This article traces the evolution of administrative closure in the Sixth Circuit by providing a brief overview of the practice, a summary of the decision that nearly ended it, and an analysis of the Sixth Circuit’s initial evaluation of that decision. The article culminates in a review of the Sixth Circuit’s most recently decided case on the issue and a discussion of what it means for advocates moving forward.

Administrative closure — the practice of temporarily removing a case from an immigration judge (IJ) or Board of Immigration Appeals’ (BIA) active docket — has in recent years become the subject of fierce debate.[1] Contention surrounding the tool’s use may be attributed to its enigmatic nature: administrative closure is lauded by its proponents as an efficient “docket-management tool” and derided by its critics as an administrative black hole.[2] How can a practice be claimed both to stall and accelerate the adjudication of immigration cases?

Opponents of the practice point to the numbers.[3] Though cases are supposed to be temporarily removed from the docket, data maintained by the Executive Office for Immigration Review (EOIR) indicate that only a fraction of administratively closed cases have ultimately been resolved.[4] This raises the concern that administrative closure stymies rather than eases the flow of immigration cases by creating a pit that sucks cases in without ever spitting them back out.

Advocates of administrative closure posit a more nuanced argument. Though administratively closing a case takes it off the docket, proponents argue that doing so enables IJs and the BIA to more effectively allocate the immigration system’s limited resources.[5] For example, administrative closure can afford an eligible nonimmigrant survivor of domestic abuse time for her Violence Against Women Act (VAWA) or U-visa petition to be processed by United States Citizenship and Immigration Services (USCIS) while she is in removal proceedings.[6] When an application is granted prior to the conclusion of removal proceedings, the proceedings may then be terminated and removed from the docket. Thus, administrative closure allows judges to facilitate USCIS’ grant of humanitarian relief to eligible noncitizens rather than risk depleting precious resources through ongoing removal proceedings and subsequent appeals.

Matter of Castro-Tum

In 2018, then-Attorney General Jeff Sessions sided with opponents of administrative closure in Matter of Castro-Tum.[7] In the decision, Sessions denounced the practice as one that “suspends cases indefinitely” and, as a result, flouts the admonition by the Immigration and Nationality Act (INA) to process cases “expeditiously.”[8]

Grounding his analysis in the INA, Sessions concluded that no provision expressly or impliedly imbues IJs or the BIA with a general authority to administratively close cases.[9] In doing so, Sessions rejected the argument previously adopted by the BIA in Matter of Avetisyan that decision-makers’ broad administrative closure capacity is tethered to 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii).[10] Under the BIA’s interpretation, the statutes permitted IJs and the BIA, respectively, to exercise administrative closure power when doing so was “necessary and proper to the disposition of a case.”[11] Sessions unequivocally opposed the BIA’s analysis, characterizing administrative closure as “the antithesis of a final disposition.”[12]

Notwithstanding the constrained authority delegated to IJs and the BIA to administratively close “specific categories of cases,” like those involving T-visa applicants or those falling under prior judicially approved settlements, Sessions’ decision in Matter of Castro-Tum effectively spelled the end of the practice.[13] For IJs and the BIA, Matter of Castro-Tum was a shock to the system they had been operating under for decades — no longer could a case be shelved while USCIS processed the application of an noncitizen eligible for relief.[14] Standing as testament to widespread discontent with the decision, multiple courts — namely, the Third, Fourth and Seventh Circuits—expressly overruled Castro-Tum in the years following the decision.[15]

Matter of Hernandez-Serrano

In 2020, Matter of Hernandez-Serrano v. Barr presented the Sixth Circuit with the opportunity to evaluate Sessions’ interpretation in Castro-Tum.[16] Petitioner Hernandez-Serrano unlawfully entered the United States when he was 16 years old, was placed in removal proceedings, and shortly thereafter became eligible for “Special Immigrant Juvenile” (SIJ) status — a designation that allows a noncitizen to forge a pathway to lawful permanent resident status.[17] To allow sufficient time for USCIS to approve his petition for SIJ status, Hernandez-Serrano requested that his case be administratively closed.[18] The IJ denied the motion and ordered Hernandez-Serrano removed.[19]

