Much has been written and adorably dramatized by me and others about the new prosecutorial discretion policy announced by President Obama and his administration. Despite continued skepticism in the media, the policy is being boldly implemented, at least in San Diego, where I practice. Pilot programs are underway in Baltimore and Denver and files are being reviewed nationwide.
Implementation is being carried out by the Office of Chief Counsel (OCC), a.k.a., Immigration and Customs Enforcement’s Office of the Principal Legal Advisor, ICE’s lawyers who prosecute removal cases for the Department of Homeland Security. Criticism of DHS is chiefly because law enforcement officers at ICE and Customs and Border Protection (CBP) appear to be arresting and placing aliens in removal proceedings as usual, and U.S. Citizenship and Immigration Services (USCIS) is similarly instituting removal proceedings as before the new policy was announced (though there is a new memo to guide USCIS in light of the new policy). Because of this, the burden falls on the OCC to evaluate cases for prosecutorial discretion when cases reach the litigation stage, while for officers in the field, it is business as usual. This is supposed to change, but largely it has not yet.
To illustrate, according to the policy, a crime free, undocumented mother with long residence, family ties, and young children for whom she supports and raises would be a good candidate for prosecutorial discretion. When such a case is brought to the OCC’s attention, the OCC will presumably consider exercising its discretion favorably. However, it was ICE, CBP, or USCIS that first encountered this mother and placed her in removal proceedings in the first place. Often, this encounter included an arrest and detention – all this trauma for a case that ultimately will not be pursued. Critics maintain that it would be wiser for agents in the field to desist from arresting such a person and placing the person in removal proceedings in the first place as part of the new policy.
There are good reasons why ICE and CBP take such people into custody and why this is a good thing. First, upon an initial encounter, how is an agent supposed to know the equities of a person? To find out, an arrest, fingerprinting for a record check, and an interview (interrogation) must occur, expending the resources that the policy is supposed to spare. Second, sometimes being in proceedings is a benefit. It makes an alien eligible for Cancellation of Removal for Certain Nonpermanent Residents, a form of relief that the alien can pursue only in removal proceedings. Also, only after applying for Cancellation relief can the alien apply for a work permit. Though there is uncertainty as to whether a work permit can be renewed once prosecutorial discretion is granted after removal proceedings are initiated and the alien applies for relief and receives an initial one-year work permit, at least the potential for continued employment authorization exists if proceedings are initiated. Further, it appears the job performance metrics for ICE and CBP include apprehensions. Until there are new metrics, ICE and CBP officers have serious disincentives to let people go.
The way the new policy is being implemented now is that when an alien is in removal proceedings, the OCC, should it feel that exercising prosecutorial discretion is appropriate, will join with the alien in a motion to the immigration court to administratively close proceedings. Administrative closure is defined in a leading Board of Immigration Appeals case, Matter of Gutierrez, as a procedure whereby a case is temporarily removed from an Immigration Judge’s calendar or from the Board’s docket. The administrative closing of a case does not result in a final order. It is merely an administrative convenience which allows the removal of cases from the calendar in appropriate situations.
Matter of Gutierrez states that a case cannot be administratively closed unless the parties, i.e., the alien and the OCC, agree to it. However, there is another crucial player in the new policy, the immigration judge, who must sign off on the administrative closure because once a case is before the immigration court, only the immigration judge has authority to make decisions regarding the case, according to the regulations governing removal proceedings. The regulation at 8 CFR 1239.2 state that immigration officers can cancel a case before it is filed with the immigration court, but once filed, only the immigration judge can terminate a case.
Administrative closure is not a termination, but, like the granting of a continuance in a case, which is the postponing of the hearing, it is at the complete discretion of the immigration judge, as courts have held. Administrative closure is nothing more than an indefinite continuance as the BIA (referring to administrative closure as an indefinite continuance in its lead case) and courts have noted. What happens if the parties agree to administrative closure, but the immigration judge does not?
Attorneys practicing in immigration court experience immigration judges refusing to agree with the unfied position of parties all the time. The OCC and the alien may both agree that relief is warranted in a case, but the immigration judge will deny relief anyway. Other times, the parties agree to a continuance, but the immigration judge decides to go forward with the case anyway. In one appellate case, Diaz-Covarrubias v. Mukasey, the parties agreed to administrative closure, (though the record is not completely clear what the OCC’s position was), but the immigration judge decided to go forward and order the alien to leave under an order of voluntary departure. In that case, the Ninth Circuit Court of Appeals concluded that it lacked jurisdiction to review the immigration judge’s decision not to administratively close the case, which was a rather bizarre outcome considering the same court of appeals, in another case, Sandoval-Luna v. Mukasey, allowed for judicial review of the denial of continuances, which are just definite periods of administrative closure and thus rather indistinguishable from administrative closure.
