The Last Few Months: Immigration Court

This past Saturday, I had the honor of presenting on Immigration Law Updates for the State Bar of Georgia. When I look at all the policy changes, memos, and court decisions that impact our work and our clients’ lives, it’s really incredible to see how the Trump Administration is hurting every area of immigration law. Sometimes, it’s hard to even figure out what’s true and being implemented and what’s a rumor or maybe just a possible change. I’d like to give a super-quick overview of what we’ve seen this summer, knowing that each topic below could be an entire paper on its own.

We’ve had three decisions come out this summer that limit how an Immigration Judge (IJ) can control their own docket (calendar). First, we had the Attorney General rule that cases should not, generally, be administratively closed. Matter of Castro-Tum. What does that mean? Administrative closure was like putting a removal case in a coma – the person was still technically in removal proceedings, but the file sat on a shelf and there was no future hearing notice set. However, if the person got in trouble, a new hearing date could be easily set and removal proceedings would continue. The inability of IJs to administratively close a case most directly impacts people who want to apply for an I-601A provisional waiver. USCIS won’t look at the waiver if someone has an active removal case. So for those people in proceedings who have a way to consular process for an immigrant visa once the waiver is approved -this mechanism is gone. Most people in this position now have to take a removal order or ask for voluntary departure, lengthening the time that the foreign national has to be outside of the country and away from family.

In August, the Attorney General took away the ability for IJs to issues continuances in most circumstances. Matter of L-A-B-R-. A continuance meant that the IJ didn’t make a decision on the case, but allowed the foreign national to come back at future time – months or years in the future. This is most important for cases where an application is pending with USCIS but it may take some time to get a decision. For example, if the person applied for a U visa as a victim of crime, it could take four years to get an approval. In the past, an IJ could continue a case to let USCIS make a decision. If the decision was favorable, proceedings could be terminated. If it wasn’t favorable, then proceedings would continue. Now, IJs are ordering people removed who have a case pending with USCIS. Yes, there may be ways to fight to bring someone back, but bringing someone back into the US is much more difficult, time-consuming and expensive than if they had simply been allowed to stay here while USCIS worked on the case.

Most recently, in September, the Attorney General severely limited IJs ability to terminate a removal case. Matter of S-O-G- and F-D-B-. He said termination is only proper if 1) ICE asks for termination; 2) ICE doesn’t prove the person is removable from the United States and 3) If the applicant is eligible for Naturalization, has a Naturalization application pending, and there are compelling circumstances. This again takes away the ability of IJs to close out cases when USCIS may be taking an extremely long time to adjudicate a petition.

Finally, stating on October 1, IJs will be held to very strict standards by their boss – the Attorney General. IJs will be required to complete 700 cases a year. The current average is 678 cases a year per IJ, but why put a quota on justice? Some cases take longer – asylum hearings can be between one hour and upwards of eight hours. If an IJ is methodical, provides ample opportunity for testimony and evidence submission, a hearing will take longer – and then factor in interpretations and you can see where the time goes. The IJ may be more worried about keeping his/her job than in allowing an asylum applicant to fully tell their story.

All of this goes to show why we need independent immigration courts. Judges who aren’t protected with tenure, who can’t control their own cases and courtrooms, and who are at the whim of a changing executive branch (their priorities change depend on who the President is) …well, it’s not justice. It’s a deportation machine where the judge – the supposed impartial adjudicator – is really just another employee of the administration.

Next up – changes at USCIS. There are definitely a few…public charge, NTAs, RFEs, oh my!

– Tracie