NOI 7: Thanks to the 4th Circuit, the Immigration Court Backlog is About to Get Smaller

A recent decision in the 4th circuit has effectively overturned the Matter of Castro-Tum decision and renewed the practice of administrative closure.

Jacob Tingen: Hello, Nation of Immigrants. Today, we’ve got some exciting news. I’ve been checking the news and it’s kind of amazing; so much action is happening in immigration. Last night, I thought I was going to spend this episode talking about birthright citizenship and different possibilities there; there has been some news and action there, we’ll probably address that soon. But then today in the office, we got some very interesting news about administrative closure in the immigration courts. I’ve been meaning to talk about the immigration courts for awhile. And for those of you who are aware… and maybe not if you’re listening to this; you think the idea is to learn things you maybe didn’t know… the immigration court backlog is enormous, to the point that I personally have cases that aren’t going to be heard until 2023 and beyond.

Jacob Tingen: So today, we’re going to talk about how a decision in the Fourth Circuit may decrease that immigration court backlog. Welcome to Nation of Immigrants.

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Announcer: A podcast about U.S. immigration law with your host, Jacob Tingen.

Jacob Tingen: All right. So once again, as I mentioned, we’re talking about the immigration court backlog. And one of the things that is important to recognize is there’s a million cases in our nation’s immigration courts. There’s only about 400 judges, I recently read. And so… it’s interesting when you go to immigration court, particularly when you get new judges, it’s kind of fine because they’re like, “My court won’t be continuing the way other courts do.” But when they have a master calendar hearing, and we’ll talk a little bit more about that, with 40 individuals, and they have to schedule an individual hearing for each of those people… after a month of those kinds of hearings, their calendar’s booked out until 2022, 2023.

Jacob Tingen: Now, one of the topics I’ve wanted to address for a while is how the current administration, through this certification power of the Attorney General, is trying to influence in this enormous way how immigrants go through removal proceedings. So, and this is a topic we’ll go in depth on later; I’ve already been kind of charting out and planning out kind of a whiteboard episode that we’ll do in our conference room.

Jacob Tingen: But for today, some news came out about a particular issue and we’ll address it this way. First, some background: the Trump administration has taken a very hard line stance on immigration, and a couple of episodes ago we talked about prosecutorial discretion and how this hard line stance, “We’re not going to let anybody go. Everybody’s a priority,” has actually turned into a reduction in the number of deportations we’re seeing in the country. And that same attitude, this hard line stance, is turning into the same kind of inefficiencies in our immigration court.

Jacob Tingen: So due to some administrative procedures and regulations, and again, this podcast is not to get too much into the legal weeds, and we’ll get into the specifics later, but due to some quirks in the law, the Attorney General can essentially pluck cases from the immigration court system and then re-decide them himself. Jeff Sessions was very active in doing this. The Attorney General Barr is also fairly active in doing this, and we’re seeing that attorneys general under the Trump administration have been taking cases and deciding them.

Jacob Tingen: So what does this have to do with today in the immigration court backlog? Well, one of the cases that Jeff Sessions plucked out of the caseload in the immigration courts was the decision called matter of Castro-Tum, because it’s not like people versus so and so; it’s not A v. B, case caption title for for immigration court cases; it’s always just “in the matter of so and so.” So in the matter of Castro-Tum, the person by the last name of Castro-Tum, basically it was a case about administrative closure.

Jacob Tingen: Now, let’s harken back to our other episode where we talked about prosecutorial discretion. That was an option where immigrants who were in removal proceedings, if they got to court and the DHS attorney, the attorney for the government decided, “well, this immigrant is not a priority for removal. We’re going to focus our limited resources on criminal offenders, criminal immigrants, and we’re not going to let this mother with four children be deported. She’s not really a priority, so we’re not going to focus time and attention on her”; then, the DHS attorney would work together with the immigrant and their lawyer, and they would ask the judge to administratively close the case. Okay? And so, that was administrative closure. It’s a practice that’s been around since the 1980S. The courts have been deemed to have this authority, and it was just something that kind of run of the mill happened all the time for different reasons.

Jacob Tingen: One reason that somebody might administratively close a case, outside of the aspect of prosecutorial discretion under the Obama administration, but just one particular case… the matter of Avetisyan was about a person who had a pending case outside of the immigration court and the outcome of that immigration petition would determine whether or not she would even need to go through removal proceedings.

Jacob Tingen: And so, what that case addressed was, well, if her case file keeps getting switched back and forth between departments of the Department of Homeland Security, to the core, and then back to the office to administer a decision, then it would never get decided on because the file would just shuffle it back and forth between the court, and then the office making the decision. And so these kind of government bureaucratic inefficiencies made it so that administrative closure was necessary.

