Matter of Castro-Tum Decision: A.G. Sessions Continues to Peel Back the Facade of Quasi-Judicial Ind

In Matter of Reynaldo CASTRO-TUM, 27 I&N Dec. 187 (A.G. 2018), Attorney General Sessions referred the decision of the Board of Immigration Appeals ("BIA") to himself for review of issues relating to the authority to administratively close immigration proceedings, ordering that the case be stayed during the pendency of his review. Following receipt of amici briefs through February 16, 2018, and response briefs by the parties through February 23, 2018, the A.G. issued a decision on May 17, 2018.

In his decision of yesterday (27 I&N Dec. 271 (A.G. 2018)), Sessions held that immigration judges and the BIA do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. Accordingly, immigration judges and the BIA may only administratively close a case where a previous regulation or a previous judicially approved settlement expressly authorizes such an action. Where a case has been administratively closed without such authority, the immigration judge or the BIA, as appropriate, must recalendar the case upon motion by either party.

The decision expressly overrules Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), and any other BIA precedent, to the extent those decisions are inconsistent with the opinion.

Through this decision, the Attorney General continues to strip the quasi-judicial immigration courts of any remaining independent decision-making. Seasoned immigration judges can no longer use their discretion to decide whether to administratively close proceedings for worthwhile reasons - as a fair and efficient docket management tool for an already overloaded system or as a due process mechanism for eligible foreign nationals seeking various forms of relief from removal such as stateside waivers (which cannot by regulation be granted without administrative closure). The National Association of Immigration Judges ("NAIJ") issued a letter to A.G. Sessions in January stating that there are "many aspects of the Immigration Court system which would benefit from review and reform, however [administrative closure] is not one of them. The current framework is operating properly and should not be disturbed." Ignoring the plea by his own judges to leave this helpful administrative tool intact, the Attorney General has made the unfortunate choice of overturning Avetisyan logic and further eroding both judicial discretion and due process for foreign nationals.

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