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Government Eliminating Immigration Judge Jurisdiction to Close Cases

In January of 2018, U.S. Attorney General Jeff Sessions issued an order for immigration judges to end administrative closure, saying that the practice “lacks a valid legal foundation.” This order comes at a time when the number of unresolved cases is at an all-time high, and wait times for court dates go as far ahead as 2022.

What Is Administrative Closure?

Administrative closure is when an immigration judge temporarily removes a case from its active court docket without issuing a decision. This process allows overburdened immigration court judges to move more quickly through the massive backlog of cases, which is at 650,000 unresolved cases and counting.

When Is It Used?

Administrative closure is often used in cases where immigrants are applying for green cards and visas, applying for relief, or waiting for the outcome of an appeal.

Administrative closure can allow enough time for applications to go through, or for the results of appeals to have an effect on the individual’s immigration proceedings. The Board of Immigration Appeals (BIA) weighs several factors in allowing administrative closure on a given case, such as:

  • whether or not there is an acceptable reason to seek administrative closure,
  • whether or not there is any reasonable basis to deny administrative closure,
  • whether or not the respondent (or immigrant) might succeed on obtaining any petition or other action he or she is trying to obtain outside of removal proceedings, and
  • whether either party (the respondent or the court) is contributing to any delays in the case.

Sessions, as well as other critics, assert that judges who order administrative closure are abusing their authority, with what is supposed to be a temporary solution. In practice, closures are often permanent, as the cases are rarely tracked after being administratively closed, leaving only a third of cases re-calendared and resolved in court. Critics say that this practice allows too many undocumented immigrants to live in the U.S. longer than allowed.

Immigration advocates, judges, and other supporters of administrative closure say that the practice is legal, has not been abused, and that it is an important tool for judges in managing an already overloaded court docket. It also allows the courts to focus on more urgent cases or ones that can be resolved quickly.

How Effective Is Administrative Closure?

Administrative closure may have some effect in reducing the amount of cases, but appears to be a short-term solution.

According to a 2017 study by the United States Government Accountability Office, the Executive Office for Immigration Review’s (EOIR) backlog for open cases more than doubled from 2006 through 2015. As open cases increased, fewer cases were completed each year, decreasing by 31% over a period of ten years. To compound the problem, the amount of immigration judges in EOIR increased only 3%, while currently 39% of judges are eligible for retirement. When you add to it the fact that it takes nearly two years for a judge to be hired by EOIR, the amount of cases per judge even without a backlog is incredible.

Another contributing factor is the fact that merits hearings (hearings to determine the merits of a respondent’s request for refugee status or relief) are frequently rescheduled, adding to the backlog. Non-detained respondents have a harder time finding witnesses to appear in court and vouch for them due to this constant rescheduling. Rescheduling also causes delays, resulting in some respondents being no longer eligible for relief by the time the rescheduled hearing is to take place.

Are There Other Solutions?

Outside law associations, such as the American Bar Association and the National Association for Immigrant Judges, have recommended various staffing improvements, technology updates, and structural changes to the EOIR in order to better manage the workload and speed things along. In response, EOIR has addressed its staffing issues with workforce contracts, but the benefits of relying on contracted workers, in conjunction with the use of administrative closure to alleviate the workload, remains to be seen.

Currently, there are an estimated 350,000 cases that are administratively closed. At any rate, Sessions has not ordered the re-opening of cases that are already administratively closed, as they would only further flood an immigration court with too few judges and too many cases already pending.

Regardless, those pursuing immigration cases should not rely on administrative closure as a secure means of obtaining a visa, green card, or relief. A knowledgeable New York immigration lawyer can inform you of your rights, and advocate for you every step of the way. For a consultation with the skilled immigration attorneys at Pollack, Pollack, Isaac & DeCicco, LLP, please call 646-779-2896 today. We speak many languages, and want to help you and your family find the answer you seek.

 

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FAQs
  • Q: My employer wants to sponsor me to get a green card – can they?

