AG revives immigration judges' power to postpone deportation cases

FILE PHOTO: U.S. Attorney General Merrick Garland announces that the Justice Department will file a lawsuit challenging a Georgia election law, in Washington
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By Daniel Wiessner

(Reuters) - Attorney General Merrick Garland issued a ruling on Thursday restoring the ability of immigration judges to postpone deportation cases while awaiting rulings in related proceedings, which had been eliminated by Trump-era AG Jeff Sessions.

Garland in a four-page opinion https://www.justice.gov/eoir/page/file/1412451/download said Sessions' 2018 ruling in Matter of Castro-Tum, which has been rejected https://www.reuters.com/business/legal/3rd-circuit-backs-immigration-judges-power-close-deportation-cases-2021-05-05/#:~:text=(Reuters)%20-%20A%20U.S.%20appeals,era%20Attorney%20General%20Jeff%20Sessions by three federal appeals courts, improperly parted from decades of practice by concluding that no federal law or regulation authorized so-called "administrative closure."

Garland said that because administrative closure does not terminate or dismiss deportation cases, it is an appropriate tool for immigration judges to manage their busy dockets.

"It also has served to facilitate the exercise of prosecutorial discretion, allowing government counsel to request that certain low-priority cases be removed from immigration judges’ active calendars ... thereby allowing adjudicators to focus on higher-priority cases," Garland wrote.

The decision came in the case of a Mexican national whose 2018 motion to administratively close his deportation case so he could seek an unlawful presence waiver was denied in light of Castro-Tum. Garland reversed that decision and remanded the case for further proceedings.

The Immigration and Nationality Act permits judges and the Board of Immigration Appeals to "take any action ... that is appropriate and necessary for the disposition of (deportation) cases."

Immigration judges have relied on that authority to administratively close cases since at least the 1980s. It is used, for example, when a respondent in a deportation case has a pending visa petition, or non-citizens facing deportation on criminal grounds are pursuing appeals of their convictions.

In December, the U.S. Department of Justice finalized a rule designed to codify Castro-Tum by explicitly prohibiting administrative closure.

A San Francisco federal judge in March issued a nationwide preliminary injunction blocking https://www.reuters.com/article/immigration-doj/judge-blocks-trump-era-doj-rule-limiting-immigration-judges-powers-idUSL1N2L92TQ the rule, saying DOJ had not followed the proper administrative procedures in adopting it.

In Thursday's decision, Garland said the injunction provided further grounds to overturn Castro-Tum pending DOJ's reconsideration of the December rule.

Moving forward, Garland wrote, immigration judges and the BIA should use the standard adopted in the 2012 case Matter of Avetisyan to decide whether administrative closure is appropriate.

That Obama-era decision requires judges to consider the likelihood that a respondent will succeed in immigration proceedings and the anticipated duration of the closure, among other factors.

The case is Matter of Cruz-Valdez, U.S. Department of Justice, Office of the Attorney General, Interim Decision No. 4022.

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