Jacob Tingen: And so then, we also recently talked about U visas; four years to have a U visa decided? It made sense to administratively close a U visa case, particularly a U Visa case that’s strong, and see how that turns out before we make a decision in the immigration courts. So, administrative closure made sense in a lot of different contexts, and it’s been something that’s been done for years and years and years, lots of precedent built up around the ability of the courts to do it and implement it.

Jacob Tingen: Well, along comes Jeff Sessions; hard line immigration stance that the Trump administration has projecting. And Jeff Sessions plucks a case that had been administratively closed, Matter of Castro-Tum, and decides, “You know what? Immigration judges don’t have authority to do this. They can’t manage their dockets. Nowhere in the law does it say that they can administratively close cases.” And it doesn’t specifically say they have the power to administratively close, but as we’ll see here in a bit, the Fourth Circuit points out the immigration judges and the BIA, the Board of Immigration Appeals, have power under certain regulations that say they have any authority necessary and proper to fulfill their duty and manage their docket.

Jacob Tingen: Well, so Matter of Castro-Tum said that they didn’t, and that was kind of a shock to the immigration courts and to many of the deportation defense attorneys; what are we going to do now that we have all of these cases? We know that timelines for processing cases last forever, depending on the relief you’re seeking with USCIS; it can take six months, a year, or more. And so it just frankly makes sense to put some cases on the back burner, and then the immigration court isn’t backlogged, right? And other cases that are priorities for removal can be processed through, whereas when you have somebody who has an application for relief, there’s no need to focus on them. All right?

Jacob Tingen: So Matter of Castro-Tum complicated things a lot. Judges don’t particularly like being told what to do, so I know that a lot of judges, or at least the impression I’m under is that many judges did not really like Matter of Castro-Tum because they could no longer administratively close cases. And then it just, frankly, increased the backlog. And then there was this concept, “Well, we have more than 300,000 cases that have been administratively closed. Are we gonna re-open all of those? Are we going to pursue removal for all these people?”

Jacob Tingen: So, these are important questions about how effective is our removal proceeding process? And there was an individual in the Fourth Circuit; now the Fourth Judicial Circuit encompasses Virginia, Maryland, and this area, mid-Atlantic. And there was a gentleman immigrant who’d had a case administratively closed because he had another procedure taking place with USCIS that required administrative closure in order for USCIS to process his application.

Jacob Tingen: Now, the immigration judge did not administratively close. He appealed. The Board of Immigration Appeals administratively closed. And then Matter of Castro-Tum was decided, and in that mix of things, the government attorneys had it reopened and said, “You can’t have administrative closure, and move to terminate or something, but administrative closure should not be on the table for this immigrant.”

Jacob Tingen: And the BIA kind of agreed with the government attorneys at that point. They looked at Matter of Castro-Tum, they said, “Well, look, we actually don’t have authority to administratively close. Sorry.” That decision was ultimately appealed to the Fourth Circuit. And this is the case, and again this… I just read it today, Zuniga Romero v. Barr… and so when a case is petitioned for review to a circuit court of appeals, it finally leaves courts that are controlled by the executive branch of our government.

Jacob Tingen: So, a little known fact that people don’t realize is that our immigration courts are actually under the control of the presidential administration of the hour, which is why the Attorney General, who is typically an appointee of the present administration, exercises this huge amount of power over the immigration court system. And we’re seeing that sometimes to get justice, you have to get out of the immigration court system and get to, a federal court, a separate and independent judiciary that is not controlled by the presidential administration.

Jacob Tingen: All right, so long way of saying now we get out of the immigration courts and we get to the federal circuit judges; what do they have to say about Matter of Castro-Tum, for this guy Zuniga Romero? Well, the first thing that a federal court has to look at when they look at a case like this… and by this, I mean, that interprets a statute and that determines the bounds of its authority. Basically the Attorney General in Matter of Castro-Tum said, “Well, these specific regulations and statutes don’t say anything about administrative closure.” And then, that that was their decision. On appeal, the government argued, “Hey, look, we’re the experts on immigration, and if there’s a code section that’s ambiguous in any way, then you, the federal court, need to give us, the agency, something that’s known as Chevron Deference or Our Deference.”

Jacob Tingen: And so these names come from cases that have come have gone through previously; basically, the idea is if I’m a federal judge, I don’t live and breathe immigration every day, but the judges and the Board of Immigration Appeals and the immigration judges, they do live and breathe immigration law every day. And so, unless the statute or the laws that we’re looking at are unambiguous, I should defer to their judgment. I should give them deference, I should give their decisions deference.