    If you entered the United States without visa and are working here without legal documentation, your employer may be able to help you. But it’s important to understand that just because your employer wants to help doesn’t mean you will be able to obtain a green card. The process for obtaining a green card is complicated and depends on many factors, including your prior history (and your family’s prior history) in the United States. So it’s good that your employer wants to help but the first step is to call us for an interview so we can understand more about your situation.

  • Q: How can I get a work permit?

    A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, you need a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get you a work permit, but you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit you have to make an application for legal status in this country on some other basis. Don’t believe any other lawyer or person who tells you it’s an easy thing to get a work permit. Call us for an interview and we can explain to you how the process and immigration laws in the United States really work.

  • Q:  Can I apply for deferred action now?

    As a result of the injunction issued by the District Court in Texas, applications for the expanded DACA program and DAPA are currently on hold. The Department of Homeland Security is not currently accepting requests for the expansion of DACA, as originally planned. Until further notice, it has suspended the plan to accept requests for DAPA.

  • Q: Does the new executive order or court injunction change Deferred Action protection under existing DACA?

    The Court’s order does not affect the existing DACA. Individuals may continue to come forward and request initial grant of DACA or renewal of DACA pursuant to the guidelines established in 2012. This ruling only delays the start of DAPA and the expansion of DACA.

  • Q:  Who can I contact for more help or information?

    It’s important that you speak with a qualified attorney who can explain all the options and issues relating to your immigration status.  Do not take advice about your immigration case from a notary public or an immigration consultant.  The U.S. immigration laws and rules are very complicated and many people take advantage of undocumented immigrants, making promises and charging money without providing honest advice.  Contact only a qualified immigration lawyer for legal advice about your case. If you encounter 'notarios' who offer legal advice without a license, report it.

  • Q; What should I do now?

    You can begin preparing now! Even though DHS is not currently accepting applications under DAPA or the expanded DACA programs, individuals who are potentially eligible for Deferred Action status should begin preparing their applications now. It is very likely that the Texas decision will be overturned and there will probably be a rush of applicants when that happens. Individuals should be ready with their applications and start now by gathering the necessary documentation and seeking good counsel to give themselves the best chance for success and to avoid potential problems.

  • Q: I haven’t seen my mother since I came to the U.S. 10 years ago. Can I apply for a visa so she can join me here?

    If you are a U.S. citizen or have a Green Card, then yes, you can apply for a visa for your family members. But the process can take a long of time, depending on your own status. If you’re a U.S. citizen, it might take 8 months to a year to process the application. The waiting time will be much longer if you’re a Green Card holder. Generally, the sooner you start the process the better, so contact one of our attorneys now to get started or browse our site to learn more about the different types of visas available for family members.

  • Q: My grandma is sick back home – can I go visit her?

    Whether you can travel abroad depends on your immigration status. If you have been granted DACA or if you have a Green Card in hand – you still must ask for advanced permission in order to leave the country. This is called advanced parole. Obtaining advance parole is relatively inexpensive. But it is not without risk, because there is really no way to guarantee that you will be able to return. Your return is ultimately within the discretion of the authorities at the point of your reentry to the U.S.

  • Q: Can our company sponsor an employee to get a green card?

    If one of your employees entered the United States without visa and is working here without legal documentation, you may be able to help this person obtain legal immigration status. This doesn’t necessarily mean they will be able to obtain a green card. The process for obtaining a green card is complicated and depends on many factors, including a person’s prior history (and their family’s prior history) in the United States. It’s definitely helpful to their case if you, as their employer, are willing to help, but the first step is to have the employee call us for an interview so we can understand more about their situation.

  • Q: What is a work permit?

    A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, an employee needs a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get undocumented immigrants work permit. But you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit a person must make an application for legal status in this country on some other basis. So don’t let your employees get gulled into believing that it’s easy to get a work permit by some lawyer or hustler on the street corner. Call us for an interview and so we can explain to your employees how the process and the immigration laws in the United States really work.

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