AG Sessions Continues his Assault on Independence of Immigration Judges - Articles

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Posted by: Kate Tucker & Andrew Hale on Sep 18, 2018

After directing the Board of Immigration Appeals (“BIA”) to refer its decision in the Matter of Castro-Tumfor his review, Attorney General (“AG”) Jeff Sessions subsequently issued a decision significantly restricting the authority of the BIA and immigration judges with regard to their ability to administratively close cases. 27 I&N Dec. 271 (A.G. 2018). In doing so, AG Sessions curtailed a long-standing practice among immigration judges of placing a case in inactive status in order to temporarily suspend removal proceedings. The purpose of such administrative closure was to promote efficiency and due process by enabling respondents to pursue other options (e.g. a path to lawfully remain in the U.S. through an application with the USCIS and/or to allow Immigration and Customs Enforcement (“ICE”) attorneys to exercise prosecutorial discretion with regard to the removal proceeding.  

As brief background, Matter of Castro-Tuminvolved an unrepresented 17-year-old minor, a citizen of Guatemala, who entered the U.S. without inspection in June 2014 and was immediately apprehended by the U.S. Border Patrol. The Department of Homeland Security (“DHS”) commenced removal proceedings but released Respondent into the custody of his brother-in-law. Several court hearings were scheduled; however, Respondent failed to appear at any of them. Expressing concern over the adequacy of the hearing notices, Immigration Judge (“IJ”) Stephen Morley refused to proceed in absentia. Instead, he administratively closed the case pending further evidence from the government with regard to the reliability of the address provided for the respondent.

DHS appealed, and AG Sessions subsequently certified the case to himself for review, purportedly to address the approximately 700,000 case backlog in immigration courts. In justifying his authority to do so, AG Sessions pointed to two different provisions of the Immigration and Nationality Act (“INA”)First, citing 8 U.S.C. § 1103(a)(1), he states “[t]he Attorney General enjoys broad powers with respect to ‘the administration and enforcement of [the INA itself] and all other laws relating to the immigration and naturalization of aliens.’” Second, citing 8 U.S.C. § 1103(g)(2), AG Sessions noted the law grants the Attorney General the authority to “‘establish such regulations,… issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out’ the duty to oversee all law related to the immigration and naturalization of aliens.” This authority includes the power to certify Board decisions for his review under 8 C.F.R. § 1003.1(h)(1). AG Sessions also pointed out that between the choices of rulemaking and adjudication, adjudication is far more efficient. Finally, citing 8 U.S.C. § 1103(a)(1), AG Sessions stated “Congress has provided that ‘determination[s] and ruling[s] by the Attorney General with respect to all questions of law,’ i.e., all questions of law arising under the INA and ‘all other laws relating to the immigration and naturalization of aliens,’ ‘shall be controlling.’” 27 I&N Dec. 271 (A.G. 2018).

In the Castro-Tumopinion, issued on May 13, 2018, AG Sessions affirmed the BIA decision finding that DHS had demonstrated the address was reliable, and remanded the case to Judge Morley with a directive Respondent be removed in absentia if he did not appear at the hearing. But going beyond this specific case, AG Sessions broadly held: 

[I]mmigration 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 had been administratively closed without such authority, the immigration judge or the Board, as appropriate, shall recalendar the case on the motion of either party. 

27 I&N Dec. 271, 272 (A.G. 2018). As mentioned previously, in practical terms one of the primary results of this decision is to prohibit an IJ from administratively closing a case in order to allow respondent time to pursue an application with USCIS that could result in relief from removal and the ability to remain lawfully in the U.S. 

Once Matter of Castro-Tumwas remanded, Judge Morley requested briefs on due process concerns, following which he was replaced with an Assistant Chief Immigration Judge. That judge ultimately ordered removal of Respondent in absentia. In addition to replacing Judge Morley, AG Sessions reassigned over 80 of his cases. This caused an outcry among immigration judges, who subsequently filed a formal labor grievance over the incident. 

The handling of Matter of Castro-Tumillustrates the significant power the Attorney General wields over what is supposed to be an impartial judicial process; this is by virtue of the fact that immigration judges fall under the purview of the executive branch rather than the judicial branch. While the potential conflict of interest created by the unique structure of the immigration court system has long been criticized (resulting in creation of the Executive Office for Immigration Review in the 1980s), Matter of Castro-Tumhighlights the ability of an administration to further its own immigration policies using its position of power over immigration judges. Further, President Trump has made no secret of his opinion regarding the due process rights of undocumented immigrants, tweeting in June 2018 “[w]hen somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.” 

Pursuant to AG Sessions’ decision in Matter of Castro-Tum, cases that have already been administratively closed will remain so unless and until DHS or the respondent moves to recalendar them. To put this in context, there are currently over 350,000 administratively closed cases. Of note, according to guidance issued by ICE in June 2018, DHS does intend to recalendar these cases unless closure was authorized by a regulation or judicially approved settlement agreement. This is not just lip service; according to a recent AILA Practice Pointer, in FY2018 ICE has already acted to recalendar almost 8,000 administratively closed cases. AILA Doc. No. 18082835 (August 28, 2018).Presumably, this will exacerbate the backlog rather than address it as AG Sessions contended when justifying his decision in Matter of Castro-Tum.

The recent AILA Practice Pointer also provides helpful guidance with regard to challenging the Castro-Tumdecision by opposing the recalendaring of an administratively closed case or pursuing administrative closure of an active case, as well as suggesting alternative and/or additional solutions that might apply. AILA Doc. No. 18082835 (August 28, 2018). The guidance includes the procedure for making and preserving a challenge, potential arguments to make, and additional resources to consult for further assistance.

The Castro-Tumdecision is just one of a number of recent administrative actions taken by AG Sessions in his quest to enforce the immigration policies of the Trump administration. While he is certainly not the first Attorney General to utilize the power of that position, he arguably has taken advantage of that power to a greater extent than previous Attorneys General. Further, he has done so quickly and effectively. As the nation’s top law enforcement officer, he is well-positioned to continue to do so unless action is taken to restore the independence of the immigration court system. Many argue that federal legislation overhauling the system is the only way to achieve this goal.

Research for this article was conducted by Andrew Hale, an associate at Kramer Rayson LLP. He earned his J.D. from the University of Tennessee in 2018. 

Kate Tucker is a partner at Kramer Rayson LLP in Knoxville, Tennessee. She earned her J.D. from William and Mary College of Law in 2001, and she is admitted to the state bar of Tennessee and the U.S. District Court, Eastern District of Tennessee. Her practice focuses primarily on business immigration.