February 20, 2018

ABA urges attorney general to continue administrative closure in immigration cases

CHICAGO, Feb. 20, 2018 — The American Bar Association has filed an amicus brief with the U.S. Department of Justice, outlining reasons why the attorney general should not withdraw the ability of immigration judges to use administrative closure to suspend deportation proceedings.

Attorney General Jeff Sessions, who administers the nation’s system of immigration adjudication, requested comment on whether immigration judges and the Board of Immigration Appeals have authority to order administrative closure in a case, a long-standing practice that essentially pauses a deportation proceeding. This could occur for various reasons, including the likelihood that an individual might prevail in an action separate from a removal proceeding that entitles them to relief from removal.

The ABA brief, filed late Friday, notes the nation’s more than 300 immigration judges are now overwhelmed in their caseload and that the use of administrative closure “is a practical necessity” to ensure that the immigration court backlog does not grow further. As of December 2017, there were 667,000 matters pending before immigration judges and the waiting time for a proceeding is typically two years or more, the brief explained, citing an outside study.

The ABA brief adds that the U.S. Supreme Court has described the “power to defer adjudication of a case as inherent in the authority to decide cases” and this is a necessary tool for an immigration judge.

“Withdrawing the authority from (immigration judges) and the Board to administratively close proceedings would make it considerably more difficult for those individuals to obtain relief,” the ABA brief said. “In the absence of administrative closure, (judges) confronted with such cases will either issue continuance after continuance to allow noncitizens to pursue relief in another forum or will issue final orders of removal, pretermitting those proceedings. Neither course is appropriate or desirable in an efficient and balanced adjudicative system. … A decision to withdraw administrative closure authority, in other words, is not an abstract or procedural one; it would have profound and long-lasting consequences on the operation of the immigration adjudication system and the lives of those who must proceed through it.”

The ABA amicus brief filed with the Justice Department is available here.

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