By: Attorney Cynthia Milian
On May 2018, the Attorney General used a “self-referral” to issue a decision on a case that could potentially impact over 350,000 immigrants. Self-referral is when the Attorney General refers a previous case to himself for review.
Under previous presidential administrations, immigration court judges had the discretion to allow for cases to be closed and removed from the court docket. This would allow for people to find an alternative form of relief outside of court. While the individuals would not automatically get status, they would also get immediately deported.
Terminating a case in court and administratively closing a case are two different terms that merit a definition.
Administratively closing a case is available when an Immigration Judge (IJ) temporarily removes the case from their docket or calendar. The case may be reopened at any time by the Respondent or the Department of Homeland Security (DHS), which makes this order not final.
Terminating a case in court allows for the court proceedings to be terminated in court, making the IJ’s order final. The only way they could be reinitiated is if DHS serves the respondent with a new charging document to start new removal proceedings.
The recent decision by the Attorney General is applicable to administratively closing cases. It holds that IJ’s and the Board of Immigration Appeals (BIA) do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. Accordingly, immigration judges and the Board may only administratively close a case where a previous regulation or a previous judicially approved settlement expressly authorizes such an action. See Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).
What does this case mean for you?
This case means that people who were previously allowed to administratively close a case in court to pursue a Waiver, or had DACA, or TPS, now face the uncertainty of having their cases reopened by the DHS to begin removal proceedings. The DHS has not stated how they are going to implement this new decision, so we will continue to be on the lookout to see how these cases will be calendared in court.
If you feel that this recent case may affect you, or if you have questions regarding your current status, please contact our office for a consultation. As always, we are here to use our resources to walk you through any immigration matters you are faced with.