Administrative closures on the rise?
Prosecutorial discretion (PD) is the authority of an agency to choose what charges to bring and how to pursue each case. The Department of Homeland Security has been exercising PD to administratively close cases to help clear the immense backlog of proceedings before the Immigration Court and Board of Immigration Appeals (BIA). By exercising PD to administratively close proceedings, the Department of Homeland Security requests an Immigration Judge or the Board of Immigration Appeals (BIA) to indefinitely remove a case from their docket or calendar. A case is eligible for administrative closure via PD if the person is in removal proceedings but has not yet received a final order of removal. Administrative closure does not confer legal status or grant any relief; it simply means that the individual will have no further hearings unless s/he or the Department of Homeland Security requests one.
Because of limited resources and the vast backlog of cases in Immigration Courts, it is often necessary for the Department of Homeland Security to exercise PD. However, it was never intended to be a means of handling new immigration cases. According to TRAC Immigration, it has become much more common to use PD to handle immigration cases as opposed to just reducing the case backlog.
In the fiscal year 2012 4.7% of immigration cases were closed via PD, while in 2013 that figure was 8.5% and in the first quarter of the 2014 fiscal year (December to October 2013) 7% of cases were closed due to PD.
The numbers from individual Immigration Courts vary significantly. Since 2011 the Seattle Court has closed 29.8% of cases due to PD while the Tucson and Los Angeles courts have closed 26% and 23.7% of cases, respectively, via PD.
At the other end of the spectrum, the Houston Court closed only 1.7% of cases due to PD and the New York City and Chicago courts closed just 3.7% and 5% of cases, respectively, because of PD. The Cleveland Court closed 8.7% of cases due to PD, slightly above the national average.
According to TRAC Immigration, the disparity in PD closures among Immigration Courts may be due to a variety of reasons. While the variety in PD closures may be due to varying standards among the Courts, it also suggests that Courts with low rates of PD closures may do a better job of screening out cases before they make it to Court. This would indicate that Courts with high rates of PD administrative closures may be inadequately reviewing cases.
“Once Intended to Reduce Immigration Court Backlog, Prosecutorial Discretion Closure Continue Unabated”. TRAC Immigration. http://trac.syr.edu/immigration/reports/339/