The Major Shift in Administrative Closure
The pendulum shift of immigration law swings relentlessly. Left, right, or otherwise, you will often find that with immigration law, justice is less blind and more fickle. One major shift occurred when former Attorney General (AG), Jeff Sessions determined that the Board of Immigration Appeals (BIA) and the Immigration Judge (IJ) lack the general authority to temporarily remove low priority cases from their docket; a procedural tool known as Administrative Closure (AC).
Under the former AC guidelines, judges had the authority to allow aliens reasonable opportunity to seek relief of being removed from the country outside of the court. This was a long standing process of court management essential to alleviating the overwhelming court back long. In addition to its practicality, Congress designed the immigration court to function like other Federal Courts under Article 3 of the Constitution; conduct proceedings, administer oaths, receive evidence, interrogate, examine and cross-examine any witness. Then based only on the evidence produced at the hearing, could the IJ decide whether an alien is removable from the United States. Similar to other appellate courts, Congress authorized the BIA to function as an appellate body for the purpose of reviewing the decisions of the IJ and matters directed to them by the AG.
Additionally, Congress gave IJs and the BIA the authority to “decide the individual cases before them subject to the applicable governing standards,” and to “exercise their independent judgment and discretion to take any action appropriate and necessary for the disposition of matters before them”. Sessions’ opposition to interpreting Congress’ mandates in favor of the former AC guidelines is that it impedes the “fair and efficient administration of immigration cases”. Sessions argues that AC under the former guidelines unduly benefits the alien and leaves the Department of Homeland Security (DHS) with the burden of seeking to re-calendar the cases before the IJ. Sessions also pointed out that AC is easier to obtain under the former guidelines.
While immigration can certainly be a point of contention for many people, what is generally not debatable is that there are far more cases to litigate then that are courts to efficiently preside over them. Aliens find themselves in immigration court proceedings for various reasons and in increasing rate. Thus it appears it ought to stand to reason that in the litigation of these cases, every reasonable resource and tool to the disposal of the court and officers thereof should be used to ensure that the administration of justice remains efficient and effective.
Inasmuch as administrative closure is unavailable, immigrants who originally had the opportunity to pursue lawful alternatives for relief of removal, find themselves in a disadvantage in litigating their cases. This is due to the constraints of the court being unable to process every kind of available application, grant certain petitions, grant certain waivers or have jurisdiction over certain matters. It is incumbent on aliens to seek advice from an immigration attorney to assist them in obtaining alternatives to AC such as scheduling a subsequent hearing on the IJ’s calendar, motion to continue, motion to terminate, or filing for dismissal. In the meantime, we brace ourselves for the next time the pendulum swings, as it certainly will.
Kenneth Ejene, Esq., Associate with NeJame Law & Mark NeJame jointly contributed to this article.
Kenneth Ejene, Esq. is an immigration attorney with NeJame Law, P.A. Ken is naturally empathetic. Being raised in Miami, one of the most diverse cities in the United States, and being raised by immigrant parents, has shaped his empathy especially towards the issues that concern immigrants. As such, Ken has a passion towards advocating for the rights of immigrants and human rights for all people.