The Executive Office for Immigration Review (EOIR) issued a memorandum last month providing guidance to immigration judges about administrative closure—a critical tool for docket management and addressing an ever-growing immigration court backlog.
EOIR Director David Neal issued the memo in response to the recent Attorney General decision in Matter of Cruz-Valdez, which ushered in the return of administrative closure after the Trump administration’s attempts to curtail it.
“Administrative closure is a longstanding and valuable, tool for EOIR adjudicators” that allows immigration judges to pause removal proceedings and temporarily remove a case from the court’s docket.
Typically, cases are administratively closed so that a person can pursue a form of relief that is only available through U.S. Citizenship and Immigration Services, such as visas for survivors of certain crimes and children who have been abused, abandoned, or neglected. Administrative closure can also be used as a form of prosecutorial discretion, indefinitely pausing removal proceedings in cases where the person is not an immigration enforcement priority.
Citing Board of Immigration Appeals case law, the new memo reaffirms immigration judges’ authority to administratively close cases and encourages them to resolve questions of administrative closure before immigration court hearings “where at all possible.”
The memo encourages immigration judges to send scheduling orders to the parties before a hearing, asking their positions on administrative closure. If the parties agree to administrative closure ahead of time, the judge can then order the case administratively closed without the parties having to appear in court for the hearing. This outcome clears a non-priority case from the judge’s docket, helping to increase the efficiency of the overburdened immigration court system.
In cases where administrative closure cannot be decided ahead of a hearing, the memo states that the immigration judge should ask the Department of Homeland Security (DHS) attorney on the record whether the noncitizen is an enforcement priority and if not, whether DHS intends to exercise prosecutorial discretion in the case. In this exchange, the immigration judge should also ask the parties whether they want proceedings to be administratively closed.
The EOIR director recommends that if the parties agree, “the request [for administrative closure] should generally be granted.”
The memo also provides additional examples of situations where administrative closure is appropriate, such as when a noncitizen has Temporary Protected Status or wishes to pursue relief that is not available before the immigration court. The memo is clear that the list is non-exhaustive and administrative closure may be appropriate in other situations.
Administrative closure is not a new tool for immigration judges, but the 2018 Attorney General Sessions decision in Matter of Castro Tum severely restricted judges’ ability to administratively close most cases. Several federal courts of appeals rejected Matter of Castro Tum, creating a circuit split, but Castro Tum remained in place until this past July, when Attorney General Garland issued his decision in Matter of Cruz-Valdez. The Cruz-Valdez decision overturns Matter of Castro Tum, noting that it “departed from long-standing practice” by limiting administrative closure.
The new memo is another step forward in undoing the prior administration’s work to hamstring the discretion of immigration judges to manage their dockets. The public will have a chance to comment on the issue of administrative closure when DOJ issues its anticipated rulemaking on administrative closure, which the Attorney General announced was forthcoming in the Cruz-Velez decision. Rulemaking could be a more permanent step in ensuring that administrative closure remains available to immigration judges should a future administration threaten it once again.
FILED UNDER: Administrative Closure, EOIR, immigration judges