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Proposed DOJ Regulation Would End Administrative Closure

| Aug 26, 2020 | Immigration News, Removal Defense |

Cases for removal are heard by immigration judges within the Executive Office for Immigration Review (EOIR), with appeals of those decisions going to the Board of Immigration Appeals (BIA).  A recent proposal to change federal regulations governing the EOIR and BIA would alter the procedure for these cases, potentially affecting individuals defending against removal.

Proposed alterations to the law (8 CFR §§ 1003, 1240) include several reforms, mainly aimed at clarifying who has authority and at reducing the caseload of immigration courts.  One such change is eliminating the ability of an immigration judge or the BIA to administratively close a case—that is, to decline to hear it at that time, even over the objection of one or both parties.

Historically, both immigration judges and the BIA have been able to use administrative closure to manage caseloads by choosing to make certain cases inactive.  Administrative closure does not permanently close a case, but can allow both courts and the BIA to hear cases that are more pressing, all while declining to hear cases in which the party who may be removed can avoid removal (or at least a removal case) through other means—even permanently.

The first change to administrative removal came in the Attorney General’s decision in the Castro-Tum case, which denied that immigration judges and the BIA have authority to use administrative closure, though the effect of this decision remains unclear in federal appeals.  As a result, the proposed regulations seek to end debate and conclusively stop administrative closure.

Due to the lack of finality administrative closure affords, cases cast aside on this standard still count toward the immigration court’s caseload, potentially creating congestion.  The proposed regulations cite this as one justification; they also turn to potential for inconsistent timelines and inconsistent outcomes because administrative closure, as a practice, is not well-defined in existing law, opting to eliminate administrative closure rather than to standardize it.  Under the new regulations, the Department of Homeland Security (DHS) would have full prosecutorial authority, with administrative closure only available if authorized by another regulation or in a settlement of the case itself.

Nonetheless, the end of administrative closure could complicate proceedings for those facing potential removal.  Cases may be heard sooner than is sensible, leading to avoidable outcomes and providing relief from those decisions only through complicated, time-consuming processes.  Likewise, pressing cases could be delayed by the inability to inactivate those cases that are better heard later.

If the proposed change, paired with others in the regulations, are too rigid, individuals with cases in the EOIR system may find themselves limited by a lack of judicial discretion, as well as by new requirements.  Because the proposal mentions that more than 1 in 5 people with immigration cases are not represented by an attorney, it will be especially important to seek legal counsel to navigate both the current case law on administrative closure and, should they take effect, these new rules.

The Francis Law Center website has resources on removal defense and remaining in the United States, and will remain updated as these proposed regulations move forward.

This information is intended to educate and should not be taken as legal advice.
Written by Francis Law Center Staff Eric Liberatore

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