Attorney General Sessions Holds That Immigration Judges And The Board of Immigration Appeals Have No General Authority To Suspend Indefinitely Immigration Proceedings Via Administrative Closure

Attorney General Sessions Holds That Immigration Judges And The Board of Immigration Appeals Have No General Authority To Suspend Indefinitely Immigration Proceedings Via Administrative Closure But MAY Only Administratively Close Where A Previous Regulation Or Judicially Approved Settlement Expressly Authorizes Such Action. Otherwise, Where A Case Has Been Administratively Closed, The Judge Or Board Shall Recalendar On Motion of Either Party. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) Expressly Overruled.

On May 17, 2018, Attorney General Jefferson Session decided a matter he had directed the Board of Immigration Appeals (BIA or Board) to refer for his review. He had previously requested the parties and interested Amici to submit briefs.

In his lengthy decision, the Attorney General (AG) initially noted the dramatic growth of the practice of administrative closure as “the Board has made [it] easier to obtain.” For decades, stated the AG, IJs could grant administrative closure only if both parties agreed, however, Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) authorized the practice even over a party’s objection. More recently, the BIA in Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) had clarified that the deciding factor should be “whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” In affirming the Board’s order in the instant case vacating the IJ’s administrative closure order and remand, the AG held that “there is no general authority for administrative closure, as IJs can only exercise the authority provided by statute or delegated by his office. Because 1) Congress has never authorized the practice in a statute, 2) the Department of Justice (DOJ) only permits administrative closure in “specific categories of cases,” and 3) the AG has never delegated the general authority to do so and declines to do so, the decision ordered that cases administratively closed without “a specific authorizing regulatory provision or judicially approved settlement” be “recalendared upon motion by either party and overruled “all Board precedents inconsistent with” the instant opinion.

The AG began his analysis with a lengthy history of administrative closure, emphasizing that until Avetisyan in 2012, an IJ could only grant closure where both parties supported the request; the Avetisyan decision “significantly expanded the practice.” Thus, until early 2017, DHS used administrative closure decline to expend manpower on the prosecution of low priority cases without formally terminating them. However, last year revised guidance from DHS ended the practice of exempting classes of removable respondents from potential enforcement. Collaterally, noted Sessions, between 1998 and 2003, DHS “promulgated regulations requiring administrative closure in certain cases where [respondents] pursue statutory procedures to avoid removal.” The end result was a series of rules limiting closure to specific categories of cases, but no delegation to IJs of the general authority to authorize administrative closure.

The AG next addressed the complicated procedural history of the instant case, noting that at respondent’s fifth hearing, the IJ administratively closed respondent’s case and 10 others where the respondent had failed to appear, claiming that addresses from the Department of Health and Human Services’ Office of Refugee Resettlement (HHS-ORR) were not reliable. DHS had countered that “HHS-OOR had obtained the relevant address from the respondent in multiple forms, and provided additional proof that the mailing address did not contain errors.” Yet the IJ ordered the case administratively closed. The BIA vacated and remanded but a little over one month later, the AG certified the case for review.

Finding that IJs and the Board “lack a general authority to grant administrative closure,” as such “broad authority” has never been delegated and legal/policy arguments “do not justify it,” the AG held that IJs and the BIA only possess such authority where a previous regulation or settlement agreement expressly provides for it. Sessions found that no regulation – specifically citing to 8 C.F.R. §§1003.1(d)(1)(ii), 1003.10(b) – confers the authority to grant administrative closure. Similarly, he ruled that 8 C.F.R. §1240.1(a) (relied upon by Avetisyan), which states that IJs may take any action consistent with applicable law as may be appropriate, “does not concern the authority to make procedure rulings within the proceeding, such as the granting of administrative closure.“ Similarly, §1240.1(c), which recognizes that IJs may “otherwise regulate the course of the hearing” does not grant such authority, per the AG.

Additionally, the regulations that allow the Chief Immigration Judge and the Chairman of the BIA the authority to manage dockets (8 C.F.R. §§1003.1(a)(2)(i)(A), 1003.10(b)(1)) “grant no express authority to administratively close cases” and cannot reasonably be seen as implicitly delegating such authority, either. In fact, held Session, as no federal court has analyzed these regulations, those Court of Appeals decisions that have relied on Avetisyan or other circuit precedent to assume that IJs and the Board have closure authority neither conflict with, nor diminish, his authority to interpret the rules here. Such interpretations, found the decision, would also make the specific delegations of authority AGs have previously made in this area superfluous and would conflict with policies in place that obligate IJs and the BIA “to resolve immigration matters expeditiously.”

Further along these lines, Sessions noted that previous “instances of limited, express authority” by the AG confirm that there has been no broad delegation of closure authority; in such instances, the provision that IJs “may” administratively close specific cases further proves they do not already possess the discretionary power to do so. Again, interpreting the regulations to authorize general closure authority conflicts with current policies mandating that IJs and the Board proceed expeditiously to resolve cases since DHS has initiated proceedings. As in the instant case involving in absentia proceedings, INA §240(b)(5) imposes “an obligation” to order a noncitizen removed if the requisite evidence supports the charge. Lastly, that IJs and the BIA have continuously used administrative closure since the 1980s does not establish the existence of that authority; they “cannot arrogate power to themselves by seizing it,” concluded the opinion, in effect relying on the AG’s lack of specific disapproval.

Thus, Sessions ordered that all cases currently administratively closed “may remain closed unless DHS or the respondent requests recalendaring” and, upon motion of either party, the case shall be recalendared. The Board’s decision was affirmed and the case remanded for the IJ to issue a new Notice of Hearing within 14 days; the court was expressly ordered to proceed in absentia if respondent again fails to appear. Matter of Castro-Tum, 27 I&N Dec. 271 (BIA 2018).