November 30th, 2018
ATTORNEY GENERAL SESSIONS HALTS THE USE OF ADMINISTRATIVE CLOSURE
The use of administrative closure has come to a halt after the decision rendered by Attorney General Jefferson Sessions in the Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), which holds that, in most cases, immigration judges do not have the authority to indefinitely suspend immigration proceedings by administrative closure.
In the past, immigration judges relied on their ability to administratively close cases, technically suspending them, instead of rendering a final decision, in an effort to manage cases in a more efficient manner. This essentially allowed immigrants to remain in the United States without a legal status. The use of this method was inferred from the ability of judges to use their independent judgment and discretion, as consistent with regulations, in the disposition of their cases.
According to the opinion, immigration judges, acting under the authority granted to them under a Statute or as delegated by the Attorney General, do not have unfettered authority to administratively close cases; but are rather permitted to use administrative closure in a specific category of cases – where a previous regulation or a previous judicially approved settlement expressly authorized such an action. As of now, all cases that are currently administratively closed may remain closed unless the Department of Homeland Security (DHS) or the respondent requests re-calendaring.
In addition, administrative closure has been commonly used in the past to allow individuals in removal proceedings to apply for and receive a Provisional Unlawful Presence Waiver prior to departing the United States. Without such a waiver, anyone who has accrued more than six months of unlawful presence and leaves the United States must remain outside the country for either 3 or 10 years before they can be granted a visa, even if they are married to a U.S. citizen or permanent resident. Individuals who are in removal proceedings, however, are ineligible to apply for this waiver unless their case is administratively closed. This decision therefore effectively bars anyone in removal proceedings from applying for a Provisional Unlawful Presence Waiver, adding significantly to the length of time they will be separated from their family in the United States.