“Waiting Game” by Pro Publica – immigrationcourtside.com

⚖️EOIR GUIDANCE ON ADMINISTRATIVE CLOSING — GOOD, BUT COULD HAVE BETTER! —Why Is A Non-Judge Director (“Senior Court Administrator”) Issuing Non-Binding “Guidance” That Should Have Been In BIA Precedents?

https://www.justice.gov/eoir/book/file/1450351/download

PURPOSE:

OOD DM 22-03

Issued: Nov. 22, 2021 Effective: Immediately

ADMINISTRATIVE CLOSURE

Provide guidance to adjudicators on administrative closure in light of Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021)

David L. Neal, Director 8 C.F.R. § 1003.0(b)

On July 15, 2021, the Attorney General issued a precedential decision in Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021). In that decision, the Attorney General restored the authority of immigration judges and the Board of Immigration Appeals (Board) to administratively close cases. This memorandum discusses the practical implications of the Attorney General’s decision, particularly in light of the Executive Office for Immigration Review’s (EOIR) pending caseload.

II. Administrative Closure to Date

Administrative closure “is a docket management tool that is used to temporarily pause removal proceedings.” Matter of W-Y-U-, 27 I&N Dec. 17, 18 (BIA 2017). An immigration judge’s or appellate immigration judge’s administrative closure of a case “temporarily remove[s] [the] case from [the] Immigration Judge’s active calendar or from the Board’s docket.” Matter of Avetisyan, 25 I&N Dec. 688, 692 (BIA 2012). Administrative closure came into widespread use by EOIR adjudicators in the 1980s. Cases have been administratively closed for a variety of reasons over the years, and the Board has issued several decisions addressing when administrative closure is appropriate. The Board’s two most recent such decisions are Matter of Avetisyan and Matter of W-Y-U-, issued in 2012 and 2017, respectively.

In 2018, Attorney General Sessions issued Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). He held that, with limited exceptions, “immigration judges and the Board do not have the general authority” to administratively close cases. Matter of Castro-Tum, 27 I&N Dec. at 272. The Third, Fourth, Sixth, and Seventh Circuits subsequently ruled on challenges to Matter of Castro- Tum. A circuit split emerged, with the Third, Fourth, and Seventh Circuits holding that

OWNER:

AUTHORITY: CANCELLATION: None

I. Introduction

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adjudicators have the general authority to administratively close cases,1 but with the Sixth Circuit holding that adjudicators have the authority to administratively close cases only in limited circumstances.2 In 2020, the Department of Justice (Department) promulgated a final rule that essentially codified Matter of Castro-Tum, restricting EOIR adjudicators’ ability to administratively close cases. See “Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure,” 85 Fed. Reg. 81588 (Dec. 16, 2020). However, this rule has been preliminarily enjoined nationwide. See Centro Legal de La Raza v. Exec. Office for Immigration Review, 524 F.Supp.3d 919 (N.D. Cal. Mar. 10, 2021).

In Matter of Cruz-Valdez, the Attorney General noted that Matter of Castro-Tum “departed from long-standing practice” by prohibiting administrative closure in the vast majority of circumstances. Matter of Cruz-Valdez, 28 I&N Dec. at 329. He also noted that the Department is “engaged in a reconsideration” of the enjoined 2020 rule. Id. Given these factors, the Attorney General, in Matter of Cruz-Valdez, “overrule[d] [Matter of Castro-Tum] in its entirety,” and he “restore[d] administrative closure” pending the current rulemaking. Id. He specified that, in deciding whether to administratively close cases pending the rulemaking, “except when a court of appeals has held otherwise, immigration judges and the Board should apply the standard for administrative closure set out in Avetisyan and W-Y-U-.” Id.

III. Administrative Closure after Matter of Cruz-Valdez

With administrative closure restored, EOIR adjudicators have the authority, under the Board’s case law, to administratively close a wide variety of cases. Going forward, pending the promulgation of a regulation addressing administrative closure, adjudicators must evaluate requests to administratively close cases under Matter of Avetisyan and Matter of W-Y-U-, as well under as the Board’s case law predating those decisions, to the extent that case law is consistent with those decisions. Adjudicators should accordingly familiarize themselves with Matter of Avetisyan, Matter of W-Y-U-, and the Board’s prior case law addressing administrative closure.

The restoration of administrative closure will assist EOIR adjudicators in managing their dockets given EOIR’s caseload. In Matter of Cruz-Valdez, the Attorney General recognized that administrative closure has in the past “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 or the Board’s docket, thereby allowing adjudicators to focus on higher-priority cases.” Matter of Cruz-Valdez, 28 I&N Dec. at 327. EOIR has finite resources and a daunting caseload. Given this reality, it is important that adjudicators focus on two categories of cases: those in which the Department of Homeland Security (DHS) deems the respondent to be an immigration enforcement priority,3 and those in which the respondent

1 See Arcos Sanchez v. Att’y Gen., 997 F.3d 113, 121-24 (3d Cir. 2021); Meza Morales v. Barr, 973 F.3d 656, 667 (7th Cir. 2020); Romero v. Barr, 937 F.3d 282, 292-94 (4th Cir. 2019).