Jacob Tingen: And so, that’s this concept that, are the immigration courts entitled to deference? And there’s been some building case law and we’ll talk about the [inaudible 00:12:15] decision from the U.S. Supreme Court on another day. But this is the first time we’ve had the Fourth Circuit look at the matter of deference in the immigration context, and what’s exciting about this opinion is that they laid out their reasoning and said, “Hey, the agency is not accorded deference in the event that a statute is unambiguous, and that we can just take the plain meeting and reanalyze it under our own lens,” which is one of the reasons they use to support their decision overturning the Matter of Castro-Tum; so they ultimately decided that courts can administratively close, but they said, “Hey, the statutes unambiguously give immigration judges the power to administratively close their cases.”

Jacob Tingen: But then they also looked and said, “Hey, we also need to look to the general fairness of the practice.” How can an agency say that this is their ambiguous or unambiguous position or interpretation of this law if they’ve been doing it a different way for 20 years? And that’s what they said in this case; they said, “Hey, look, since the 1980s you’ve been doing administrative closure and you’ve been in agreement with it. You can’t just do an about face and say, ‘Well, this is the only authoritative interpretation. Trust us. We’re the experts.'” And that was one of the other reasons that they struck down Matter of Castro-Tum.

Jacob Tingen: But what’s interesting about the reasoning of this decision is that the Attorney General has been very active in the immigration courts and in issuing these opinions, and so there’ve been other opinions that have come up: Matter of AP, recently Matter of LEA. And so these cases, what they’ve done is they’ve taken existing precedent… bodies of case law that have developed for years… and then essentially reversed course. And so, what I expect to see in the Fourth Circuit, and of course, I can’t predict what the Fourth Circuit is going to do, but what I expect to see is this same reasoning in saying, “Hey, government agency, why should we give you any deference if you’re just reversing course on things that you agreed with.”

Jacob Tingen: For example, Matter of LEA has to deal with family based social groups, in general, and in particular, in the Fourth Circuit Court of Appeals, family is a social group for asylum purposes. Now, we’ll have a full asylum discussion over a series of episodes soon. But, Matter of LEA was basically the Attorney General coming through and saying, “Family is not a social group, not anymore, not unless it fulfills certain narrow requirements.” But for years, the the immigration judges and the Board of Immigration Appeals, and the Fourth Circuit in particular, has strongly said over and over again that family is a social group for asylum purposes, and that it’s a protected ground… that someone could claim persecution on the basis of being a member of a certain family, and they could gain asylum protections. That’s very clear in the Fourth Circuit.

Jacob Tingen: So, it’s just interesting to see how this decision was worded, how the Fourth Circuit tackled the issue of deference, and what that means moving forward as the Fourth Circuit starts to look at appeals that will inevitably come, where they analyze the impact of these Attorney General decisions: Matter of AB, Matter of LEA being the ones that are on the forefront of my mind and my caseload.

Jacob Tingen: But the long and short of this decision is that Matter of Castro-Tum, at least in the Fourth Circuit, is no more. Immigration judges can now administratively close cases, they can better manage their docket, leading to greater efficiencies. Now, will the government oppose administrative closure? It’s been my experience under this administration that they’re paid to say no. And so, when we ask for things like prosecutorial discretion, the answer is no. And when we ask to have things stipulated in terms of, “Hey, is this a social group in certain legal arguments?,” the answer is no. And I don’t think that that’s necessarily the government attorney’s fault; that is just kind of the priority that’s been communicated to them.

Jacob Tingen: But, at least administrative closure is now available, whereas it hasn’t been in the past. So I’ve got cases, and I think I’ve already mentioned them, where they’ve got pending U Visas, and in the past I’ve asked for administrative closure, which is a reasonable thing to ask for. It takes four years to adjudicate. And then to deport someone with a U Visa undermines the purpose of the U Visa. The whole point of the visa is to protect people from deportation because they’re helping our law enforcement agencies. I think I might take a look at some of those cases very closely and ask for administrative closure again.

Jacob Tingen: And so, I think that this is a great decision. I think the Fourth Circuit has done excellent work. There is more in-depth analysis I’m sure that you can find, but I’m trying to give you the layperson explanation of what’s going on and why this is so important, and then also let you know that the Fourth Circuit has kind of set up how they’re going to view some of these other Attorney General decisions as they get appealed up to them. So, an exciting day for many immigration practitioners; even though this is one of those blips in the immigration conversation, this one probably won’t make headlines in the way that other topics that I’ve already discussed have made headlines. And yet, it’s important and its implications are far-reaching.

Jacob Tingen: So, that’s it for Nation of Immigrants. Don’t forget, you can follow us on iTunes, on Facebook, on YouTube, and giving you the real truth when it comes to immigration news here in the U.S. Thanks again for listening.

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