Attorney General Jeff Sessions on Friday launched a review of a little-known but widely used practice of immigration judges closing cases without decisions, potentially reshaping immigration courts and putting hundreds of thousands of people in greater legal limbo.
Sessions posed detailed questions challenging the use of “administrative closures,” an increasingly common outcome that allows people to stay in the country without legal status. The attorney general invited feedback from advocates and others, after which time he may issue new instructions for immigration judges nationwide.
Administrative closures have been a lifeline to immigrants who apply for citizenship, permanent residency or other visas, shielding them from deportation while their petitions are vetted. But critics say judges too often let people stay in the country longer than they should in a sort of legal purgatory.
About 350,000 cases are administratively closed, and the Justice Department said 180,000 cases were closed in four years of the Obama administration, more than in the previous 22 years. In 2012, the department’s Board of Immigration Appeals ruled that neither Homeland Security Department attorneys seeking to deport someone nor the immigrant trying to stay could stop a judge from closing a case, paving the way for the increase.
Immigration judges are employees of the Justice Department’s Executive Office for Immigration Review, giving the attorney general broad oversight powers even as they assert independence. Sessions, a former U.S. senator from Alabama and immigration hardliner, signaled last month that he planned to be heavily involved in setting policies aimed at reducing a court backlog of 650,000 cases and deciding cases more quickly, and Friday’s announcement was a step in that direction.
The review of cases that had been administratively closed could add substantially to the number of 650,000 open cases in the court backlog.
Sessions intervened Friday in the case of one immigrant, Reynaldo Castro-Tum, to launch a review that may affect every judge. He asked what authority judges have to issue administrative closures and under what criteria, whether he should revoke that authority and whether there is another mechanism to address legitimate concerns. He also questioned whether judges should revisit the 350,000 cases currently closed if he decides the practice is unwarranted.
The attorney general asked Homeland Security, Castro-Tum and outside parties to submit written responses by Feb. 9.
Sessions’ predecessors have intervened in individual cases for decades to set policy but the authority is rarely exercised and the cases are often narrower in scope.
In a memo to the roughly 350 immigration judges and staff last month, Sessions said he disagreed with “a steady stream of criticism that we are overwhelmed and that the backlog is intractable” and put them on notice that change was coming. He said judges should quickly resolve “meritless cases or motions” and warned them against unwarranted delays.
“While we continue to hire additional immigration judges and support personnel to address these challenges, we must all work to identify and adopt — consistent with the law — additional procedures and techniques that will increase efficiencies, and ensure the timely and proper administration of justice.”
The American Immigration Lawyers Association, responding to Sessions’ comments at the time, called for immigration judges to be independent of the Justice Department, saying they should be free of “any undue influence or arbitrary case completion requirements.”
The department’s Board of Immigration Appeals can overturn a judge’s decision. The board’s decisions can be appealed in federal court, but relatively few cases advance that far.