November 10, 2023
The practice makes courts no more efficient, and lets illegal aliens stay
|WASHINGTON—In a public comment filed with the U.S. Department of Justice’s Executive Office for Immigration Review (EOIR) the Immigration Reform Law Institute (IRLI) opposed EOIR’s proposed administrative rule that the agency claims more clearly authorizes “administrative closure” of pending deportation cases.|
EOIR operates the nation’s immigration courts and the primary immigration appeals tribunal, the Board of Immigration Appeals. EOIR judges decide hundreds of thousands of cases annually, but the office has a backlog that has grown into millions of pending cases. EOIR backlogs are a major roadblock to removals of illegal aliens. That roadblock causes chronic delays in final decisions for millions of qualified aliens, who must wait in a legal limbo for years.
Administrative closure is a practice where an immigration case is “closed” but not decided on the merits, and removed from EOIR’s active docket of pending cases. In essence, administrative closure means the case is closed even though an alien remains in the country illegally, though it could in theory be re-opened in the future. The practice has exploded over the past few decades but, as IRLI’s comment clearly shows, despite EOIR’s assertions, it is both illegal and does nothing to make the immigration courts more “efficient.”
Astoundingly, as IRLI’s comment notes, administrative closure is something Congress has never authorized by law, even as the practice has become ever more common. Indeed, the Immigration and Nationality Act (INA) makes clear that Congress has consistently intended for immigration cases to be litigated to their conclusion on the merits as quickly as possible, a goal that administrative closure directly undermines.
“If the Biden administration were serious about reducing the stunning Immigration Court backlog, it wouldn’t be proposing policies that encourage Immigration Judges to send cases into limbo, where they often linger unresolved for decades,” said Matt O’Brien, IRLI’s director of investigations.
“This rule is another move by the administration that accomplishes nothing and actually makes the problem worse,” said Dale L. Wilcox, IRLI’s executive director and general counsel. “Just reclassifying cases does nothing to resolve them. Meanwhile, those here illegally are allowed to stay. We urgently need actions that address our very real and enormous problems, not more bureaucratic sleight of hand.”
The Notice of Proposed Rulemaking is EOIR-21-0410, Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, published at 88 Fed. Reg. 62242 on September 8, 2023.
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