When there is no clear relief in immigration court, try administrative closure

administrative closure feature image with gavel and stack of immigration cases

Topic: Immigration Law: Administrative Closure

Frequently, our clients in immigration court ask what forms of relief are available, outside the normal CAT/Witholding/Asylum relief.  While various sponsorship and cancellation actions exist, one frequently overlooked option is administrative closure.  Administrative Closure is a valid option for those individuals who have no criminal history (or light criminal matters such as traffic violations) and a valid means of maintaining themselves in the US.   There is no particular case that warrants this relief more than another, rather, it is often a tool used by the Courts (and our clients!) to control the number of cases before a judge, and to stet a matter (that’s legalese for “put it on a shelf”) that is not pressing.  Usually, we would ask the prosecutor (called the “DHS Attorney”) to join us in requesting the court admin close a matter when the factors appear favorable.

Although administrative closure, as a form of relief, has been around for decades, under the Trump administration, it was stopped.  In Matter of Castro-Tum, the Attorney General, under President Trump, prohibited immigration judges from permitting administrative closure in Court.  This significantly complicated the docket of many courts and made a severe case back-log even more unmanageable.  Fortunately, that holding was overturned in 2021, in a case called Matter of Cruz-Valdez.  After July 2021, administrative closure was back in action!  This is great news to our clients, and a very exciting avenue of relief for many individuals who would otherwise languish for years in the immigration court system.

What is Administrative Closure?

A tricky question!  Administrative closure, as previously mentioned, is a form of relief that allows the judge to “shelf” your case.  It isn’t closed.  You still have a court case pending.  However, there is no future date.  As such, it freezes your position in the United States.  This is not a permanent solution to an immigration problem, and it does not provide any status or work authorization in and of itself.  What it does do, however, is prevent our clients from being deported while they work out other solutions.  We are hopeful that soon, work permits will be granted to individuals strictly on administrative closure status.  Note, that if you applied for asylum before an immigration court, and then your case was administratively closed, you would continue to eligible for work permits as per an application for asylum, as your court case has been continued indefinitely.

Unless you reopen the case, you will not be able to adjust your status. It is important to understand that this severely limits what legal actions you can take in the US.  Be sure to speak to us about requirements and limitations before seeking this relief.

Where did administrative closure come from?

Administrative closure is not a form of relief. In fact, it is a tactic the judge takes to control his or her docket. It is important to understand that the typical immigration judge has approximately 5,000 new cases a year and that does not include the cases that roll over from previous years. They resolve about 40 percent of those cases each year (arguably), which leads to a backup of tens of thousands of immigration cases.

There’s no good way for the judge to sweep the docket clean, reset, and get the number of cases under control.  Court delays of three to four years are not uncommon. This means important cases are not heard, as well as immigrants with criminal records, get lost in the system.

The current position of the Department of Justice on the matter of Administrative Closure can be found here:  https://www.justice.gov/eoir/book/file/1450351/download.

Originally, the process of administrative closure was begun in the 1980’s as a means for immigration judges of the INS to maintain docket control – similarly to state courts use of the “stet” option.  ICE and the United States Citizenship and Immigration Services (USCIS) often rate the type of immigrant by tiers. A low tier case is somebody who doesn’t need to be deported immediately, doesn’t need to be detained, and is not a risk to the community. The court greatly wanted to find a way to dispose of these low tier cases.

How to obtain administrative closure.

Initially, we assess your case to determine if administrative closure is appropriate.  Is your criminal history in line with the request?  Have you been productive in society, or do you have a safe place to live?  Such questions for the basis for arguing the efficacy of allowing administrative closure in a particular case.

If you pass the screening criteria, we then contact the prosecutor (DHS Attorney) as speak to them regarding this relief.  This can also be done at one of your status hearings.  Although not strictly necessary, getting the prosecutor to join the request for administrative closure will greatly increase the chance of approval.

There is no specific right to this relief, and there is no legal argument to force the Court to adopt administrative closure in any particular case.  Rather, it tends to be decided quickly when joint, and often is held in abeyance (i.e. delayed) when not a joint motion with the prosecutor.  Truly, this is at the discretion of the judge.

Often, clients will need to re-open their cases in the future, in order to resolve the immigration matter, and receive some form of status.  This should only be done after careful consideration of the potential problems going back before the Court could create – such as deportation.  However, if you believe your case is now strong, or if you have a new form of relief that was missing when the matter was first administratively closed, this could be the right decision.

Do you have an immigration question?  We would be happy to review your case or discuss next steps in your immigration process.  Consultations are always free, and our knowledgeable staff is ready to assist!

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