A Bad Summer for Immigration Judges: The Elimination of Administrative Closure and Changes to the Procedure for Continuances

Ian McManus, Associate Member, University of Cincinnati Law Review

It has been a clear priority of the current presidential administration to increase immigration enforcement and the overall numbers of deportations.[1] Attorney General Jeff Sessions had been instrumental in achieving this goal. Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), the Attorney General has the authority to refer immigration cases to himself for the issuance of binding precedential decisions for immigration courts.[2] In an effort to increase judicial efficiency, Sessions issued two decisions this summer, Matter of Castro-Tum and Matter of L-A-B-R- et al., which eliminated the ability of immigration judges to administratively close cases and limited their ability to grant continuances.[3] Unfortunately, these decisions are unlikely to result in a more efficient legal system and will only serve to further strain the already flooded immigration courts.

Impact of Matter of Castro-Tum et. al

The basic holding of the Attorney General’s decision in Castro-Tum is that immigration judges and the Board of Immigration Appeals (BIA) do not have any inherent authority to issue administrative closures.[4] Administrative closure is a tool that Immigration Judges and the BIA used to temporarily remove a case from the docket.[5] Once closed, a case could be reopened on a motion by one of the parties arguing for recalendaring.[6]  Administrative closure was granted as long as the party opposing closure could not succeed in arguing the case should be resolved on the merits.[7] In eliminating administrative closures, the Attorney General argues that the lack of any regulation or provision in the Immigration and Nationality Act (INA) specifically granting immigration judges authority to order administrative closures means that judges cannot do so.[8] In support of his argument, Sessions points out that Immigration Judges derive the totality of their powers and duties from the INA and the regulations of the Attorney General.[9]

Nonetheless, Sessions has the authority to grant Immigration Judges and the BIA the power to administratively close cases; Sessions should have given the Immigration Judges that power. Session’s policy rationale for refusing to grant this authority is based on a preference for final orders or temporary continuances and criticism of the backlog of cases that had been administratively closed.[10] However, the result of his decision is the eventual recalendaring of 355,835 previously closed cases to further flood the already full dockets of immigration judges nationwide.[11] While this process will not be automatic, with cases being closed until The Department of Homeland Security (DHS) petition their reopening, he states that he intends to swiftly return many to the docket.[12] Since the nature of administrative closure means that these cases were low priority or seemingly unnecessary to resolve, the resolution of these cases will provide little benefit in comparison to the potentially massive cost of judicial resources necessary to resolve them. Additionally, the lack of an ability to set aside low priority cases will strain immigration judge’s as they strive to issue correct and timely decisions on more pressing cases. Instead of increasing efficiency, Sessions’s holding is likely to drain time and resources from the immigration courts for little benefit.

Impact of Matter of L-A-B-R-

            Although Sessions specifically mentions continuances as a proper alternative to administrative closure in Castro-Tum, his holding in L-A-B-R- complicates their use.[14]

In the Immigration setting, continuances are typically used to allow respondent alien’s more time to pursue collateral relief, such as visa petitions, that would prevent removal.[15] In contrast to administrative closure, there is a direct statutory basis in the INA for the authority of Immigration Judges to issue continuances in good faith.[16] While this statutory authority prevents the elimination of continuances as an administrative tool, Sessions was able to regulate their use through the L-A-B-R- decision. Specifically, Sessions limited the ability of immigration judges to grant continuances while waiting for collateral relief by requiring the use of a new two-factor test.[17] Under this test, an immigration judge must look at (1) the likelihood that the collateral relief will be granted, and (2) whether the relief will have a material impact on the final decision for removal.[18] Additionally, the decision created a requirement that judges write decisions explaining any granted continuance.[19] Previously, the BIA’s precedent for continuances only required a simple inquiry into the ultimate likelihood that the respondent succeeds in adjusting his or her immigration status with no writing requirement.[20] In practice, the decision to grant a continuance was typically a matter of judicial discretion.[21]

