Immigration Law

ABA urges DOJ to continue allowing immigration judges to close appropriate cases

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The American Bar Association has filed an amicus brief with the U.S. Department of Justice, urging it not to revoke immigration judges’ ability to administratively close cases.

The brief was filed in response to a call by U.S. Attorney General Jeff Sessions for comment on the matter, after he referred a case on administrative closure to himself. (Sessions has that power because the immigration courts are part of the Department of Justice, not an independent body.) Sessions asked the parties and amici to weigh in on whether the immigration judges have the authority to administratively close a case, and if not, whether he should grant them that power.

The ABA’s brief says that immigration judges not only have the authority to administratively close cases, but need administrative closure as a tool for managing their very high caseloads. The attorney general has delegated to judges the power to “take any action … appropriate and necessary for the disposition” of their cases, the brief notes. Judges have used administrative closure for 30 years, the brief says, and the DOJ has created more than a dozen regulations assuming administrative closure is within their power.

“The Supreme Court has explained—in the context of Article III courts—that ‘the power to stay proceedings is incidental to the power inherent in every court,’” the ABA brief says. “The same is true for the BIA and immigration courts.”

In addition, the ABA argues, administrative closure is an important tool for docket management. Administrative closure essentially suspends a case, creating a pause in cases that are not yet ready to be heard so that the court can focus its efforts on those cases that are priorities. Withdrawing that authority would exacerbate the immigration courts’ backlog, which as of December was 667,000 cases, according to Syracuse University. It could also force immigrants into court before proceedings elsewhere (such as a state-court case or a visa application) are finished, effectively denying them relief they’re entitled to.

“An increased reliance on continuances would be highly detrimental to the effective operation of the courts, forcing IJs and the parties to expend valuable time and resources on cases that do not need to be adjudicated,” the brief says. “And entering final orders of removal when an immigrant has a fair likelihood of obtaining immigration relief … is arbitrary and contrary to the Immigration and Nationality Act’s recognition that certain classes of individuals are deserving of relief.”

The ABA took no position on whether the respondent in the underlying case, Matter of Castro Tum, merited administrative closure. In that case, an immigration judge administratively closed a case of an unaccompanied minor who did not appear at his hearing, but the Board of Immigration Appeals vacated and remanded the matter.

Immigration Judge Ashley Tabaddor, president of the National Association of Immigration Judges, says her union sent a letter to the Department of Justice, arguing that having a certain number of inactive cases on the docket is “an effective and common docket management tool.” There have been no complaints or other evidence of abuse, she says. She believes Sessions certified himself the case for political reasons—and notes that he’s not the first attorney general to have done so.

“That, to us, is another example of the structural defects of having the court in a law enforcement agency, where based on those kind of forces, decisions are being made that obviously impact the integrity of the court,” says Tabaddor, who sits in Los Angeles. “The way the whole thing is set up … allows for these types of activities that would have never been allowed in a traditional court setting.”

The call for amicus briefs has gotten attention in other corners of the world of immigration law. Another brief was filed by 14 former immigration judges or Board of Immigration Appeals judges, who argued that their former colleagues do have the authority to administratively close cases. They also argued that the attorney general may not revoke that authority without following the notice-and-comment procedure required for federal agencies’ rulemaking and thus cannot take action on cases that have already been administratively closed.

Updated at 7:15 p.m. to include comments from Tabaddor.

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