On May 17, 2017, U.S. Attorney General Jeff Sessions, issued an order to prevent immigration judges from administratively closing immigration court cases in most circumstances. The Attorney General’s decision will have a major impact on many immigration courts, as well as many immigration cases.
Administrative closure is a procedure regularly used by immigration judges to temporarily halt immigration proceedings. When a case is administratively closed, an immigration judge removes the case from the active docket. Cases are usually administratively closed so that an immigrant can obtain an immigration benefit that is not available while an immigration case is active. Examples of this include adjusting status to a lawful permanent resident (Form I-485), or filing an I-601A waiver. Generally, either the immigrant or the Government may move to administratively close a case. Once a case is administratively closed, the case can be re-opened by a motion of either the Government or the immigrant.
On January 4, 2018, the Attorney General directed the Board of Immigration Appeals to refer Matter of Castro-Tum (27 I&N Dec. 271 (A.G.2018)) to the Attorney General, so that he could review and rule on the decision. In Mater of Catro-Trum, an immigration judge ordered a case administratively closed over the objection of DHS. In his decision, the Attorney General held that immigration judges and the Board of Immigration Appeals, do not “have the general authority to suspend indefinitely immigration proceedings by administrative closure”. Id. at 271. Instead, the Attorney General found that a case may only be administratively closed where either: (1) a previous regulation; or (2) a court settlement allows. Id.
The Attorney General’s decision will have a profound impact on immigration courts. First, the decision will lead to a dramatic increase in the number of cases in immigration court. At of the end of 2017, there were over 300,000 active cases which had been administratively closed. In his decision, the Attorney General said that these cases would gradually be added back onto active court dockets. In addition, many cases which would have been administratively closed, will no longer be administratively closed. As a result, the dockets of the immigration courts will dramatically expand. This will lead to significant delays in how fast cases can be heard.
Second, and more important, this decision will have a major impact on two types of cases. First, it will effect individuals trying to adjust status and become a lawful permanent resident. Currently, USCIS does not have jurisdiction to adjudicate adjustment of status applications when an individual is in immigration court proceedings. Immigration judges routinely administratively close cases after a Form I-130 is approved, so that an immigrant may file Form I-485 with USCIS. Under the Attorney General’s ruling, this will no longer be allowed. Instead, immigration judges will have to adjudicate the I-485. This will lead to significant delays in individuals obtaining their green cards, because USCIS is able to process adjustment of status applications much faster than immigration judges.
Second, the Attorney General’s decision will effect individuals seeking an I-601A waiver (Provisional Unlawful Presence Waiver). An I-601A waiver is needed for individuals seeking a green card who initially entered the United States illegally. These individuals are not eligible to adjust status while in the United States, and must instead seek a green card overseas. These individuals need a waiver before they may be granted a green card. An I-601A waiver can be approved while the individual is in the United States, before they go outside the country to get their green card. This means that these individuals do not have to spend significant amounts of time outside the country.
However, a I-601A waiver may not be processed while a immigration case is pending. As a result, judges routinely administratively close cases so that an immigrant may file a I-601A waiver. Under the Attorney General’s ruling, courts will no longer be allowed to administratively close cases so that a I-601A waiver may be filed. This means, that most individuals will be forced to leave the United States, and file the waiver while they are outside the country. This will lead to individuals who in the past would have only had to spend a few weeks outside the country to get their green card, spending over a year outside the country.