Attorney General Garland Vacates Matter of Cruz-Valdez and Matter of A-C-A-A-
Authored by Denise Noonan Slavin and Rebecca Scholtz.
Attorney General Merrick Garland has issued two precedent decisions vacating attorney general decisions issued during the Trump administration that had imposed procedural restrictions on immigration judges, or IJs, and the Board of Immigration Appeals, or BIA, that affected both the fairness and timeliness of proceedings. On July 15, 2021, Attorney General Garland issued Matter of Cruz-Valdez, 28 I&N Dec. 326 (AG 2021), which overruled the 2018 attorney general decision Matter of Castro-Tum, 27 I&N Dec. 271 (AG 2018), and thereby restored the authority of IJs and the BIA to administratively close cases nationwide. In Matter of A-C-A-A-, 28 I&N Dec. 351 (AG 2021) (Matter of A-C-A-A- II), issued on July 26, 2021, Attorney General Garland restored the longstanding practice in the immigration court system (a practice in existence for hundreds of years in common law) of allowing the BIA the discretion to rely on stipulations made by the parties in immigration court.
As has been reported earlier, attorneys general under the Trump administration manipulated the process of certification of cases to the attorney general to issue broad decisions rewriting much of the substance and procedure of immigration law. In the area of immigration court procedure, limits were imposed on the court’s authority to terminate cases (Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (AG 2018)), administratively close cases (Matter of Castro-Tum, 27 I&N Dec. 271 (AG 2018)), continue cases (Matter of L-A-B-R-, 27 I&N Dec. 405 (AG 2018)), and accept stipulations (Matter of A-C-A-A-, 28 I&N Dec. 84 (AG 2020) (Matter of A-C-A-A- I)). These limits, while they may appear facially neutral, had an adverse impact on noncitizens, making it more difficult for them to establish eligibility for relief. In addition, many of these restrictions on the court’s ability to manage the docket contributed significantly to the backlog of cases before the immigration court, which more than doubled under the Trump administration, going to 1.3 million cases.
Attorney General Garland has been taking measured steps to undo the damage to the immigration court system caused by the Trump administration. In Matter of A-B- III, 28 I&N Dec. 307 (AG 2021), and Matter of L-E-A- III, 28 I&N Dec. 304 (AG 2021), Attorney General Garland vacated three decisions that had severely restricted asylum eligibility for those fleeing domestic and gang violence and directed adjudicators to follow the law previously in effect. In doing so, he acknowledged the importance of addressing any concerns raised in the established caselaw through the rule-making process.
Matter of Cruz-Valdez
In Matter of Cruz-Valdez, 28 I&N Dec. 326 (AG 2021), the attorney general vacated Castro-Tum and restored the docket management tool of administrative closure to IJs and the BIA. IJs and the BIA have used administrative closure for decades to temporarily pause immigration court cases. Administrative closure has historically been used to await some out-of-court event such as the adjudication by U.S. Citizenship and Immigration Services of an immigration application, or to facilitate the exercise of prosecutorial discretion by the Department of Homeland Security, or DHS. Administrative closure thus allows IJs to take cases that were not ripe for litigation but clogging the court docket off the docket until they were otherwise resolved or ready for resolution. It has been estimated that there were over 300,000 administratively closed cases that could have been added to the already crushing backlog if action was not taken.
In Cruz-Valdez, the attorney general noted that three U.S. courts of appeals had rejected Castro-Tum and concluded that administrative closure was clearly within an IJ’s authority under the regulations. The attorney general reasoned that because Castro-Tum “departed from long-standing practice,” it was appropriate to overrule that opinion in its entirety and restore administrative closure pending notice-and-comment rulemaking to reconsider a separate, currently-enjoined 2020 regulation that had also eradicated administrative closure. 28 I&N Dec. at 329.
The Cruz-Valdez decision concludes by directing IJs and the BIA to apply the standards for administrative closure set forth in Matter of Avetisyan, 25 I&N 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), “except when a court of appeals has held otherwise” while the agency reconsiders the 2020 regulation. 28 I&N Dec. at 329.
The BIA decision of Matter of Avetisyan sets forth the following non-exclusive factors for administrative closure:
- the reason administrative closure is sought;
- the basis for any opposition to administrative closure;
- the likelihood the respondent will succeed on the petition, application, or other action that is being pursued outside the removal proceeding;
- the anticipated time period of the closure;
- the responsibility of either party in contributing to any current or anticipated delay; and
- the expected outcome of removal proceedings when the case is ultimately re-calendared.
The BIA’s Matter of W-Y-U- decision addresses the scenario where one party opposes the other party’s motion for administrative closure. W-Y-U- holds that in this situation the “primary consideration for an immigration judge in determining whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” 27 I&N Dec. at 20.
