NCALJ News

Immigration Judges/Independence/Inferiority Issue

Decisions of Attorney General Sessions certifying cases to himself:

Matter of Castro-Tum Interim Decision #3911 (1/4/18), 27 I&N Dec. 187 (A.G. 2018)

The Attorney General referred the decision of the Board of Immigration Appeals to himself for review and invited the parties and interested amici to submit briefs in answer to  questions he poses  about the authority of the Board and Immigration Judges to order administrative closure of some cases.
     -- Note: The ABA has submitted an amicus brief supporting the practice (listed below*).
 
Matter of E-F-H-L- Interim Decision #3917  (3/5/18), 27 I&N Dec. 226 (A.G. 2018)
The Attorney General vacated the decision below which had closed the case administratively pending adjudication of a visa petition after an asylum application was withdrawn.  The Attorney General’s decision directed that the case be re-calendared.

Matter of A-B-, Interim Decision #3918 (3/7/18) 27 I&N Dec. 227 (A.G. 2018)
The Attorney General referred the decision of the Board of Immigration Appeals to himself for review and invited the parties and interested amici to submit briefs in answer to the following question he posed:

  • Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum or withholding of removal.

Matter of L-A-B-R- et al Interim Decision #3921 (3/22/18) 27 I&N Dec. 245 (A.G. 2018)
The Attorney  General referred the decision of the Board of Immigration Appeals to himself for review and invited the parties and interested amici to submit briefs in answer to the following question:

  • An Immigration Judge is authorized to “grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29 (2017); see also id. § 1240.6 (2017) (authorizing an Immigration Judge to “grant a reasonable adjournment either at his or her own instance or, for good cause shown, upon application”). In these cases, Immigration Judges granted continuances to provide time for respondents to seek adjudications of collateral matters from other authorities. Under what circumstances does “good cause” exist for an Immigration Judge to grant a continuance for a collateral matter to be adjudicated?

Matter of Castro-Tum Interim Decision #3926, (5/17/18), 27 I&N Dec. 271 (A.G. 2018)
The Attorney General held that Immigration Judges and the Board  do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. Accordingly, immigration judges and the Board may only administratively close a case where a previous regulation or a previous judicially approved settlement expressly authorizes such an action.  The Attorney General overruled two published Board precedent decisions allowing administrative closure: Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), Matter of WY-U-, 27 I&N Dec. 17 (BIA 2017).

ABA Statements:

Statement of ABA President Hilarie Bass dated Oct. 16, 2017 Re: Mandatory case completion quotas for immigration judges.  In her statement she states that “The American Bar Association strongly disagrees with any attempt to establish mandatory case completion quotas for immigration judges.”

Statement of ABA President Hilarie Bass dated April 18, 2018 in connection with testimony before the Senate Judiciary Committee SUBCOMMITTEE ON BORDER SECURITY AND IMMIGRATION on “Strengthening and Reforming America’s Immigration Court System”

ABA Amicus brief filed with the Attorney General on February 16, 2018 in the Matter of Castro-Tum, supra.  The ABA brief urges the Attorney General to retain administrative-closure authority and continue to encourage its use.

DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE OF IMMIGRATION REVIEW memo issued March 30, 2018:

Email to All Immigration Judges announcing and transmitting new performance metrics for immigration judges for evaluating performance ratings.

Revised EOIR PERFORMANCE PLAN for Adjudicative Employees.  Satisfactory performance is described as meeting certain numerical goals in regard to case completions and cases remanded as well as specified time frames.