As in Castro-Tum, Sessions justifies the decision by arguing that limiting continuances will result in more trials reaching final results and therefore increase the efficiency of the immigration courts.[22] However, the addition of the writing requirement will ultimately add excessive and unnecessary paperwork for immigration judges.[23] Given that some judges receive more than ten motions for continuances per day, this requirement is likely to substantially increase their workloads.[24] Notably, the decision does not expressly require a written decision for a denial of a continuance. This may create an incentive for judges to deny motions more often and hold the hearing as scheduled. However, since newly established case quotas have required hearings to be double-booked, many continuances will have to be granted.[25] Additionally, since many continuances will still pass this test, many will be granted despite the workload concerns. Therefore, any efficiency gained by the decrease in the granting of continuances would be outweighed by the inefficiency of imposing large amounts of unnecessary paperwork on immigration judges.

Conclusion

            Ultimately, the Attorney General’s decisions in Castro-Tum and L-A-B-R- are likely to have unintended consequences. Given that immigration law necessarily deals with serious, at times life or death, issues, it is important to allow immigration judges the time and tools to efficiently and carefully adjudicate cases.[26] Unfortunately, the influx of low priority cases onto the docket resulting from Castro-Tum and the increased paperwork resulting from L-A-B-R- will put unnecessary pressure on immigration judges that will increase the risk of judicial error. The lack of administrative closure will also make prioritizing important incoming cases more difficult, further increasing the risk of error. Any improvement in the rate of case finalization is likely to be marginal given the increasingly unmanageable workload on judges. Therefore, the likely marginal benefit of these decisions is outweighed by the unnecessary cost in judicial time and resources, increased risk of incorrect decisions, and decreased ability of immigration judges to manage their dockets.

[1] See Nick Miroff, Trump Administration, Seeking to Speed Deportations, to Impose Quotas on Immigration Judges, The Washington Post, https://www.washingtonpost.com/world/national-security/trump-administration-seeking-to-speed-deportations-to-impose-quotas-on-immigration-judges/2018/04/02/a282d650-36bb-11e8-b57c-9445cc4dfa5e_story.html?noredirect=on&utm_term=.cdeb30c0e71e (last visited September 1, 2018).

[2] 8 C.F.R. § 1003.1(h)(1)(i)

[3] Matter of Castro-Tum, 27 I. & N. Dec. 271 (BIA 2018); Matter of L-A-B-R- et al., 27 I. & N. Dec. 405 (BIA 2018).

[4] Matter of Castro-Tum at 271.

[5] Matter of W-Y-U-, 27 I. & N. Dec. 17 (BIA 2017).

[6] Id at 18.

[7] Id. at 20.

[8] Matter of Castro-Tum at 273.

[9] Id. at 282.

[10] Id. at 291.

[11] Id. at 292.

[12] Id.

[13] Andrew Denney, Sessions Curbs Immigration Judges’ Power to Close Cases, New York Law Journal., https://www.law.com/newyorklawjournal/2018/05/22/sessions-curbs-immigration-judges-power-to-close-cases/ (last visited September 1, 2018).

[14] Matter of Castro-Tum at 291; Matter of L-A-B-R- et al. at 412.

[15] Matter of L-A-B-R­- et al. at 405.

[16] 8 C.F.R. § 1003.29

[17] Matter of L-A-B-R- et al. at 43.

[18] Id.

[19] Id. at 418.

[20] Id. at 408.

[21] Nicole Narea, Attys Decry Sessions’ New Burdens On Immigration Judges, Law360 (Aug 17, 2018), https://advance.lexis.com/api/permalink/edefba6a-bba1-430b-8fe6-77723b934cee/?context=1000516 (last visited September 1, 2018).

[22] Matter of L-A-B-R- at 411.

[23] Narea, supra note 20.

[24] Id.

[25] Id.

[26] Id.