By Samantha Kulhanek

Associate Editor, Vol. 24

The Attorney General’s authority to refer Board of Immigration Appeals (“BIA”) decisions to himself for review was established via regulation in 1940,^[1] and yet this power appears to be receiving more attention today than it ever has.^[2] The appointment of Jeff Sessions as Attorney General prompted a string of these unique reviews,^[3] in which Sessions has attempted to profoundly alter the way immigration courts interpret certain provisions of the Immigration & Nationality Act (“INA”).

The most publicized example of Sessions’s exercise of this referral power thus far has been his decision in Matter of A-B-, where he attempted to effectively narrow the circumstances in which individuals fleeing gang violence or domestic abuse may receive asylum in the U.S.^[4] However, some of Sessions’s other decisions resulting from his use of the referral power have received relatively little attention, and yet may have massive consequences for the immigration system. Three decisions in particular have attacked the discretion of immigration judges and threaten to interfere with their judicial independence and how they handle their dockets.

First, on May 17th, 2018, Sessions issued a decision in Matter of Castro-Tum, holding that “immigration judges and the [BIA] do not have the general authority to suspend indefinitely immigration proceedings by administrative closure.”^[5] DHS had objected to the administrative closure of a Guatemalan minor’s case where the minor had no legal representation. In the interest of fairness, the immigration judge (“IJ”) ordered closure when DHS failed to demonstrate the minor had received sufficient notice to appear in court.^[6]  Administrative closure permits judges to temporarily take a case off their docket, effectively delaying removal proceedings and putting the case in a limbo-like state. It is a way for IJs to remove low-priority cases from their active caseload, usually because the immigrant is in the process of obtaining legal relief in related proceedings.^[7]

While there is no express authority permitting administrative closure, the BIA had previously recognized the practice as a “docket management tool”^[8] and approved of its use, even in cases where one party opposed the closure.^[9] However, Sessions took advantage of the opportunity to review the decision in Matter of Castro-Tum and essentially eliminate judges’ ability to utilize this tool. He held that IJs and the BIA “may only administratively close a case where a previous regulation or . . . judicially approved settlement expressly authorizes such an action,”^[10] despite agreement among even the Federal Courts that the BIA and IJs have the authority to order such closures.^[11]

Given the immense backlog that already exists in the immigration system,^[12] advocates fear this will not only unnecessarily add hundreds of thousands of cases to that queue, but also result in the cruel issuance of deportation orders in cases where an individual may simply be waiting on USCIS to process their visa application. Subsequently, in September 2018, Sessions referred another decision to himself where he relied on his holding in Castro-Tum to similarly declare that IJs also lack the authority to end removal proceedings entirely.^[13] The respondent in F-D-B- would soon have had the right to lawfully remain in the U.S., so the IJ exercised her discretion to terminate the removal proceedings, allowing the respondent to complete the visa process without fearing the issuance of a deportation order in the interim; however, in reversing the IJ’s order, Sessions stripped all IJs of such discretion.

In August, Sessions issued another alarming decision in Matter of L-A-B-R- et al., addressing the use of continuances by IJs.^[14] Similar to administrative closures, continuances are another docket-management tool that judges frequently utilize. Continuances permit judges to postpone an upcoming hearing date or pause an ongoing hearing and move it to a future date. Regulations permit judges to authorize such continuances “for good cause shown,” although the regulations do not explain what factors constitute “good cause.”^[15] In L-A-B-R-, Sessions held that a judge should assess good cause “by applying a multi factor analysis, which requires that the [IJ’s] principal focus be on the likelihood that the collateral relief will be granted and will materially affect the outcome of the removal proceedings.”^[16] While previously the good cause assessment involved a similar multi-factor analysis, Sessions’s decision in L-A-B-R- reads like a warning to IJs, cautioning against “unnecessary continuances” in order to “protect against abuse.”^[17]

Given the long wait times immigrants frequently face as USCIS adjudicates their petitions for relief, it is not uncommon for judges to grant year-long continuances. However, Sessions’ decision seems to disapprove of such lengthy continuances, stating that good cause “may not exist when the alien has not demonstrated reasonable diligence in pursuing [collateral relief], DHS justifiably opposes the motion, or the requested continuance is unreasonably long.”^[18] In this and other passages throughout the decision, Sessions urges judges to prioritize expediency in the disposition of cases, reiterating that additional hearings can impose a “burden” on courts, and that continuances may be used as a “delaying tactic.”[19]

While Sessions’s interference in these BIA cases effectively makes it more difficult for IJs to prioritize and manage the large volume of cases on their dockets, the DOJ has also instituted a quota system in an effort to make judges work faster. The policy requires judges to clear at least 700 cases a year to receive a “satisfactory” performance rating.^[20] Sessions is simultaneously forcing IJs to churn out cases as quickly as they can, while handcuffing them in the process by taking away some of their most effective tools for prioritizing cases on their dockets. Advocates fear that these decisions are jeopardizing the independence of IJs, which is already precarious given their placement within the DOJ as opposed to the judicial branch. Bound by the decisions being handed down by their boss—the Attorney General—IJs now have no choice but to meet their quotas without the use of these now-forbidden case management tools. Disturbingly, the American Immigration Council also recognized that Sessions’s decision in L-A-B-R- “seems to leave room [for IJs to take] case completion quotas into consideration when denying a continuance.”^[21]

In mid-October Sessions again exercised his referral power, taking on a case to decide whether immigrants who have been screened from expedited removal proceedings into standard removal proceedings are entitled to bond hearings.^[22] Sessions has yet to issue a decision in this case, but will likely do so by the end of 2018. Following the Supreme Court’s ruling in Jennings v. Rodriguez earlier this year,^[23] Matter of M-S- could present an opportunity for Sessions to further confine the instances in which immigrants must be provided with the chance to be released from detention on bond. In Jennings, the Court held that immigrants subject to mandatory detention during removal proceedings were not entitled to bond hearings, even if their detention has lasted six months.[24] Given the decision in Jennings, as well as an upcoming Supreme Court decision in another case addressing the detention of noncitizens,[25] it seems likely that Sessions’s imminent decision in Matter of M-S- will similarly be friendly to the imposition of lengthy periods of immigrant detention absent bond hearings.

