Attorney General Jeff Sessions issued a decision in Matter of Castro-Tum on May 17, 2018, that revoked immigration judges’ and the Board of Immigration Appeals’ authority to temporarily close cases without deciding them.

The practice, known as administrative closure, is recognized as a “docket management tool,” which judges use to prioritize their caseload and the government’s limited enforcement resources. Administratively closed cases are removed from the active court docket and give immigrants an opportunity to live in the United States without the fear of deportation. Administrative closure does not provide permanent residency status; rather, it put cases on indefinite hold, delaying removal proceedings. The result of the attorney general’s decision will likely further strain an already overwhelmed immigration court system in the United States by potentially adding another 300,000 cases to a current court backlog of about 700,000 cases.

Administrative closure has become an established part of immigration court procedures since the 1980s (see CLINIC’s amicus brief filed in Matter of Castro-Tum back in February 2018). Until recently, it was an uncontroversial management tool that allowed a judge to temporarily take a case off the court docket, usually to allow for an immigrant’s related immigration proceedings to be completed – for example, to wait for visa approval or for an asylum application to be adjudicated. But Sessions thinks the measure gives undocumented immigrants a free pass by delaying potential decisions on deportation. Although the attorney general acknowledges that since 1998, the Department of Justice issued a series of regulations that authorized or mandated administrative closure, he emphasized that these were only in a defined set of cases and that none of the regulations delegated general authority to immigration judges or the Board to authorize administrative closure. According to his written decision, “some regulations have authorized or required administrative closure, but only in limited circumstances.”

Between 1988 and 2012, Board precedent held than an immigration judge could grant administrative closure only where both parties supported the request. See, e.g., Matter of Lopez-Barrios, 20 I&N Dec. 2013, 204 (BIA 1990); Matter of Gutierrez-Lopez, 21 &N Dec. 479, 480 (BIA 1996). In 2012, the Board in Matter of Avetisyan expanded the practice holding for the first time that an immigration judge could close a case over the objection of one party. 25 I&N Dec. at 694. Later, in Matter of W-Y-U, the Board clarified that the primary consideration in determining whether to administratively close a case over a party’s objection was “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.

More recently, within the last few years since 2013, both the chief immigration judge and the Department of Homeland Security, or DHS, issued policy memos promoting the use of administrative closure (and continuances and termination) as a docketing tool to ensure the fair and timely resolution of cases before them. When the court dockets began to get more and more backlogged under the Obama administration, Immigration and Customs Enforcement would agree to use prosecutorial discretion to close certain cases. Up until early 2017, DHS used administrative closure as a way to decline to prosecute low priority cases without formally terminating them. San Francisco immigration judge Dana Marks explained to Mother Jones, “Often in those years, if someone had a clean record and had been here a significant period of time, they could ask for administrative closure. And DHS wouldn’t oppose it.”

In Castro-Tum, an immigration judge ordered administrative closure over DHS’s objection to a minor from Guatemala who had no legal representation. The immigration judge had concerns about whether the respondent had sufficient notice to appear in court. When DHS could not demonstrate that he had received notice, the immigration judge administratively closed the case to ensure fairness. But Attorney General Sessions believed this was an overreach of the judge’s discretion and held that immigration judges and the Board lack the authority to administratively close except where a previous regulation or settlement agreement has expressly conferred it.

Immigration advocates, including CLINIC, say that the decision grossly misinterprets the laws, undermines due process, and will add tens of thousands of cases to the overburdened immigration court system. According to the National Immigrant Justice Center, “the Attorney General has one agenda with this unnecessary ruling – to reduce immigration judges to deportation machines.” It is another example of the administration showing unnecessary cruelty towards immigrant families, said Jeanne Atkinson, executive director of CLINIC. “Many immigrants who had claims for immigration relief relied on government assurances that they wouldn’t be deported if they agreed to let their cases be closed. Now, years later, the Trump administration is changing the rules on immigrants who did exactly what the government instructed them to do.”

It is difficult to predict the extent of Sessions’ decision in Castro-Tum and its effect on the backlog of cases in immigration court. To avoid overwhelming immigration courts, the attorney general is permitting currently administratively closed cases to remain closed, unless DHS or the immigrant respondent in each case requests recalendaring to put the case back on the active docket.

Another major concern with the Castro-Tum decision is that the Department of Justice is curbing immigration judges’ independence, making immigration courts subject to decisions made by the attorney general that are presumably based on a political agenda. Judges should be able to control their dockets and ending administrative closures limits the tools available to them. Immigration judges and the BIA have the authority to “exercise their independent judgement and discretion and… take any action consistent with their authorities under the [INA] and regulations that is appropriate and necessary for the disposition of such cases…” 8 CFR §§ 1003.10(b), 1003.1(d)(1)(ii). There is no express authority to allow administrative closure of cases, but regulations do grant the chief immigration judge and the chairman of the board the authority to manage dockets, giving both the power “to set priorities or time frames for the resolution of cases, to direct that the adjudication of certain cases be deferred… and otherwise to manage the dockets of matters to be decided by” the immigration judges or the Board. 8 CFR §§ 1003.9(b)(3), 1003.1(a)(2)(i)(C). Moreover, most courts have interpreted section 1003.10(b) to confer on immigration judges “a reasonable degree of latitude on conducting… proceedings.” Ramirez-Durazo, 794 F.2d 491, 496 (9^th Cir. 1986); Jeronimo v. U.S. Att’y Gen, 678 F. App’x 796, 804 (11^th Cir. 2017).

Since the beginning of 2018, Sessions has handpicked and personally taken on three immigration cases. By referring Matter of A-B-, Matter of Castro-Tum, and Matter of L-A-B-R (a separate case that could limit judges’ ability to issue continuances) to himself, the attorney general is setting new precedents for hundreds of thousands of immigrants with pending immigration cases and those who could be placed in removal proceedings in the future. And it likely won’t stop with rulings on these three cases. A notice published as part of the Justice Department’s spring 2018 regulatory agenda hints at more BIA cases being referred to the attorney general for review.