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ICE adds administratively closed cases to the docket

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ICE (Immigration and Customs Enforcement) is planning to restart thousands of deportation cases in accordance with the agency’s new policy. Specifically, ICE’s new policy affects foreign nationals in the U.S. whose cases are currently administratively closed. The initiative could result in the recalendaring of more than 355,000 cases – bringing the already overburdened immigration court backlog to over 1 million cases.

As background, administrative closure is a mechanism used to temporarily pause removal proceedings by removing the case from the immigration judge’s docket. Over the years, administrative closure has proven to be a vital docket-management tool for Immigration Judges across the country.  Both DHS and the immigrant have the ability to request that a case be administratively closed.   

Administrative closure does not terminate removal proceedings and it does not provide a noncitizen with any immigration status. It is merely a temporary measure that effectively tables the matter until either party moves to recalendar (reschedule) the case. Deferring removal hearings can allow the individual an opportunity to find relief that the immigration court cannot provide. During this time, the immigrant could possibly obtain an immigration benefit that is not available while an immigration case is active.

Recently, the highly effective docket-management tool has come under fire.  Thanks to a May 2018 decision issued by Attorney General Jeff Sessions, Immigration Judges and the Board of Immigration Appeals no longer have the authority to administratively close cases.  Additionally, ICE is now responsible for making the decision to recalendar cases that are currently administratively closed.  

Under the new policy, ICE prosecutors are instructed to prioritize the recalandering of cases in the following order:

  1. Cases involving a foreign national being detained.
  2. Cases pertaining to an immigrant with a criminal record.
  3. Cases where ICE’s most recent motion to recalendar was denied.
  4. Cases that were administratively closed over ICE’s objections.
  5. All other cases will be recalendared on a case-by-case basis at the local office’s discretion.

These recently released instructions make it clear that ICE intends to recalander virtually all cases that have been administratively closed. This development will put an already overwhelmed immigration court system even further behind. Currently, the immigration court backlog is at 730,000 cases. With ICE’s new guidance, the backlog will exponentially grow while immigrants with administratively closed cases wait for ICE to determine their fate.

As of today’s date, ICE has already started to recalander affected cases.