Immigration Law

DHS has increased requests to open closed immigration court cases

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Donald Trump

President Donald Trump. Evan El-Amin /

The number of annual requests this fiscal year to reopen closed immigration cases has nearly doubled under President Donald Trump compared with the Obama administration, according to federal data reported by BuzzFeed News.

The Los Angeles Times and Fox News also noted Buzzfeed’s coverage.

During the federal government’s fiscal year 2018, the Department of Homeland Security has asked to reopen nearly 8,000 cases, BuzzFeed says. During fiscal year 2017, part of which was during the Obama administration, it asked to reopen nearly 8,400 cases. By contrast, there were 3,551 and 4,847 requests in the last two fiscal years of the Obama administration. Judges generally grant requests to reopen, BuzzFeed says.

All of these cases were administratively closed, a way of ending cases in immigration court without coming to any formal decision. Immigration judges use administrative closure to pause a case, sometimes because the immigrant needs time to get information or a ruling from a state court. The Obama administration used administrative closure to close the cases of people who had no serious criminal convictions or otherwise didn’t meet its priorities for prosecution.

ICE told BuzzFeed that it was reopening cases of people who’d been accused or convicted of a crime subsequently.

Dana Leigh Marks, president emeritus of the immigration judges’ union and a sitting immigration judge in San Francisco, said motions to reopen were generally made after the immigrant was charged with or convicted of a new crime. Under this administration, she said, the reasons for those motions have expanded.

Sarah Pierce, a senior policy analyst at the nonpartisan think tank the Migration Policy Institute, was more blunt.

“DHS’s increase in motions to recalendar is part of a broad, administration-wide effort to increase deportations,” she said.

The news comes a few months after U.S. Attorney General Jeff Sessions used his power as head of the Department of Justice to rule that immigration judges do not usually have the power to administratively close cases. In so doing, he overturned existing precedent from the Board of Immigration Appeals, the panel that hears appeals from immigration court. The ruling from Sessions said the practice of administrative closure lacks legal foundation and “has produced a backlog all its own.” It told immigration judges to recalendar such cases at either party’s request.

The ABA had opposed the decision from Sessions, filing an amicus brief in February that argued that administrative closure had legal support, had been used for 30 years and helps immigration judges manage their very high caseloads. Withdrawing judges’ authority will make it harder for certain immigrants to get relief they qualify for, the ABA brief said, and will likely exacerbate the high backlog of pending cases in immigration court—which, according to Syracuse University’s Transactional Records Access Clearinghouse is 733,365 through June of 2018.

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