The typical scenario in a prosecutorial discretion case is that an alien for whom prosecutorial discretion by administrative closure is sought is not eligible for relief from removal, but because of agency priorities, the OCC decides not to pursue the removal. The impetus for making a decision not to pursue the removal of a removable person is a policy emanating from the White House, ICE, and the Department of Justice.
Why would an immigration judge balk at administrative closure if the parties want it? The more appropriate question is why would an immigration judge agree to administratively close a case in the first place?
The authority of an immigration judge is defined by regulation, 8 CFR 1003.10(b), which states:
Powers and duties. In conducting hearings under section 240 of the Act and such other proceedings the Attorney General may assign to them, immigration judges shall exercise the powers and duties delegated to them by the Act and by the Attorney General through regulation. In deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases…. In all cases, immigration judges shall seek to resolve the questions before them in a timely and impartial manner consistent with the Act and regulations.
Key elements of the regulation are that an immigration judge must operate with:
(1) “independent judgment and discretion,”
(2) “consistency with … [the Immigration and Nationality] Act and regulations” (in fact this is said three times in the one paragraph, which is a strong indication it is something the immigration judge is not supposed to overlook), and
Feeling bound to policy memoranda to administratively close a case would be a failure to use independent judgment, so this cannot be a basis to administratively close. Suppose another President and another DHS Secretary and another Attorney General stated in memos or proclamations that anyone who is in the United States without authorization should be promptly deported with no opportunity for any type of hearing. Certainly no one would expect an immigration judge to follow such a directive, as, for one thing, he or she would not be exercising independent judgment.
Similarly, if the law and regulations require that a particular alien must be ordered removed or otherwise compelled to leave the United States, not issuing such an order would be contrary to the law and regulations. In fact, immigration judges have been admonished repeatedly, such as here and here (albeit, there was not consensus of the parties to administratively close these cases) for failing to remove aliens and instead administratively closing cases.
Finally, administrative closure is the opposite of concluding cases in a timely manner.
The point is not that immigration judges should ignore the new prosecutorial discretion policy. The regulation defining an immigration lawyer’s powers and duties expects immigration judges to take “appropriate and necessary” action to dispose of cases. Immigration judges are more aware than anyone of the backlogs in immigration court and how their time is “wasted” determining the fate of harmless and productive people when people who “should” be removed are able to avoid removal because of the backlogs. They are aware of people needlessly detained while awaiting a hearing because resources are expended on deciding cases for people for whom there is no pressing need to deport. To accomplish these more macro goals of reducing backlogs and prioritizing whom to deport, administrative closure is quite appropriate and consistent with independent judgment and discretion, following the law and regulations, and timely resolution of cases. However, rational minds can disagree.
Congresses and Presidents passed and signed the present immigration laws believing that deporting people who are now receiving prosecutorial discretion was a good idea. They have not repealed these laws. Immigration judges compete for the job of ordering these deportations. Huge bureaucracies have been enforcing these laws with great zeal. The citizenry appears opposed to, or deeply divided about changing these laws.
So far, I have not heard of an immigration judge or the BIA balking on granting an administrative closure motion submitted by the respondent alien and the OCC, but it is a very real possibility such a thing will happen. While to some, the new policy is the height of efficiency and to others a humane step, to others, and presumably at least some immigration judges, it is contrary to the laws and regulations immigration judges are duty-bound to independently and expeditiously apply. So, do not be surprised if for some immigration judges, the ruling on a joint motion to administratively close proceedings submitted to them is, “Denied.” Posted December 17, 2011.
Jonathan D. Montag is a State Bar of California certified Immigration and Nationality Law Specialist. He is a former chairman of the State of California Immigration and Nationality Law Advisory Commission of the Board of Legal Specialization. He was an AILA San Diego Chapter Chair. Mr. Montag has successfully argued cases before the District Court for the Southern District of California and the Ninth Circuit Court of Appeals and testified as an expert in the District Court for the Southern District of California and the California State Bar Court. Mr. Montag was named a 2005 Attorney of the Year by California Lawyer Magazine and has been named to the San Diego Super Lawyers list for immigration in 2007-2011.