Shortly after filing an appeal with the BIA, Hernandez-Serrano’s petition for SIJ status was approved.[20] Nonetheless, the BIA cited Castro-Tum in holding that the IJ lacked authority to administratively close the case under 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii).[21]

The Sixth Circuit ultimately deviated from the holdings of the Third, Fourth and Seventh Circuits by electing to defer to Sessions’ interpretation in Castro-Tum.[22] Observing that the lion’s share of administratively closed cases have yet to be resolved, the majority concluded that administrative closure — an action frequently resulting in the non-adjudication of a case — cannot rightfully be characterized as an action “necessary for the disposition” of a case as required by 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii).[23] This logic closely tracks Sessions’ in Castro-Tum.[24]

Judge Clay dissented, citing the efficiency gains incurred by the practice and interpreting the capacious language of 8 C.F.R. §§ 1003.12 and 1003.1(d) as delegating general administrative closure authority.[25] More prescient, however, is Judge Clay’s discussion of 8 C.F.R. § 212.7(e)(4)(iii), a regulation preventing eligible noncitizens in removal proceedings from obtaining a provisional unlawful presence waiver unless their case has been administratively closed.[26]

As Sessions observed in a footnote to Castro-Tum, 8 C.F.R. § 212.7(e)(4)(iii) applies only to the Department of Homeland Security (DHS) and therefore cannot function as an independent source of administrative closure authority for IJs or the BIA.[27] However, Judge Clay argues that administrative closure is “appropriate and necessary for the disposition of a case” per the language of 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) where, as in § 212.7(e)(4)(iii), removal proceedings bar an eligible noncitizen from obtaining an adjustment of status.[28] This would mean that § 212.7(e)(4)(iii) serves as an exception to Castro-Tum’s holding that IJs and the BIA lack general authority to administratively close cases.[29] Because Hernandez-Serrano did not exhaust the argument before the BIA, the majority precluded itself from evaluating it.[30] 

Matter of Garcia De Leon

On June 4, 2021, the Sixth Circuit picked up where Judge Clay left off. At issue in Garcia De Leon v. Garland was a question that evolved from a footnote in Castro-Tum: do IJs and the BIA possess the general authority to administratively close cases when doing so would enable noncitizens seeking a provisional unlawful presence waiver to obtain legal status?[31]

Garcia was placed in removal proceedings for entering the U.S. without inspection, and, while still in removal proceedings, married a U.S. citizen who filed an I-130 petition with USCIS on his behalf.[32] The BIA denied Garcia’s request for administrative closure which, per § 212.7(e)(4)(iii), was necessary to obtain a provisional unlawful presence waiver that would allow him to apply for permanent residency status without being subject to a ten-year bar to entry.[33]

On petition for review, the Sixth Circuit held that, when read in conjunction with § 1003.10(b) and § 1003.1(d)(1)(ii), § 212.7(e)(4)(iii) grants IJs and the BIA authority to administratively close cases so that noncitizens may obtain provisional unlawful presence waivers.[34] The court arrived at its decision by echoing Judge Clay’s dissent in Hernandez-Serrano: because administrative closure enables an eligible noncitizen to obtain an adjustment of status when pending removal proceedings would otherwise prevent him from doing so, the procedure is “appropriate and necessary for the disposition of the case” per § 1003.10(b) and § 1003.1(d)(1)(ii).[35]

Though optimists may see Garcia as sounding the death knell for Castro-Tum’s anti-administrative closure precedent, the Sixth Circuit’s holding appears to be a narrower one: a general administrative closure authority exists, but it may only be exercised for the limited purpose of enabling noncitizens to obtain provisional unlawful presence waivers.[36]

However, by recognizing that § 1003.10(b) and § 1003.1(d)(1)(ii)—in at least one circumstance—endow IJs and the BIA with administrative closure authority, Garcia creates an opening for future advocates to argue that the provisions also authorize use of the tool in analogous scenarios.[37] If removing a case from the docket would increase the likelihood that a noncitizen gains lawful status and that removal proceedings are rendered obsolete, administrative closure is not only “appropriate and necessary for the disposition of the case” — it is a win for the immigration system, the advocate, and, most importantly, the client.[38]