Attorney General Places New Limits on Judges’ Authority

Safe Passage, May 18, 2018

Yesterday, Attorney General Sessions issued his decision in a case involving an unaccompanied minor who failed to attend his removal hearing. In Matter of Castro-Tum, 27 I & N Dec. 271 (May 17, 2018), the Attorney General ruled that an Immigration Judge has no regulatory or legal authority to grant “administrative closure.” Administrative closure does not dismiss the case, but rather moves it to a suspended status. For the court, it allowed the judge to count the case as finished on his or her docket. For the party – either DHS or the responding individual – a motion could later be filed to recalendar the case, should new developments suggest that the case could be resolved.  For example, DHS sometimes requested administrative closure if they determined that they wanted to grant prosecutorial discretion (a right to live here but not a grant of legal status). Safe Passage Project regularly sought administrative closure for young people who were granted special immigrant juvenile findings in immigration court, but when the visa petition for Special Immigrant Juvenile Status (form I-360) would still be pending for many months before the USCIS.

It was already quite distressing that the Attorney General took this case as the focus of his decision to visit the authority of immigration judges to grant “administrative closure,” because the young person was pro se, and the case reflected a very unusual use of administrative closure. There were 12 amici briefs filed in this case, and we are grateful to the law firm of Simpson Thacher and especially to Sara Clingan, who was the primary author on the brief.  It does appear that the Attorney General evaluated the thoughtful arguments presented in the brief regarding the administrative law problems inherent in eliminating Administrative Closure without engaging in procedural compliance with the APA to modify the practice through rulemaking. He does discuss the power of the Attorney General to reverse the BIA and to control the operations of the individual immigration judges. With this case, he also vacates all the other BIA decisions that allowed judges to grant administrative closure over the objections of DHS.

The only good news in the case is that the Attorney General did not retroactively rescind the administrative closure of prior cases. He will, however, allow the cases to be re-calendared upon motion of the parties. If DHS decides to reactivate all of these cases, it is likely to swamp the immigration courts. But the Attorney General does not (or should not) control the decisions of the DHS, and it is too early to tell what their responses will be.

One of the disturbing issues presented in this case that was not properly identified by the Attorney General as under review, is the definition of who is an “unaccompanied alien child” (UC).  In a footnote, the Attorney General asserts that turning 18 ends the designation of UC protection, and that an issued legal guardianship by a brother-in-law (the young person’s sponsor once out of ORR custody) might similarly end the designation. “It is unclear whether the respondent’s brother-in-law was his legal guardian, such that the respondent would have ceased to qualify as an unaccompanied alien when his brother-in-law assumed custody on August 20, 2014. At a minimum, however, the respondent ceased to qualify as an unaccompanied alien child on January 10, 2015, his eighteenth birthday, two days after his first hearing date.”

This footnote is particularly concerning, and we should prepare for additional arguments – both by the USCIS Asylum Office and now the DHS – that a young person is no longer entitled to the UC protection which is important in seeking jurisdiction before the Asylum Office to hear claims.

As a long time reader of BIA and Attorney General decisions, this particular case is a departure from prior cases in tone. The Attorney General and his delegates want to specifically reject several 9th Circuit Court of Appeals cases that had relied in part on administrative closure to expand due process protections for people in removal. While the agency usually follows the doctrine of nonacquiescence and does not apply a single circuit law across the country, the Attorney General notes that he has the authority to force the 9th Circuit to reexamine its decisions as this is the final agency pronouncement on the role of administrative closure. Now the immigration judge will have to use continuances, which will be difficult as the management of the court – at the request of the Attorney General – has also instituted performance measures that punish judges who grant numerous continuances.

There are four other significant cases that were certified to the Attorney General.  We did not independently prepare a brief, but we did join in our nonprofit capacity (and I joined some in my law professor capacity).  These cases could also have deep and significant impact on our work. The Attorney General is also challenging the authority to grant continuances – the only option we have if DHS has not ruled on a child’s visa petition for status.  He is also reviewing the case law on people who are victims of private crime, e.g., domestic abuse, as qualifying for asylum. Yesterday, Jane Fonda and Professor Karen Musalo, one of the nation’s leading advocates for women in the asylum field had an Op-Ed in the New York Times discussing that issue.

Lenni Benson is the Founder and Senior Advisor on Policy and Law at Safe Passage Project. She is also Professor of Law at New York Law School.