Attorney General Sessions Refers BIA Decision To Himself To Review Issues Relating To The Authority Of Both Immigration Judges And The Board Of Immigration Appeals To Administratively Close Immigration Proceedings.

On January 4, 2018, U.S. Attorney General Jefferson Sessions issued an order directing the Board of Immigration Appeals (BIA or Board) to refer Matter of Castro-Tum, A206842910-Philadelphia, PA (BIA, November 27, 2017), to himself for review of the BIA’s decision in that non-presidential (unpublished) decision.  The DHS had appealed from an IJ’s decision administratively closing removal proceedings of a Guatemalan minor who had been designated an unaccompanied alien child (UAC) and provided DHS an address given by the U.S. Department of Health and Human Service’s Office of Refugee Resettlement (HHS-ORR).  Respondent had failed to appear for a removal hearing in April 2016, and DHS had requested that an in absentia removal order be issued. The IJ declined to enter an in absentia order and instead administratively closed the proceedings over DHS objections.

On appeal, the BIA sustained the DHS argument and directed that the order administratively closing the proceedings be vacated.  The BIA decision explained that the INA provides that one who, after being provided written notice does not attend immigration proceedings, shall be ordered removed in absentia if DHS establishes by clear, unequivocal and convincing evidence that written notice of the hearing date was provided.  In the instant matter, the administrative record contained evidence that the respondent had been personally served with the NTA, which included warnings that it was his responsibility to provide an updated mailing address to DHS and that, if he failed to appear, a removal order could be entered in his absence.  Additionally, after the NTA was issued, HHS-ORR issued a Release Notification that certified that respondent and his sponsor were notified that they must inform the immigration court of any address change.  The address in this document was the address used for the Hearing Notice.  Upon considering his experience in other cases, the IJ expressed doubts about how the respondent’s address was secured by HHS-ORR and administratively closed the removal proceeding.

The Board noted that in reviewing the credibility of an address, “each case must be evaluated on its own particular circumstances and facts” and applied the “presumption of regularity” to the official acts of public officers, concluding that in the absence of clear evidence to the contrary, the court must presume that public officers have properly discharged their official duties.  Thus, where there is no evidence that government documents, including those from HHS-ORR, are not reliable the presumption of regularity must apply.  Under the circumstances, the BIA vacated the administrative closure order and remanded the record for further proceedings.

In the instant order, Attorney General Sessions referred the Board decision to himself to review whether IJ’s and the BIA even have authority to administratively close a removal case.  Thus, the parties were invited to submit briefs on the following four points:

  1. Whether Immigration Judges and the Board have the authority, under any statute, regulation or delegation of authority from the Attorney General, to order administrative closure in a case and, if so, whether the BIA’s decisions in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) articulate the appropriate standard for administrative closure;
  2. Whether, if he determines that IJ’s and the Board lack the authority to order administrative closure, the Attorney General should delegate such authority and, alternatively, if he determines that IJ’s and the BIA currently possess that authority, should he withdraw it;
  3. Given the fact that the regulations governing removal proceedings were promulgated for “the expeditious, fair and proper resolution of matters coming before Immigration Judges”, whether there are any circumstances where a docket management device other than administrative closure-including a continuance for good cause shown, dismissal without prejudice, or termination without prejudice-would be inadequate to promote that objective and whether there should be different legal consequences, such as eligibility to apply for a provisional waiver of certain grounds of inadmissibility or for benefits under federal or state programs where a case has been administratively closed rather than continued; and, If Attorney General Sessions determines that there is no authority to order administrative closure and that such power is unwarranted or unavailable, what actions should be taken regarding cases that are already administratively closed.  The parties’ briefs, not to exceed 15,000 words, are to be filed on or before February 2, 2018.  Amici briefs, not to exceed 9000 words, must be filed on or before February 9, 2018.  The parties may submit reply briefs, not to exceed 6000 words, on or before February 20, 2018.  Matter of Castro-Tum, 27 I&N Dec. 187 (A. G. 2018).

Learn more about Levin Immigration.