Sessions Shuts Down Stealth Amnesty

May 18, 2018

AG agrees with IRLI’s brief attacking administrative closure

WASHINGTON, D.C. — Attorney General Jeff Sessions has ordered an end to a longstanding practice of immigration judges (IJs): administratively closing cases to make them disappear from the docket. Immigration judges did this so often in past administrations that the procedure amounted to a vast amnesty-by-stealth for deportable aliens. When an alien’s case is administratively closed, the alien gets to stay in the United States until the case is reopened—and most such cases, once closed, are never reopened.

The Attorney General noted that out of fourteen briefs he received from various groups, the brief of the Immigration Reform Law Institute (IRLI) was the only one to oppose administrative closure. Again and again, this lopsidedness in briefing is the reality in these cases, with dozens of groups pushing open borders, and IRLI, standing alone, advocating enforcement.

Agreeing with IRLI’s brief, the Attorney General noted that no statute or regulation confers general authority on IJs to employ administrative closure. And Sessions declined to grant IJs this authority. Instead, he expressly overruled prior Board of Immigration Appeals cases that had recognized it.

Sessions’s ruling means that IJs will be unable to use administrative closure except in certain narrow circumstances where its use is provided for in regulations. As for cases that previously have been administratively closed, Sessions ordered that they must be reopened if either party—that is, either the Department of Homeland Security or the alien—so requests. Thus, his ruling ends stealth amnesty going forward, and frees the government to roll back the massive stealth amnesty that has already happened.

“We are pleased that the Attorney General agreed with us and not the thirteen briefs on the other side,” said Dale L. Wilcox, executive director and general counsel of IRLI. “This ruling chokes off an abuse that has gone on far too long: letting deportable aliens stay by making their immigration cases just disappear. Immigration Judges undoubtedly are overworked,” Wilcox added, “but they are charged with applying our immigration laws, and have no authority simply to erase deportable aliens’ cases from the docket. Now the administration’s duty is clear: to step up, recalendar these prior cases, and finally bring them to a conclusion.”

The case is Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).