Matter of A-C-A-A- II
In Matter of A-C-A-A- II, Attorney General Garland found that Matter of A-C-A-A- I “appears to impose rigid procedural requirements that would undermine the fair and efficient adjudication of asylum claims” and that a case-by-case decision on whether to accept stipulations was more appropriate. 28 I&N Dec. at 351 (emphasis added). In Matter of A-C-A-A- I, Attorney General Garland’s predecessor held that the BIA should not accept the parties’ stipulations, or their lack of dispute, as to any element of an asylum claim as proof that the element had been established. Instead, he held that the BIA was required to “meaningfully review” each element of an asylum claim before granting asylum. Matter of A-C-A-A- I, 28 I&N Dec. at 88. Attorney General Garland found that the holding in Matter of A-C-A-A- I flew in the face of longstanding practice that was expressly recognized by (1) regulations allowing the parties to narrow issues in dispute by obtaining stipulations and (2) appellate regulations requiring the appealing party to specifically identify factual or legal issues being challenged, “indicating that the appellant largely shapes the focus of appeal.” 28 I&N Dec. at 352. The attorney general found that the “traditional approach [of case by case review] helps ensure efficient adjudication by focusing the immigration courts’ limited resources on the issues that the parties actually contest rather than those on which they agree.” Id. Attorney General Garland also noted that Matter A-C-A-A- I made the changes based on decisions that he had subsequently vacated. Id.
While the holding in Matter of A-C-A-A- II itself seems to address only the BIA’s review of stipulations, by noting the regulations relating to stipulations at the immigration court level and the efficacy of the practice generally, the decision applies to IJs’ acceptance of stipulations. In addition, in a Policy Memorandum issued on June 11, 2021, Jean King—the Acting Director of the Executive Office for Immigration Review, or EOIR—endorsed and encouraged immigration court use of stipulations. EOIR Memo, “Effect of Department of Homeland Security Enforcement Priorities,” Policy Memorandum 21-25, at 2 (June 11, 2021). Acting Director Jean used similar language to that of Attorney General Garland in Matter of A-C-A-A- II, stating that “The role of the immigration court and the BIA . . . is to resolve disputes. . . . [I]t is imperative that EOIR’s adjudicators use adjudication resources to resolve questions before them in cases that remain in dispute.” Id. Acting Director King further directed that “[i]mmigration judges should be prepared to inquire, on the record, . . . as to . . . whether ICE intends to exercise some form of prosecutorial discretion, for example, . . . by stipulating to eligibility for relief.” Id. In conclusion, Acting Director King specifically encouraged “[a]ll EOIR adjudicators” to “act consistently with the role of the immigration courts and the BIA in resolving disputes.” Id. at 3. In sum, this memorandum evidences EOIR’s policy encouraging the immigration courts and the BIA to accept stipulations.
Matter of A-C-A-A- II vacated Matter of A-C-A-A- I in its entirety. Thus, the restrictive language in Matter of A-C-A-A- I on the asylum element of nexus and on gender-based asylum claims—grounded in the now vacated decisions of Matter of L-E-A- II, 27 I&N Dec. 581 (AG 2019), and Matter of A-B- I, 27 I&N Dec. 316 (AG 2018))—is no longer applicable.
The decision to administratively close a case is within the discretion of an IJ or the BIA. In arguing that a matter should be administratively closed, it is important to include all relevant factors that the IJ should consider. The six Avetisyan factors referenced above are non-exclusive, so practitioners should include case-specific facts that the IJ should consider. For example, the fact that a client is experiencing trauma that is impeding the practitioner’s ability to prepare the case and could be alleviated by the case being taken off the docket is a fact that the practitioner should include in the motion. See, e.g., Matter of M-A-M-, 25 I&N Dec. 474, 483 (BIA 2011). Also, practitioners should include supporting documentation for the facts alleged in the motion. See Immigration Court Practice Manual, ch. 5.2(e) (“Statements made in a motion are not evidence. If a motion is based upon evidence that was not made part of the record by the Immigration Judge, that evidence should be submitted with the motion.”). Finally, while under Avetisyan DHS non-opposition is not required for the IJ or the BIA to grant administrative closure, it is certainly helpful to the motion if DHS joins or is not in opposition.
The acceptance or rejection of a stipulation is also in the discretion of an IJ. Practitioners should use precise language when offering the stipulation to the court. For example, “the parties stipulate that the contents of the declaration filed by the respondent in support of this case are true and correct and that the respondent would testify consistently with the declaration,” as opposed to “the parties stipulate to the declaration.” In addition, when stipulating with respect to a legal element of the case, the parties should be prepared to state how the respondent or DHS has met the burden of proof or how the requirements of that legal element have been satisfied.
Also, for both motions to administratively close and when asking an IJ to accept the parties’ stipulation, there is helpful language in EOIR PM 21-25. That memo specifically states that all IJs should be prepared to ask on the record if there is a stipulation for relief or if the parties agree to administrative closure. EOIR PM 21-25, at 2. The memo also encourages IJs to use docketing practices that “ensure respondents receive fair and timely adjudications, and act consistently with the role of the immigration courts and the BIA in resolving disputes.” Id. at 3.