04 Mar Is Administrative Closure of My Deportation Case Still Possible
By: Sylva Graham
The Trump administration attributes some of the immigration court’s case backlog to delays caused by the foreign national, called “Respondents,” and to the Immigration Judges’ overuse of docket management tools. In an effort for efficiency and to expedite deportations, the Attorney General referred cases to himself and issued decisions limiting the use of these tools. Administrative closure is one of those tools.
There are many valid reasons why a Respondent would want to delay his or her removal proceedings, including the obvious reason that they want to remain in the United States as long as possible. However, they may also want to delay their removal proceedings so that they can seek other relief with U.S. Citizenship and Immigration Services. This relief might include adjustment of status, a petition from a family member, a U-visa, protection under the Violence Against Women Act, etc. They may also be seeking relief in state court, such as post-conviction relief, Special Immigrant Juvenile Status in family court, etc.
In the past three decades, pausing one’s removal proceedings was accomplished through administrative closure. Immigration Judges, as well as the Board of Immigration Appeals (BIA), often used this tool to put cases on hold, taking the case off their calendar and not setting a future hearing date. The case remained on hold until either the Respondent or the Department of Homeland Security (DHS) requested the case to be put back on the Judge’s calendar for a hearing or the case was terminated. The Immigration Judge and the BIA had the sole power to administratively close a case, despite either party’s opposition.
This practice changed in May 2018 after the Attorney General referred a case to himself and issued a decision, severely limiting the Immigration Judge’s and the BIA’s ability to administratively close cases. In Matter of Castro-Tum, the Attorney General limited the use of administrative closure to cases where an existing regulation or court settlement expressly allows for such closure. However, under Matter of Castro-Tum, it appears that only a handful of regulations and settlements authorize administrative closure. Also, administrative closure is still available to individuals whose case is within the jurisdiction of the Fourth Circuit based on its August 2019 decision in Zuniga Romero v. Barr, overturning Matter of Castro-Tum.
But what if you do not fall into one of these categories and your case is not in the Fourth Circuit? Will the Immigration Judge issue a final removal order while your other relief is pending? Not necessarily. Your attorney can still request administrative closure and oppose DHS’s requests to put the matter back on the Judge’s calendar. There are also alternatives to administrative closure that your attorney can request. One of those alternatives is a Motion to Continue. Judges can grant a Motion to Continue for a “good cause.”
In August 2018, the Attorney General issued a precedential decision, Matter of L-A-B-R, addressing the factors that a Judge must consider in deciding whether to grant the motion and what weight to give to the factors. Under the L-A-B-R holding, Judges should give more weight to the likelihood that the other relief will be granted and whether it will materially affect the outcome of the removal proceedings. Secondary factors to be considered are DHS’s position on the motion, due diligence in pursuing the other relief, the length of continuance, procedural history, and administrative efficiency.
Another alternative is to request the case be put on a “status docket.” Status docket is a case management tool increasingly used by Immigration Judges since Matter of Castro-Tum. Similar to administrative closure, it puts a case on hold, usually to pursue some other relief. Where status docket differs from administrative closure is the need for periodic case updates. The Immigration Judge sets a deadline by which an update is to be submitted. If an update is submitted, and the other relief is still pending, the case will remain on status docket. If an update is not submitted, an appearance in court is necessary.
It is true that many of the recent changes in our immigration laws are not beneficial to respondents. But being placed in removal proceedings does not mean that deportation is automatic. Consult with a knowledgeable and experienced immigration attorney about the best way to continue living in the U.S. with your friends and family.