3rd Circuit backs immigration judges' power to close deportation cases

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REUTERS/Andrew Kelly

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(Reuters) - A U.S. appeals court on Wednesday became the latest to rule that immigration judges have the authority to indefinitely close deportation cases while awaiting rulings in related proceedings, rejecting the conclusion of Trump-era Attorney General Jeff Sessions.

The 3rd U.S. Circuit Court of Appeals in a 2-1 ruling said the Board of Immigration Appeals should have allowed Mexican citizen Abner Arcos Sanchez to ask a judge for "administrative closure" of his removal case so he could seek renewal of his status under the Obama-era Deferred Action for Childhood Arrivals program.

Joining the 4th and 7th Circuits, the court said Sessions' 2018 opinion in Matter of Castro-Tum was wrong. Sessions said the longstanding practice of judges removing cases from their dockets was beyond their authority because it led to a majority of cases never being resolved. The 6th Circuit agreed with Sessions last year in Hernandez-Serrano v. Barr.

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The Department of Justice in December adopted a rule codifying Castro-Tum, which is not directly affected by the court rulings. But the rejection of Sessions' decision by multiple courts suggests the rule could be vulnerable to legal challenges, and could help the Biden administration justify repealing it.

Jerard Gonzalez of Bastarrika Soto Gonzalez & Somohano, who represents Sanchez, did not immediately respond to a request for comment. Neither did DOJ.

Sanchez entered the U.S. illegally in 2002, when he was seven, and was granted temporary status under DACA in 2012, according to court filings.

In 2019, Sanchez was charged with sexual assault and child endangerment in New Jersey and his DACA status was revoked.

An immigration judge ordered Sanchez's deportation, and the criminal charges against him were dismissed.

Before the BIA, Sanchez argued that the dismissal of the charges meant he was eligible to renew his DACA status, which would affect the removal proceeding. He asked the board to remand the case so he could request administrative closure while his DACA application was pending.

The BIA rejected his bid, saying Castro-Tum precluded the judge from closing Sanchez's case.

The Immigration and Nationality Act permits judges and the BIA to "take any action ... that is appropriate and necessary for the disposition of (deportation) cases."

Since the 1980s, judges have routinely used administrative closure to manage their dockets by indefinitely putting off cases that may be mooted in proceedings before other agencies.

But Sessions in Castro-Tum said that because closing cases usually prevented a disposition, the practice was not authorized by the INA.

On Wednesday, the 3rd Circuit majority agreed with Sanchez that a delay in a removal case does not necessarily impede its disposition. And whether immigration judges are using administrative closure wisely, or too much, is distinct from whether they have the legal authority to do so, wrote U.S. District Judge Marilyn Horan of the Western District of Pennsylvania, who sat by designation.

Horan was joined by Circuit Judge Kent Jordan.

In dissent, Circuit Judge Paul Matey agreed with Sessions and the 6th Circuit that the authority to “dispose” of immigration cases does not include permission to delay a decision, potentially forever.

"No doubt that is more administratively convenient for the IJ and BIA," Matey wrote. "But it is not an action encompassed within the Attorney General’s delegation of authority."

The case is Sanchez v. Attorney General, 3rd U.S. Circuit Court of Appeals, No. 20-1843.

For Sanchez: Jerard Gonzalez of Bastarrika Soto Gonzalez & Somohano

For the government: Brendan Hogan of the U.S. Department of Justice

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.