The return of administrative closure in removal proceedings!

For the past three decades, immigration judges and the Board of Immigration Appeals have used a tool known as “administrative closure” to temporarily remove cases from their dockets when the noncitizen was pursuing other forms of relief or immigration benefits with a different immigration agency that would affect the merits of the removal proceedings or render the removal proceedings completely unnecessary. While administrative closure was not available to all noncitizens, it provided a qualified noncitizen with the great benefit of additional time and opportunity to pursue other forms of relief or benefits they could not have received otherwise.

For example, administrative closure may be helpful to a noncitizen who is married to a U.S. citizen and has been placed in removal proceedings for overstaying their visa. If the noncitizen’s U.S. citizen spouse files an I-130 petition on the noncitizen’s behalf, administrative closure would allow the noncitizen to remain in the United States until USCIS decides the I-130 petition. If USCIS grants the petition, the noncitizen would then be eligible for adjustment of status—a form of relief they would not be eligible for without the approved I-130 petition.

In May 2018, however, the Attorney General issued his opinion in Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018), which effectively eliminated an immigration judge’s power to administratively close cases except in very limited circumstances. This decision had severe and wide-reaching consequences, which are detailed in an Essay written by an associate attorney of KKTP, Elizabeth Montano, published in the Yale Law Journal Forum in February 2020, entitled The Rise and Fall of Administrative Closure in Immigration Courts.  Among other things, Castro-Tum severely deprived noncitizens in removal proceedings of the opportunity to pursue other forms of relief they could have received had they either not been in removal proceedings or been given more time to await a decision from the other agency.

Fortunately, the federal courts have begun to save administrative closure. Just a few weeks ago, the U.S. Court of Appeals for the Seventh Circuit—which covers Illinois, Indiana, and Wisconsin—issued its opinion in Meza-Morales v. Barr, No. 19-1999, 2020 WL 3478622 (7th Cir. June 26, 2020), in which it refused to follow Castro-Tum because the Attorney General’s decision violated the plain language of the regulations that grant immigration judges with the power to “take any action . . . that is appropriate and necessary” to complete their cases. 8 C.F.R § 1003.10(b). With this decision, the Seventh Circuit becomes the second federal circuit to reject Castro-Tum, following the U.S. Court of Appeals for the Fourth Circuit—which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia—in Romero v. Barr, 937 F.3d 282 (4th Cir. 2019).

These decisions mean that noncitizens in the states under the jurisdiction of the Fourth and Seventh Circuits may still have their removal proceedings administratively closed while they pursue other forms of relief or immigration benefits with other immigration agencies. And, luckily, there are similar challenges to Castro-Tum pending in other federal circuit courts throughout the country, which will hopefully lead to the undoing of Castro-Tum’s terrible consequences and again allow immigration judges to administratively close cases when appropriate.