Last week, the Attorney General released a decision saying that Immigration Judges and the Board of Immigration Appeals do not have the authority to administratively close a case. What is administrative closure and why is the end of it a big deal?
Administrative closure was like putting a case in a coma. The respondent was still technically in removal (“deportation”) proceedings, but there was to future hearing date and no deportation order. At any time, either the respondent or ICE could ask for the case to be re-calendared and brought back to life.
There are many ways that administrative closure can work, but in our practice, administrative closure worked in two different ways. First, it allowed the court case to sit on a back shelf while we waited for USCIS to make a decision on an application. USCIS isn’t part of the immigration court system, nor is it part of ICE. Yet, USCIS has jurisdiction to decide applications that the court does not have the power to decide. For example, a VAWA application can only be decided by USCIS. If a domestic violence victim had an I-360 filed and was placed in deportation proceedings, the court could administratively close the deportation case to allow USCIS time to adjudicate her claim. VAWA petitions are taking over a year for USCIS to determine, so not having the respondent come back every few months was a way the judge could control his or her calendar and be efficient.
A second way we’ve used administrative closure has been for the adjudication for I-601A provisional waivers. Much like the example above, only USCIS has the ability to adjudicate these petitions and they’re also at about a one-year processing time. However, unlike VAWA petitions, I-601As cannot be filed if someone is inactive removal proceedings. For the past several years, attorneys would ask the judge to administratively close proceedings so USCIS could review the I-601A. If it was approved, we would then ask for the case to be terminated so the respondent could travel back home to obtain an immigrant visa. If the waiver was denied, then ICE could continue the removal case. Now, without this tool, we all wait and wonder how USCIS will work within their policies to work with potential I-601A applicants who are in removal proceedings and the judge is unable to administratively close proceedings to even allow the application to be filed.
The Attorney General’s decision does not mandate that the 350,000 cases that have been administratively closed to be put back on the docket, but they could be added back at any time. I can’t imagine how bad it will be if those cases get added to a court system that is already bursting at the seams with some cases being scheduled out for five years from now.
The Attorney General has robbed people who are looking to obtain status “the right way” of the opportunity to do just that. Immigration Judges will now have to decide if they will order someone removed who has a case pending with USCIS. This is a gross violation of due process and a miscarriage of justice – why should the respondent be punished because USCIS takes months, sometimes even years, to adjudicate a case. This is just another example of how the current administration is doing everything possible to fight against legal immigration.