By Gianna Borroto | Sep 14, 2023
The Department of Justice has proposed a new rule to protect immigration judges’ ability to administratively close removal proceedings and control their ever-expanding dockets.
The proposed rule, published on September 8, would also rescind most of the changes introduced by a 2020 Trump-era regulation, including shortened Board of Immigration Appeals briefing schedules and limits on judges’ power to reopen immigration proceedings.
Unlike a memo or other guidance that can be easily revoked under a new administration, making these changes through a regulation makes it more difficult for them to be reversed, outside of court intervention.
According to DOJ, the proposals promote efficiency, give immigration judges and the BIA increased flexibility to manage their dockets, and protect due process for immigrants in removal proceedings. The public has until November 7, 2023 to submit comments, which the government should consider before issuing a final version of the regulation.
One key part of the new proposed rule explicitly authorizes immigration judges to administratively close removal cases. Administrative closure is an important tool that allows immigration judges to pause removal proceedings and temporarily remove a case from the court’s docket.
Administrative closure is commonly used so that a person can pursue a form of relief only available through U.S. Citizenship and Immigration Services, such as visas for survivors of certain crimes. Administrative closure can also be used as a form of prosecutorial discretion, indefinitely pausing removal proceedings in cases where the person is not a priority for immigration enforcement.
Under the new proposed rule, the immigration judge should generally grant the request when both parties request administrative closure. The rule makes clear that a pending application for immigration relief is not required. If only one party requests it, the immigration judge must weigh the situation as a whole and consider a “nonexhaustive” list of factors. This will include the reason for the other party’s opposition and the ultimate expected outcome of the case.
The proposed changes come in response to a Trump-era rule issued as part of a flurry of midnight rulemaking in December 2020. Commonly known as the Administrative Procedures Rule, the 2020 regulation imposed new requirements on the immigration courts and the BIA. The requirements limited adjudicators’ discretion to control their case dockets and eroded noncitizens’ due process rights under the guise of expediency.
In addition to eliminating administrative closure in most cases, the 2020 rule required the BIA to set simultaneous briefing schedules for all appeals. Making noncitizens and the government file their briefs at the same time instead of consecutively made it much more difficult for people to understand and respond to the government’s arguments against them, since they typically could not read the government’s brief until after their own brief was due. The rule also limited briefing extensions at the BIA from a maximum of 90 days to only 14 days.
These changes were strongly criticized by immigration attorneys, who said the timeframes were unworkable and unfair. This was especially true for unrepresented individuals who need extra time to find an attorney to help with their appeal.
The rule was in place briefly before being blocked by a federal court in March 2021. Since the Trump-era rule has not been in effect since then, the Biden administration’s newly proposed rule seeks to maintain the current status quo for the most part, while making it more difficult for future administrations to renege on its protections.
But the 2020 Administrative Procedures rule was not the Trump administration’s only attempt to eliminate administration closure. In 2018, then-Attorney General Sessions issued his decision in Matter of Castro Tum, which severely restricted immigration judges’ ability to administratively close most cases. Though several federal courts of appeals rejected Castro Tum, the decision remained in place until July 2021, when Attorney General Garland overturned it.
The Trump administration’s multiple attempts to end administrative closure show the importance of issuing this proposed rule. Protecting administrative closure through a regulation is a welcome move to reinforce due process rights for immigrants and ensure that a future administration cannot easily disturb immigration judges’ ability to control their overburdened dockets.