Jeff Sessions Overturns Decades Of Board Precedent By Ending The General Authority Of The Board And Immigration Judges To Grant Administrative Closure

By: Alexander D. McShiras, Senior Attorney with Kirby Gamblin Joseph, ABIL Lawyer
Joseph Law Firm Immigration Blog

In a broad decision, Attorney General Jeff Sessions stripped the power of the Immigration Court and the Board of Appeals to order administrative closure, except in a very narrow set of cases. The decision purports to be retroactive and it requires that any case that is currently administratively closed be re-calendared (put back on the Court’s active docket), upon the motion of the Immigration Judge, the Board, the government, or the Respondent (immigrant). Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).

What does this decision mean in practice and what will the impact be? At a minimum, it will significantly increase the already substantial backlog in immigration courts across the United States. In Denver, most Judges are currently setting individual hearings for 2021 or 2022. It will force immigrants currently in removal proceedings (and not administratively closed) to go forward on their cases with a defense that the Immigration Judge has the power to grant. U-visa, SIJS, and affirmative VAWA cases are examples of forms of relief that the Immigration Judge lacks the power to grant. In these cases, immigrants will have to find an alternative defense and will not be able to seek administrative closure. It means that immigrants currently in removal proceedings (and not administratively closed), will not be eligible for an I-601A provisional waiver. This waiver is only available to immigrants who are not in removal proceedings or to those whose proceedings are administratively closed. Many immigrants have taken advantage of the I-601A provisional waiver because it is sent and decided while the immigrant waits in the United States and it makes the consular processing case less risky.