We should have seen it coming.
In 2018 the Attorney General ended the ability of immigration judges to administratively close cases, concluding they had in fact never had such authority. As shocking as that was at the time, we’re now seeing pieces of that puzzle were being laid out months before the Attorney General released that decision. And the more we learn, the more it appears the end of administrative closure was more about results (faster deportations) than about the legal principles outlined there.
For over 50 years when a case was pending at immigration court but wasn’t ready to be completed, judges had used the power of “administrative closure” to take the case off the active docket. That power is still written into various immigration regulations, described in still-binding settlement agreements and consent decrees, and had been endorsed by the BIA and most of the circuit courts in precedent decisions. The agency had even adopted a formal policy which the public could go online and read so it could know in advance what to anticipate.
In one fell swoop the Attorney General explained that all those institutions had unfortunately been wrong, administrative closure was unlawful, and he was putting a stop to it.
The Creation of Status Dockets Preceding the End of Administrative Closure
About four months earlier, in January, 2018 the EOIR quietly announced the creation of a “status docket” for cases which were waiting on some other proceedings to finish. The announcement came in a footnote on the last page of this policy memorandum about new quotas the EOIR would require immigration judges to meet or face discipline. Under that rule, a “status case” was:
(I) one in which an immigration judge is required to continue the case pursuant to binding authority in order to await the adjudication of an application or petition by U.S. Citizenship and Immigration Services, (2) one in which the immigration judge is required to reserve a decision rather than completing the case pursuant to law or policy, or (3) one which is subject to a deadline established by a federal court order.
The distinction mattered for purposes of the quotas, because “non-status” cases were required to be completed within 365 days. A separate quota said an IJ could be disciplined if more than 5% of their cases were delayed once they were set for trial. Combined, this meant if a judge placed the case on a “status docket” the judge wouldn’t be penalized if the case took more than a year. But if they kept the case active and set it for trial and then later granted a motion to continue, the judge could be penalized (and perhaps terminated).
Nobody really noticed this at the time, because back then IJs could still administratively close cases. We didn’t know what was coming.
In May, 2018 Attorney General Sessions issued a precedent decision, Matter of Castro-Tum, saying judges had never had the power to administratively close cases and directed all judges to stop doing it. He said the only tool for delaying a case was a formal “continuance.” Rather than simply offer guidance to judges on when to take cases off their dockets, Sessions adopted an extreme rule removing the judges’ discretion to ever do so at all.
As it turned out, the new rule also dovetailed with the new Immigration Judge quotas. The inability to control the docket combined with the new disciplinary quotas focusing on time and penalizing continuances necessarily lead to just one result: less delays, even if they are warranted, and more deportation of individuals who are actually eligible for relief from removal.
Early Use of The Status Docket
In the immediate aftermath of Castro-Tum, some but not all Immigration Judges began to use a “status docket” (one court called it a “ghost docket”) to put cases on hold when something was pending before a different agency. This had been a primary use for administrative closure and remains necessary now.
This is why: in 2003 Congress divided the old Immigration and Naturalization Service (INS) into several independent agencies. Within the Department of Homeland Security, Congress created the USCIS to handle applications for benefits like visas. Deportation proceedings were assigned to be handled by the the Department of Justice with a DHS attorney acting as “prosecutor.”
The standard scenario involves an individual in removal proceedings who is eligible for a visa. While the visa might allow them to stay, the judge in charge of their court proceedings isn’t allowed to decide whether to issue the visa or not. Also, some visas aren’t immediately available – so even if the USCIS grants the visa, there might be a need to briefly pause the deportation case until the visa is ready. Once it’s ready, the judge can then grant permission to stay based on the visa. But until it’s ready, the judge is only able to delay the case or complete the case (which almost always means removal).
Growing backlogs at USCIS have made this even more important, because the delay is usually not the fault of the immigrant waiting on their visa. Also, the prosecutor in these cases, who is normally opposed to the delay, works for the same agency primarily responsible for the delay – the Department of Homeland Security.
When judges started using the status docket, no official announcement was made. It wasn’t immediately clear which cases would qualify. The “status docket” is not mentioned in the Immigration Court practice manual. Of course, there was that footnote in the quotas memo from January, defining the phrase “status case” but it wasn’t clear what that meant. It wasn’t explicitly a limit on status dockets for other purposes. And without knowing the procedure and which judges in the country were implementing them, the implementation of this form of relief (and advising our clients about it) has been random at best.
Attorneys and immigrants only learned judges were using the status docket when they received an order in the mail like this one:
Still, the procedure has continued to vary individual immigration judge, with some not using a status docket at all.
The EOIR Director Secretly Ends the Status Docket
In July, 2019 we heard a rumor new guidance had been issued to all immigration judges about what cases could be placed on a “status docket.” No official announcement was made, so we submitted a FOIA request.
What we received in response was this e-mail message:
The e-mail, with the subject line of “RE:status docket ***HOT***” directs all immigration judges that the use of “status dockets” must be limited to the situations cited in the IJ quotas memo. Essentially, what limited discretion IJs seemed to have left was gone.
Shockingly, this e-mail also said there were 21,000 cases as of July, 2019 sitting on status dockets. Those cases would all now be moved to the active docket, where the respondent was now at risk of being ordered removed even if they were still waiting on USCIS to get around to processing their visas.
Secret rule-making is always troubling. It doesn’t just limit the ability of immigrants in removal proceedings and their attorneys to anticipate what is possible or likely. It also raises serious concerns about due process when an Immigration Judge announces a decision and only later it is learned that decision was required to be made by secret, internal directives. When a judge declines to delay a case, a court can reverse that decision if it was an “abuse of discretion.” But when the judge’s rationale is secret, spelled out only in e-mails directed to a limited number of parties, the court has no way to know if that exercise of discretion was abusive.
The August 2019 Status Docket Memo
After the secret email in July, a policy memorandum was issued in August, 2019 further explaining the new policy.
This memo reiterated that “status dockets” can now only be used in cases where the courts are required by law or policy to delay the case. It listed a number of examples where that is true but made clear there are no other instances where courts can place cases on status dockets.
In a footnote, the memo also says judges are still free to grant continuances. But, for me, this memo confirmed the January, 2018 quotas memo and the May, 2018 Castro-Tum decision were two parts of a single policy designed to discourage and punish immigration judges for doing precisely that. If judges could no longer use administrative closure or status dockets for most cases, and they now have a time quota for processing of “non-status” cases and a percentage quota for the number of cases where they grant continuances, they may have no choice than to order removal.
The EOIR installed a “dashboard” on the IJs’ computers so they can see during a hearing how close they are to their quotas. An IJ on the bubble as the end of the year approaches then has to make an impossible choose: deny a continuance or face discipline and perhaps termination. That’s not discretion.
It also seemed to confirm the EOIR director was aware in January, 2018 (when the quotas memo was issued) that administrative closure was soon going away. What other reason would there have been to describe (and limit) its replacement in the quotas memo issued four months prior? At the time there was no reason to define “status case” or limit the use of “status dockets,” because administrative closure wouldn’t be eliminated until May, 2018.
Folks in removal proceedings should still ask for continuances if necessary. The regulation makes crystal clear an IJ must grant a continuance if you show “good cause” (which makes denying a continuance because of a quota completely illegal).
People should also still be asking for administrative closure. In August, 2019 the Fourth Circuit issued a lengthy, persuasive decision describing why Matter of Castro-Tum was wrongly decided and of course Immigration Judges have authority to administratively close. Folks should be challenging the ban in other circuits to hopefully change the law for the better.