On November 24, 2020, the U.S. Court of Appeals for the Sixth Circuit issued a decision in the case of Hernandez-Serrano v. Barr, rejecting a challenge to Matter of Castro-Tum and concluding that Immigration Judges and the Board of Immigration Appeals (BIA) do not have the general authority to administratively close cases. The full decision can be found here.

In 2018, former Attorney General Jeff Sessions certified Matter of Castro-Tum to himself in an unprecedented move, ruling that “[I]mmigration Judges and the Board [BIA] do not have the general authority to suspend indefinitely immigration proceedings by administrative closure.” This decision was met with widespread criticism from immigration attorneys and advocates as it stripped immigration judges from their ability to exercise jurisdiction in adjudicating cases.

Administrative closure is a procedural tool that allows an immigration case to be put on hold indefinitely and for removal proceedings to be delayed. This allowed “individuals the opportunity to pursue more promising forms of relief, eliminated unnecessary costs associated with remaining in active removal proceedings, and allowed judges to prioritize other cases.”

The recent Sixth Circuit decision sets up a circuit split as both the Fourth and Seventh Circuit have concluded that Immigration Judges and the Board of Immigration Appeals (BIA) do have the authority to administratively close cases. The Fourth Circuit decision, Zuniga Romero v. Barr, can be found here. The Seventh Circuit decision, Meza Morales vs. Barr, can be found here.

While this recent decision rejected a challenge to Matter of Castro-Tum, the Court in footnote one suggested that a noncitizen subject to a final order of removal can apply for adjustment of status directly with the United States Citizenship and Immigration Services (USCIS) even if not an arriving alien. How USCIS will respond to this recent decision remains to be seen.