration had significantly shifted, then-Attorney General Sessions issued a decision in Matter of Castro-Tum that eliminated the three decade-long use of administrative closures in immigration proceedings. In this decision, he decreed that “neither immigration judges nor the Board of Immigration Appeals (BIA) have the general authority to suspend indefinitely immigration proceedings by administrative closure.” Matter of Castro-Tum, 47 I&N Dec. 271, 271 (A.G. 2018).
Administrative closure is a “docket-management mechanism that IJs and the BIA used for more than three decades to pause removal proceedings in certain cases.” When employed, IJs and BIA pause proceedings, i.e., removal proceedings, remove the case from their active docket, and schedule no further hearings for the respondents/noncitizens. Its elimination undermined the authority of immigration judges, due process for thousands of noncitizens, and drastically increased the case backlog in immigration courts.
IJs and the BIA employed administrative closures in various ways. For example, through its use, they were able to temporarily suspend lower-priority cases to focus on high-priority ones. As such, they were able to clear their active dockets from less urgent removal cases to use their limited resources to adjudicate higher priority ones. The process of administrative closures served as a helpful tool for IJs and the BIA to manage the large volume of their cases and ease the immigration court backlog. Its elimination, however, undermined the independence of immigration judges to manage their dockets, decreased efficiency in adjudicating cases, and increased the growing backlog in immigration courts over the last three years.
Administrative closure did not only aid the functioning of immigration court processes and assisted IJs and the BIA to manage their caseload; it also benefited noncitizens, mostly those in removal proceedings, ensuring due process and fundamental fairness in immigration courts. Its elimination, in 2018, impacted the lives of thousands of noncitizens, particularly those who hoped that their removal case would be placed on hold while their immigration applications/petitions, i.e. family, VAWA, U or T visa petitions, or I-601A provisional waivers, would be pending for adjudication for months or years before another governmental body.
As such, IJs used administrative closures to await the outcome of a noncitizen’s application, most often with USCIS, to see if they met other legal standards to remain lawfully in the U.S. In the event that a noncitizen’s application before USCIS was approved, the approval provided legal grounds to terminate their removal proceedings. For example, before the elimination of administrative closures, many IJs would routinely employ administrative closure to allow noncitizen in removal proceeding to seek an I-601A provisional waiver with USCIS to waive their unlawful presence ground of inadmissibility. Yearly, there are thousands of noncitizens in removal proceedings eligible for this type of waiver and USCIS maintains a high approval rate of them (approx. 95%). In n sum, through administrative closures, noncitizens with pending applications/petitions/waivers were able to have their removal case put on hold until their immigration application in front of USCIS was decided. In so doing, thousands of noncitizens were able to avoid deportation and pursue other forms of immigration relief.
On July 15, 2021, Attorney General Merrick Garland issued a decision in Matter of Cruz-Valdez overruling Castro-Tum, and thereby fully reinstated administrative closures. Matter of Cruz-Valdez “involved the case of a Mexican national whose motion to administratively close his deportation case so he could seek an unlawful presence waiver, was denied due to Castro-Tum. AG Garland reversed that decision and remanded the case for further proceedings.” Garland further instructed immigration judges and the BIA to use the standard adopted in the 2012 case Matter of Avetisyan to decide whether administrative closure is appropriate. Matter of Avetisyan requires judges to consider the likelihood that a respondent will succeed in immigration proceedings and the anticipated duration of the closure, among other factors.
Moving forward, AG Garland’s decision to withdraw Castro-Tum and to reinstate administrative closures will help to relieve the backlogged docket in immigration courts, enhance judicial efficiency, and facilitate the adjudication of removal cases that require the resolution of applications before USCIS, as discussed above.
