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How much power does a judge have in a deportation hearing?

| May 19, 2021 | DACA, Removal Defense |

What happens when someone faces deportation due to criminal charges, but then has the charges dismissed? Can the judge drop the deportation case? Unfortunately, the answer to these questions can be difficult. A recent case provides some clarity.

What was the case?

The case involves a boy who came to the United States in 2002 when he was only 7 years old. Ten years later, a judge gave him temporary status under Deferred Action for Childhood Arrivals (DACA). The court revoked his DACA status in 2019 when he faced criminal charges. When the court dismissed the criminal charges, the young man asked the Board of Immigration Appeals (BIA) to renew his DACA status so he could fight the removal proceeding. The BIA stated they did not have this authority and rejected the request.

But did they have the authority? Why was there confusion in the first place?

The problem stems back to an earlier court case. In 2018, Attorney General Jeff Sessions, who served under President Donald Trump, wrote the opinion in Matter of Castro-Tum. In this opinion, former Attorney General Sessions stated judges did not have the ability to remove cases, like the request made in this situation. His main reason for this decision: he believed judges were using this power too much. Multiple courts rejected Sessions’ decision and the current administration may take further action to appeal the decision. But the fact that it is out there remains to cause confusion for courts.

Where do things stand right now?

As noted above, Sessions argued judges should not have this power because they used it too much. As explained in a recent analysis by Reuters, whether the power is used too much or legally allowed are two separate issues. The rate of use does not impact the legality of the judge’s ability to use this power.

Based on this reasoning, the appeals court in this case held that immigration judges can close deportation cases in this type of situation.

What is the main lesson from this case?

This is just one of many cases that signals ongoing change under the current administration. As such, anyone facing legal issues involving immigration is wise to stay current in the legal landscape to better ensure success.

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