2 Specifically, the Sixth Circuit initially held that the regulations do not delegate to immigration judges or the Board the general authority to administratively close cases. Hernandez-Serrano v. Barr, 981 F.3d 459, 466 (6th Cir. 2020) . But the Sixth Circuit later held that the regulations provide adjudicators “the authority for administrative closure” to allow respondents to apply with U.S. Citizenship and Immigration Services for provisional unlawful presence waivers. Garcia-DeLeon v. Garland, 999 F.3d 986, 991 (6th Cir. 2021).

3 Effective November 29, 2021, DHS’s immigration enforcement priorities are noncitizens DHS deems to pose risks to national security, public safety, and border security. See Memorandum from Alejandro N. Mayorkas, Secretary,

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desires a full adjudication of his or her claim or claims. Being able to administratively close low priority cases will help adjudicators do this.

Under case law, where DHS requests that a case be administratively closed because a respondent is not an immigration enforcement priority, and the respondent does not object, the request should generally be granted and the case administratively closed. See Matter of Yewondwosen, 21 I&N Dec. 1025, 1026 (BIA 1997) (stating that the parties’ “agreement on an issue or proper course of action should, in most instances, be determinative”); Matter of Cruz-Valdez, 28 I&N Dec. at 327 (recognizing the role of administrative closure in “facilitat[ing] the exercise of prosecutorial discretion”).

Administrative closure is appropriate in many other situations as well. For example, it can be appropriate to administratively close a case to allow a respondent to file an application or petition with an agency other than EOIR. See Matter of Avetisyan, 25 I&N Dec. at 696 (identifying “the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings” as a factor for adjudicators “to weigh” in evaluating requests for administrative closure); 8 C.F.R. § 212.7(e)(4)(iii) (permitting a respondent in removal proceedings to file a Form I-601A, Application for Provisional Unlawful Presence Waiver, with U.S. Citizenship and Immigration Services where the “proceedings are administratively closed and have not yet been recalendared at the time of filing the application”). It can also be appropriate to administratively close a case while an agency adjudicates a previously filed application or petition, or, if a visa petition has been approved, while waiting for the visa to become available. See Matter of Avetisyan, 25 I&N Dec. at 696. It is generally appropriate to administratively close a case where a respondent has been granted temporary protected status. See Matter of Sosa Ventura, 25 I&N Dec. 391, 396 (BIA 2010). This is only a partial list; administrative closure can be appropriate in other situations not mentioned here. See Matter of Avetisyan, 25 I&N Dec. at 696 (stating that each request for administrative closure “must be evaluated under the totality of the circumstances of the particular case”).

Where a respondent requests administrative closure, whether in a scenario described above or another scenario where administrative closure is appropriate, and DHS does not object, the request should generally be granted and the case administratively closed. See Matter of Yewondwosen, 21 I&N Dec. at 1026. Where a request for administrative closure is opposed, “the primary consideration . . . is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” Matter of W-Y-U-, 27 I&N Dec. at 20. But adjudicators should bear in mind that “neither party has ‘absolute veto power over administrative closure requests.’” Id. at n. 5 (quoting Matter of Avetisyan, 25 I&N Dec. at 692).

Where at all possible, issues involving administrative closure should be resolved in advance of individual calendar hearings and not at hearings. Immigration judges are therefore encouraged to send scheduling orders to parties well before the hearing takes place, inquiring of DHS whether the respondent is an immigration enforcement priority, and otherwise soliciting the parties’ positions on administrative closure and other issues related to prosecutorial discretion. Where

Guidelines for the Enforcement of Civil Immigration Law (Sept. 30, 2021), available at https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf.

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such issues have not been resolved in advance of an individual calendar hearing, the immigration judge should ask DHS counsel on the record at the beginning of the hearing whether the respondent is an immigration enforcement priority. Where DHS counsel responds that the respondent is not a priority, the immigration judge should further ask whether DHS intends to exercise some form of prosecutorial discretion in the case. As part of this colloquy, the 4 immigration judge should ask whether the parties want the case administratively closed.

IV. Conclusion

Administrative closure is a longstanding, and valuable, tool for EOIR adjudicators. As the Attorney General noted in Matter of Cruz-Valdez, the Department is currently engaged in rulemaking that will address adjudicators’ authority to administratively close cases. Pending that rulemaking, adjudicators have the authority under Matter of Cruz-Valdez to administratively close many cases before them when warranted under Board case law. Adjudicators should familiarize themselves with the situations in which administrative closure is appropriate, and adjudicators should be proactive in inquiring whether parties wish for cases to be 5 administratively closed. If you have any questions, please contact your supervisor.

