Board of Immigration Appeals Will Disregard DHS Deportation Priorities

Yesterday, the U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals (BIA) issued a decision on a rather dull administrative topic, but one that potentially has far-reaching effects in immigration court.

In the Matter of W-Y-U-, the BIA upended five years worth of precedent when it clarified that the primary consideration for an immigration judge evaluating closing or pausing proceedings—called an administrative closure—is whether the opposing party to the closure has persuasive reasons for the case to proceed on the merits. Further, whether an alien falls within the Department of Homeland Security’s enforcement priorities, or will actually be removed, is outside of the scope of issues for a court to consider.

In this case, an asylum-seeker from China argued against the administrative closure sought by DHS, asking instead for the case to proceed to a conclusion on the merits; i.e., whether he would be granted asylum.

Administrative closure—different from termination of proceedings—simply acts as a docket management tool for DHS; usually, one party eventually moves to have the case put back on the docket calendar. However, it is not uncommon for the closure to remain indefinite. Each case is reviewed independently based on a number of factors, including: the reason the closure is sought, the basis of opposition to the closure, the anticipated duration of the closure, and whether either party bears responsibility for the delays.

The holding in this case provides additional guidance where one party opposes the closure, and will operate to ensure there is more finality in immigration proceedings, especially when there is a request for a decision on the merits.

Citing a strong public interest in promptly and fairly bringing litigation to a close, the decision also emphasizes that unreasonable delay in the proceedings operates not only to the detriment of aliens seeking relief, but also to the detriment of the government by delaying removal of aliens, thus leaving them without status in the U.S. Either way, the considerations for closure should apply equally to the respondents and DHS.

By strengthening the primary factors to consider in these cases, the court not only provides necessary protections to the parties opposing closure, but also ensures that the courts remain independent from considering the “priorities” of DHS and the Trump administration in this specific area of the law.

Photo by Pixabay on Pexels

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