Under federal regulation, immigration judges have a duty to “exercise their independent judgment and discretion,” and to “take any action consistent with their authorities under the [INA] and regulations that is appropriate and necessary for the disposition of [their] cases.”^[26] Despite this fact, Sessions is using his decisions to constrain their discretion in an apparent effort to reduce IJs to “deportation machines.”^[27] As Sessions continues to refer BIA decisions to himself at an alarming rate, it seems unlikely that he will cease wielding this authority to push his anti-immigrant agenda any time soon.[28]

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^[1] Hon. Alberto R. Gonzales & Patrick Glen, Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority, Iowa L. Rev. 841, 849-52 (2016).

^[2] See, e.g., Tal Kopan, Sessions tests limits of immigration powers with asylum moves, CNN Politics, Mar. 10, 2018.

^[3] As of this writing, the Attorney General has referred eight BIA decisions to himself in 2018. Volume 27 AG/BIA Decisions, U.S. DOJ. Between 1999 and 2009 the Attorney General averaged only about 1.7 certified decisions annually. Laura S. Trice, Adjudication by Fiat: The Need for Procedural Safeguards in Attorney General Review of Board of Immigration Appeals Decisions, NYU L. Rev., 1766, 1771 (2010).

^[4] Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).

^[5] Matter of Castro-Tum, 27 I&N Dec. 271, 272 (A.G. 2018).

^[6] Lolita Brayman, The end of administrative closure: Sessions moves to further strip immigration judges of independence, Catholic Legal Immigration Network, Inc. (June 4, 2018, 2:00 PM), https://cliniclegal.org/resources/end-administrative-closure-sessions-moves-further-strip-immigration-judges-independence.

^[7] Id.

^[8] Matter of W-Y-U-, 27 I&N Dec. 17, 18 (BIA 2017).

^[9] Matter of Avetisyan, 25 I&N Dec. 688, 690 (BIA 2012).

^[10] Castro-Tum, 27 I&N Dec. at 272.

^[11] Brief of Amicus Curiae Catholic Legal Immigration Network, Inc. at 14, Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) (No. A206-843-910).

^[12] Zachary Mueller, How the Trump Administration is Changing Immigration Courts, America’s Voice Education Fund (Aug. 14, 2018), https://americasvoice.org/blog/how-sessions-changed-immigration-courts/. The backlog is currently around 730,000 pending cases, with an average waiting period of two years.

^[13] Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462, 466 (A.G. 2018). In F-D-B- the immigration judge relied on the court’s busy docket, her discretion, and the particular facts and circumstances of the case to support her decision to terminate removal proceedings. The respondent had already obtained a visa through a family member, and instead of taking voluntary departure, which could have jeopardized her admissibility, the judge’s termination allowed her to remain in the U.S. while awaiting the date for her consular interview in her home country.

^[14] Matter of L-A-B-R- et al., 27 I&N Dec. 405 (A.G. 2018).

^[15] 8 C.F.R. § 1003.29 (1994); 8 C.F.R. § 1240.6 (2018).

^[16] L-A-B-R- et al., 27 I&N Dec. at 406. Respondent entered the U.S. without authorization and at an initial hearing stated he intended to apply for asylum and other relief. The IJ first granted him continuances to provide him time to seek counsel and file an asylum application, and then again later when he married a U.S. citizen who was in the process of petitioning for a visa on his behalf.

^[17] Id. at 411-12.

^[18] Id. at 412.

[19] Id. at 407.

^[20] Mueller, supra note 12.

^[21] Practice Advisory: Motions for a Continuance, American Immigration Council, Sept. 7, 2018, at 5.

^[22] Matter of M-S-, 27 I&N Dec. 476 (A.G. 2018). Expedited removal proceedings are a fast-track deportation process where noncitizens are not given the opportunity to appear in immigration court to contest their removal.

^[23] Jennings v. Rodriguez, 583 U.S. __, 138 S. Ct. 830 (2018). The Court determined that the INA did not mandate bond hearings in these situations, and that the statutory canon of constitutional avoidance was not strong enough to require them. The Court then remanded to the Ninth Circuit on whether prolonged detention is constitutional, which has not yet been decided.

[24] Id. at 842.

[25] Rich Samp, Supreme Court Poised To Overturn Ninth Circuit Ruling Granting Bond Hearings to Criminal Aliens, Forbes (Oct. 15, 2018), https://www.forbes.com/sites/wlf/2018/10/15/supreme-court-poised-to-overturn-ninth-circuit-ruling-granting-bond-hearings-to-criminal-aliens/#206c30435766.

^[26] 8 C.F.R. § 1003.10(b) (2014).

^[27] National Immigrant Justice Center (@NIJC), Twitter (May 17, 2018, 4:48 PM), https://twitter.com/NIJC/status/997262645844639745 .

[28] Zachary Mueller, A Session in Hate, America’s Voice Education Fund (July 19, 2018), https://americasvoice.org/sessionsinhate/ (detailing Sessions’s history as an ally of the anti-immigrant movement).