4 There is one potential caveat to the guidance and instructions in this section. As noted above, the Attorney General stated that, pending the promulgation of a regulation addressing administrative closure, immigration judges and the Board should apply the Board’s case law “except when a court of appeals has held otherwise.” Matter of Cruz- Valdez, 28 I&N Dec. at 329. For cases arising in the Sixth Circuit, adjudicators must determine to what extent administrative closure is permitted given that court’s case law, and they must handle issues involving administrative closure accordingly. See Garcia-DeLeon, 999 F.3d 986; Hernandez-Serrano, 981 F.3d 459.

5 This memorandum does not create any legal rights or benefits for either party, and it does not mandate that a particular motion for administrative closure be granted or denied. In all cases, immigration judges and appellate immigration judges must exercise their independent judgment and discretion in adjudicating motions for administrative closure consistent with the law. See 8 C.F.R. §§ 1003.1(d)(1)(ii), 1003.10(b).

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WHAT SHOULD HAVE HAPPENED: Garland should have appointed the “Chen-Markowitz BIA” and empowered them to aggressively clean up the backlog, using administrative closing among others tools (such as referral to USCIS and more favorable precedents requiring the granting of relief in meritorious cases).

https://immigrationcourtside.com/2021/02/04/its-not-rocket-science-%f0%9f%9a%80-greg-chen-professor-peter-markowitz-can-cut-the-immigration-court-backlog-in-half-immediately-with-no-additional-resources-and/

In a properly functioning quasi-judicial system, this same “guidance” should have come in a series of BIA precedents that would require BIA panels and the Article IIIs to enforce compliance among recalcitrant Immigration Judges. That could be accompanied by unilateral action by the BIA to close “deadwood” cases on the appellate docket. Either party could request re-docketing, with a justification. (Hint: In my BIA career, we closed thousands of cases of this way and I could count on one hand the number of “redocketing” motions we received.) Also, in a better system, the Immigration Judges already would be aggressively taking these “common sense” steps. Precedents properly applying asylum, withholding, and CAT would be cutting into the largely “manufactured” backlog.

WHAT ACTUALLY HAPPENED: Typical Dem timid approach.

Unless the BIA actually believes in this “guidance” (doubtful, given it’s current “packing” with notorious anti-immigrant judges by Sessions and Barr, unaddressed by Garland) and is willing to enforce it and incorporate it into precedents, it won’t achieve its objective of promoting fairness and efficiency! Nor will it significantly reduce the backlog.

Perhaps the “rulemaking” referenced in Director Neal’s memo will solve the problem. But, EOIR’s history of completing such rulemaking, particularly in Dem Administrations, has been less than stellar. See, e.g., Gender-Based Asylum Regs (3 Dem Administrations, 0 Regs); Ineffective Assistance of Counsel Regs (2 Dem Administrations, 0 Regs).

One problem: Dem Administrations often feel compelled to engage in false “dialogue,” look for an unachievable “consensus,” and pay attention to public comments; GOP Administrations simply plow ahead with their preconceived agenda without regard to expert input, public opinion, or empirical data.

Consequently, although Dems have failed over more than two decades to finalize final gender-based asylum regulations, Stephen Miller was able to publish outrageous final regulations eliminating more than two decades of gender-based case law progress in a few months. Fortunately, those regs were promptly enjoined!

Over the past two decades, the GOP has radically “weaponized” EOIR as an enforcement tool. Dems have pretended not to notice and have squandered at least nine years of basically “unrestricted” opportunities to restore some semblance of due process, sanity, and humanity @ EOIR! As my friend Karen Musalo said in her recent LA Times op-ed, “actions speak louder than words.”

EOIR’s latest “actions,” while better than nothing, are unnecessarily ineffective.This is supposed to be a “court system,” not a bureaucratic “agency,” run by “policy directives” and a top-heavy, bloated bureaucracy with fancy-titled “supervisors” and superfluous “program managers.”

Until we get an Attorney General who considers migrants to be persons (humans), views immigrant justice as important, understands what a court is, how it operates, and has the guts to install the practical progressive experts who can make it happen, EOIR will continue to be an embarrassment to American justice.

🇺🇸Due Process Forever!

