In re Castro-Tum

• Decision Date: 17 May 2018
• Docket Number: Interim Decision #3926
• Citation: 27 I&N Dec. 271
• Parties: Matter of Castro-Tum, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

27 I&N Dec. 271

Matter of Castro-Tum, Respondent

Interim Decision #3926

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

May 17, 2018

BEFORE THE ATTORNEY GENERAL

On January 4, 2018, I directed the Board of Immigration Appeals ("Board") to refer for my review its decision in this matter, see 8 C.F.R. § 1003.1(h)(1)(i), and I invited the parties and any interested amici to submit briefs addressing questions relevant to that certification. Matter of Castro-Tum, 27 I&N Dec. 187 (A.G. 2018).

For the reasons set forth in the accompanying opinion, I affirm the Board's order and remand for further proceedings. I hold that immigration judges and the Board do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. Accordingly, immigration judges and the Board may only administratively close a case where a previous regulation or a previous judicially approved settlement expressly authorizes such an action. Where a case has been administratively closed without such authority, the immigration judge or the Board, as appropriate, shall recalendar the case on the motion of either party. I overrule Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), and any other Board precedent, to the extent those decisions are inconsistent with this opinion.

Matter of Castro-Tum

In recent years, immigration judges and the Board have increasingly ordered administrative closure to remove a large number of cases from their dockets. The Board has described the practice as "a docket management tool that is used to temporarily pause removal proceedings," Matter of W-Y-U-, 27 I&N Dec. 17, 18 (BIA 2017), and "remove a case from an Immigration Judge's active calendar or from the Board's docket." Matter of Avetisyan, 25 I&N Dec. 688, 692 (BIA 2012).

Although described as a temporary suspension, administrative closure is effectively permanent in most instances. Unless a party "move[s] to recalendar [an administratively closed case] before the Immigration Court . . . or to reinstate the appeal before the Board," id., the case remains indefinitely

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suspended without a final resolution. Statistics supplied by the Executive Office for Immigration Review ("EOIR") demonstrate that effect.

Since 1980, immigration judges have recalendared less than a third of administratively closed cases. Because the case comes off the active docket, the immigration judge no longer tracks it, and EOIR does not count the case as active in assessing backlogs in immigration proceedings. See, e.g., Memorandum for All Immigration Judges, from Brian M. O'Leary, Chief Immigration Judge, EOIR, Re: Operating Policies and Procedures Memorandum 13-01: Continuances and Administrative Closure at 2-3 (Mar. 7, 2013) ("OPPM 13-01"). Administratively closed cases are also difficult to recalendar. The Department of Homeland Security ("DHS") may not know when the reason for the suspension (such as the pendency of a collateral proceeding) has been resolved. Even where DHS moves to recalendar, the Board has imposed the burden of persuasion on the movant. W-Y-U-, 27 I&N Dec. at 18 & n.4. And the alien respondent in most cases has few incentives to seek to recalendar because "as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States." INS v. Doherty, 502 U.S. 314, 323 (1992).

The practice of administrative closure has grown dramatically as the Board has made administrative closure easier to obtain. Statistics maintained by EOIR reveal that over three decades, from EOIR Fiscal Year 1980 to Fiscal Year 2011, 283,366 cases were administratively closed. But in a mere six years, from October 1, 2011 through September 30, 2017, immigration judges and the Board ordered administrative closure in 215,285 additional cases, nearly doubling the total number of cases subjected to administrative closure.

This sharp increase tracks changes in Board precedent. For decades, the immigration judge would grant administrative closure only if both parties agreed. In its 2012 Avetisyan decision, however, the Board discarded that principle and authorized administrative closure even over a party's objection. 25 I&N Dec. at 694, 696. After the Avetisyan test proved unwieldy, the Board recently "clarif[ied]" 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." W-Y-U-, 27 I&N Dec. at 20 (emphasis added).

This certified case illustrates but one example of how administrative closure encumbers the fair and efficient administration of immigration cases. The respondent entered this country illegally in 2014 and was immediately detained. As an unaccompanied minor, he was served with a Notice to Appear and released to a relative after providing the address where they would reside. Despite several efforts to notify the respondent of his hearing dates, he repeatedly failed to appear. The Immigration Judge nonetheless

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continued this case four times and finally ordered the case administratively closed on the ground that DHS had not shown it had a sufficiently reliable address to provide adequate notice.

On appeal, the Board vacated the Immigration Judge's administrative closure order and remanded. DHS represents that this certified case is one of nearly 200 decisions between April 2017 and December 2017 in which an immigration judge either ordered administrative closure or refused to recalendar an administratively closed case over DHS's objection. Brief for DHS at 10-11, Castro-Tum, 27 I&N Dec. 187 (A.G. 2018).

For the reasons stated below, I affirm the Board's November 27, 2017 order and hold that there is no general authority for administrative closure. Immigration judges exercise only the authority provided by statute or delegated by the Attorney General. Congress has never authorized administrative closures in a statute, and Department of Justice regulations only permit administrative closure in specific categories of cases. The Attorney General has never delegated the general authority, and I decline to do so now. Cases that have been administratively closed absent a specific authorizing regulatory provision or judicially approved settlement shall be recalendared upon motion of either party. I overrule all Board precedents inconsistent with this opinion and remand for further proceedings.

I.

I begin with the history of administrative closure. Although no statute delegates to immigration judges or the Board the authority to order administrative closure, they have employed the practice to halt immigration proceedings indefinitely since at least the early 1980s. During that time, some regulations have authorized or required administrative closure, but only in limited circumstances.

A.

In 1984, the Chief Immigration Judge instructed immigration judges to consider administrative closure as one means of addressing the "recurring problem" of respondents' failure to appear at hearings. Memorandum for All Immigration Judges, from William R. Robie, Chief Immigration Judge, EOIR, Re: Operating Policy and Procedure 84-2: Cases in Which Respondents/Applicants Fail to Appear for Hearing at 1-2 (Mar. 7, 1984). The Chief Immigration Judge did not identify any basis for this authority. Nonetheless, immigration judges and the Board soon employed administrative closure in all types of removal proceedings. By 1988, the

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Board described the practice as an "administrative convenience." Matter of Amico, 19 I&N Dec. 652, 654 n.1 (BIA 1988).

Between 1988 and 2012, Board precedent held that 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. 203, 204 (BIA 1990); Matter of Gutierrez-Lopez, 21 I&N Dec. 479, 480 (BIA 1996). These decisions again assumed without explanation that immigration judges and the Board possessed this general authority.

In 2012, Avetisyan significantly expanded the practice, holding for the first time that an immigration judge could administratively close a case over the objection of one party. 25 I&N Dec. at 694. The Board premised this authority on the immigration judge's power to "regulate the course of the hearing" and to take any action that is "appropriate and necessary for the disposition of such cases." Id. at 691 (citing 8 C.F.R. §§ 1003.10(b) & 1240.1(a)(1)(iv), (c)). The Board specified that an immigration judge considering a motion for administrative closure over one party's objection should consider the following six factors:

(1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any [relief] he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings . . . when the case is recalendared.

Id. at 696.

Recently, in W-Y-U-, the Board "clarif[ied]" the six-factor Avetisyan test and held that the "primary consideration for an Immigration Judge" in determining whether to administratively close a case over a party's objection 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 & n.5. The Board also concluded that, after a case has been administratively closed, the party moving to have the case recalendared must likewise show a "persuasive reason" to do so. Id. at 18 & n.4, 20.

Within the last few years, both the Chief Immigration Judge and DHS issued policy memoranda promoting administrative closure. In 2013, the Chief Immigration Judge instructed immigration judges that "...