Closed Deportation Cases to be Reopened
By: Reuben S. Seguritan
May 30, 2018
In May 2018, Attorney General Jeff Sessions ordered that deportation cases previously closed should be reopened. This is in line with the Trump administration’s policy of deporting all illegal immigrants, regardless of whether they pose a threat to the public safety or whether they have ties to the United States. Sessions justified this by stating that the Obama administration’s practice of “administrative closure” was illegal.
Administrative closure allowed judges to clear and close low-priority cases off their dockets despite the lack of legal status of the defendant who had deep ties to the United States. The cases usually involved illegal immigrants who were in the United States for years, had no criminal record and were married or had children who were US citizens. The Obama administration used this strategy to reduce the backlog in the immigration courts. The defendants in these cases were given the choice of either having their cases closed and not be deported, but without gaining any legal status, or continue with their cases and risk being deported. As expected, most of the defendants opted for the first option and had their cases closed. Some of them became eligible for work permits.
Sessions said that immigration judges were only allowed to resort to administrative closures when federal regulations explicitly mandated it. Once the case is being heard by the judge, the judge must make a decision and cannot close the case.
It is estimated that up to 350,000 cases will be reopened because of Session’s order. Sessions acknowledges that reopening these cases would not help ease the already huge backlog of the immigration courts. Furthermore, Immigration and Customs Enforcement (ICE) must file a petition to reopen the closed cases. Hence, the reopening of the closed cases is not automatic. But Sessions stressed that the recalendaring of the cases will occur in a gradual and consistent manner in order to have all of the cases heard and decided with finality at some point. Sessions said he will also do the following in order to handle the additional number of cases: hire more immigration judges; video teleconferencing will be increasingly used; and a new and faster electronic filing system will be introduced.
Critics of the plan to reopen the closed immigration cases stated that immigration judges should have the authority to make decisions and not be rushed when hearing cases. Judges should be able to make independent decisions on whether to deport a defendant based on the evidence presented. This is part of due process which is guaranteed to all defendants, including illegal immigrants. If the cases are reopened and added to the already huge docket of the judges with the existing backlog, it would be next to impossible for the judges to meet the new quota required of them. The judges will then be forced to breeze through the cases without giving ample time to each case to determine whether the illegal immigrant is entitled to the relief prayed for or should be deported. This in effect would make the immigration judges work for the Attorney General and not as independent decision makers and implementers of the law.
Furthermore, critics pointed out that prosecutors themselves often pushed to close these low-priority cases when they believed that the illegal immigrant would be found eligible for asylum or other relief in order to remain in the United States. In addition, the defendants in the closed cases relied on the assurances by the government, albeit the Obama administration, that they would in effect not be deported because their cases were closed. These immigrants should not be punished for believing that their cases were closed and followed the instructions the government gave them.