PWS

11-27-21

PRO PUBLICA: HOW OUR GOVERNMENT HAS CYNICALLY TURNED WHAT SHOULD BE A GENEROUSLY ADMINISTERED, LIFE-SAVING, PROTECTION-GRANTING ASYLUM SYSTEM INTO A “GAME OF CHANCE” WITH POTENTIALLY FATAL CONSEQUENCES FOR THE HAPLESS & VULNERABLE “PLAYERS!” –Play The “Interactive Version” Of “The Game” Here – See If You Would Survive or Perish Playing “Refugee Roulette!”

https://projects.propublica.org/asylum/#how-asylum-works

Years-long wait lists, bewildering legal arguments, an extended stay in detention — you can experience it all in the Waiting Game, a newsgame that simulates the experience of trying to seek asylum in the United States. The game was created by ProPublica, Playmatics and WNYC. Based on the true stories of real asylum-seekers, this interactive portal allows users to follow in the footsteps of five people fleeing persecution and trying to take refuge in America.

The process can be exhausting and feel arbitrary – and as you’ll find in the game, it involves a lot of waiting. Once asylum-seekers reach America, they must condense complex and often traumatic stories into short, digestible narratives they will tell again and again. Their lives often depend on their ability to convince a judge that they are in danger. Judicial decisions are so inconsistent across the country, success in complicated cases can come down to geography and luck — in New York City only 17 percent of asylum cases are denied in immigration court; in Atlanta, 94 percent are. Increasingly, many asylum-seekers are held in detention for months or even years while going through the system. The immigration detention system costs more than $2 billion per year to maintain.

The Trump administration has tried to reframe the asylum system as a national security threat and a magnet for illegal immigration. Attorney General Jeff Sessions characterizes the American asylum process as “subject to rampant abuse” and “overloaded with fake claims.” He has aimed recent reforms at expediting asylum adjudications to speed up deportations and at making it more difficult for certain groups to qualify for protection, such as Central Americans who claim to fear gender-based violence or gang persecution.

The narrative that the system is overrun with fraud has long been pushed by groups that favor limiting immigration overall. They point to some 37 percent of asylum-seekers who annually miss their immigration hearings as evidence that people without legitimate fears of persecution game the system. They argue that allowing asylum-seekers to obtain work permits while they wait for a decision on their cases — which sometimes takes years — incentivizes baseless claims.

But another picture emerged when ProPublica spoke with more than 20 experts and stakeholders who study and work in the asylum system, including lawyers, immigration judges, historians, policy experts, an asylum officer, a former border patrol agent and a former ICE prosecutor.

When asked about changes to the system they’d like to see, many suggested providing asylum-seekers with better access to lawyers to support due process, expanding the definition of a refugee to cover modern-day conflicts,providing more resources to help the system process claims in a timely manner, and improving judicial independence by moving immigration courts out of the Department of Justice.

Most acknowledged some level of asylum-claim abuse exists. “In any system, of course, there are going to be some bad actors and some weaknesses people seek to exploit,” said Doris Meissner, the former commissioner of the U.S. Immigration and Naturalization Service from 1993 to 2000.

But they also argued for the importance of protecting and improving a national program that has provided refuge to hundreds of thousands of people. “If you are going to make a mistake in the immigration area, make this mistake,” said Bill Hing, director of the University of San Francisco’s Immigration and Deportation Defense Clinic. “Protect people that may not need protecting, but don’t make the mistake of not protecting people who need it.”

Victor Manjarrez, a former border patrol agent from the 1980s until 2011, said he had seen human smuggling networks exploit the border over the years, but also many people who genuinely needed help.

“We have a system that’s not perfect, but is designed to take refugees. That is the beauty of it,” he said. “It has a lot of issues, but we have something in place that is designed to be compassionate. And that’s why we have such a big political debate about this.”

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Read the narrative and play the interactive “Waiting Game” at the above link!

Getting refuge often depends on getting the right:

Border Patrol Agent an Asylum Officer to even get into the system;
Lawyer;
Local Immigration Court;
Immigration Judge;
DHS Assistant Chief Counsel;
BIA Panel;
U.S. Court of Appeals jurisdiction;
U.S. Court of Appeals Panel;
Luck.

If something goes wrong anywhere along this line, your case could “go South,” even if it’s very meritorious.

I also agree with Professor Hing that given the UNHCR guidance that asylum applicants ought to be given “the benefit of the doubt,” the generous standard for asylum established by the Supremes in INS v. Cardoza-Fonseca and implemented by the BIA in Matter of Mogharrabi, and the often irreversible nature of wrongful removals to persecution, the system should be designed to “error on the side of the applicant.”

Indeed, one of the things that DHS in my experience does well is detecting and prosecuting systemic asylum fraud. While a few individuals probably do get away with tricking the system, most “professional fraudsters” and their clients eventually are caught and brought to justice, most often in criminal court. Most of these are discovered not by “tough laws” or what happens in Immigration Court, but by more normal criminal investigative techniques: undercover agents, tips from informants, and “disgruntled employees or clients” who “blow the whistle” in return for more lenient treatment for themselves.

Hope YOU get protected, not rejected!

PWS

04-23-18

🇺🇸Due Process Forever!

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