On July 15th, 2021, in the matter of Cruz-Valdez (Respondent), Attorney General Merrick Garland overruled the decision in the matter of Castro-Tum in its entirety, given by Attorney General Jeff Sessions in 2018. The new ruling has reinstated the immigration judges’ power to postpone deportation cases if a decision or ruling is pending in the related immigration cases. This article will provide an insight into the previous ruling, the facts of the present case, and what was overruled.
TABLE OF CONTENT
- EVENTS AFTER SESSION’S RULING
- FACTS OF THE PRESENT CASE
- WHAT WAS OVERRULED IN CRUZ-VALDEZ RULING?
In 2018, Attorney General Jeff Sessions concluded that the administrative closure (which is a tool used by the immigration judges to manage their busy dockets by temporarily pausing removal proceedings. The tool does not dismiss or terminate the deportation cases. Still, instead, it just removes a case from an Immigration Judge’s active calendar or from the board’s docket) was not authorized to an Immigration judge by any statute, regulation, or delegation from the Attorney General.
Session has based his conclusion that neither 8 C.F.R. §§ 1003.10(b) nor 1003.1(d)(1)(ii) provides the immigration judges or the Board power of administrative closure. 8 C.F.R. §§ 1003.10(b) nor 1003.1(d)(1)(ii) provides that the immigration judges or the Board may take any action consistent with their authorities under the Immigration and Nationality Act that is appropriate and necessary for the disposition of such deportation cases.
Sessions held that giving administrative closure to the immigration judges could lead to the indefinite suspension of the deportation cases, and disposition could not happen. Therefore he ruled that immigration judges cannot assume power of administrative disclosure.
EVENTS AFTER SESSION’S RULING
After the Castro-Tum ruling given by Attorney General Jeff Session, the 3rd Circuit, 4th Circuit, and 7th Circuit has rejected the conclusion and opined that the Immigration Judge holds the power of administrative closure.
The 6th Circuit has upheld the Castro-Tum ruling; however, despite that, it formed an opinion that the board and immigration judges have the power of administrative closure so that a noncitizen can apply for a provisional unlawful presence waiver.
The US Department of Justice issued a final rule in December that codifies Castro-Tum by expressly prohibiting administrative closure and aimed at resolving the conflict between the court of appeals. In March, a federal court in San Francisco issued a nationwide preliminary injunction halting the rule, alleging that the Department of Justice did not follow appropriate administrative procedures in adopting it.
FACTS OF THE PRESENT DEPORTATION CASES
Respondent, a Mexican citizen, sought before the immigration court to have his case administratively closed while he filed an application with USCIS for a Provisional Unlawful Presence Waiver. If approved, the application would temporarily waive the illegal presence basis of inadmissibility, enabling the respondent to travel to Mexico to complete his visa at a consulate before returning to the United States.
According to USCIS rules, noncitizens who are facing removal proceedings are ineligible for provisional illegal presence waiver “unless their removal proceedings are administratively closed and have not been rescheduled at the time of filing the application.”
Both the Immigration Judge and Board on appeal have denied the motion for administrative closure, stating that they are foreclosed to grant administrative closure by the Attorney General Jeff Session’s opinion in Castro-Tum.
WHAT WAS OVERRULED IN CRUZ-VALDEZ RULING?
In this case, Attorney General Merrick Garland has overruled Attorney General Jeff Session’s opinion in Castro-Tum. He deems it appropriate to overrule because the decision given by the immigration judge and the board on appeal rejecting the respondent’s motion for administrative closure was formed because of the Castro-Tum ruling.
Garland also opined that the immigration courts and the BIA should use the criteria established in the 2012 case Matter of Avetisyan when determining the appropriateness of administrative closure. The factors specified in the Avetisyan case were:
(1) the reason administrative closure is sought;
(2) the basis for any opposition to administrative closure;
(3) the likelihood the respondent will succeed on any petition, application, or other action they are pursuing outside of removal proceedings;
(4) the anticipated duration of the closure;
(5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and
(6) the outcome of removal proceedings . . . when the case is re-calendared before the Immigration Judge or the appeal is reinstated before the board.
The Castro-Tum ruling departed from long-standing practice; Attorney General Merrick Garland deemed it appropriate to overrule that ruling in its entirety and reinstate the power of administrative closure to immigration judges and the board. And, the immigration judges and the board on appeal should use the standards laid down in Avetisyan to decide whether a specific case requires administrative disclosure or not.