U.S. Attorney General Jeff Sessions. Photo: Diego M. Radzinschi/ALM

U.S. Attorney General Jeff Sessions has issued a decision that largely strips immigration judges of their power to dispose cases through administrative closure, a resolution to cases that judges have used in recent years to clear up their dockets.

Sessions' ruling opens the door to reopening more than 350,000 immigration cases that were disposed by administrative closure, which could further inundate immigration courts facing substantial case backlogs.

While it remains to be seen if the Department of Homeland Security will move to defrost administratively closed cases and how many cases could be affected, immigration attorneys say that Sessions' ruling may squeeze immigration courts that are already swamped with cases and negatively affect the human rights of immigrants.

Immigration judges have used administrative closures since at least the early 1980s, but Sessions said in his ruling that its use has grown “dramatically” since a 2012 ruling by the Board of Immigration Appeals made closures easier to obtain by scrapping the requirement that both parties in immigration proceedings must agree to closures.

Sessions said that closures are “effectively permanent” in most instances and that they encumber the “fair and efficient administration of immigration cases.” Following his ruling, DHS will be able to move to place an administratively closed case back on the calendar.

In a statement, Devin O'Malley, a spokesman for the Department of Justice, said the ruling eliminates the “unfettered” use of administrative closures.

“Congress never granted such broad authority to immigration judges, nor had the Attorney General delegated it,” O'Malley said. “This process—where immigration court cases were put 'out of sight, out of mind'—effectively resulted in illegal aliens remaining indefinitely in the United States without any formal legal status.”

The ruling makes an exception for instances in which administrative closure was granted as part of a settlement agreement.

“We can only hope that DHS is too busy to begin recalendaring many of these cases,” said immigration attorney Neil Weinrib of Neil A. Weinrib & Associates.

Administrative closures are generally used in three scenarios, said Hasan Shafiqullah, attorney-in-charge of the Legal Aid Society's immigration law unit: in cases in which an immigrant could be subject to removal but have “strong positive equities” in their favor, such as obtaining a green card or paying their taxes; cases where immigrants have matters pending in other courts, such as criminal court, that may have bearing on whether they are subject to removal; and cases in which DHS seeks administrative closure for an immigrant who is deemed incompetent and whose case could be permanently thrown out.

Following Sessions' ruling, Shafiqullah said he is concerned that the first category of cases may be the most vulnerable to be reopened, as prosecutorial discretion by the government in immigration cases has all but evaporated under President Donald Trump.

“Just the breadth of what he's doing is extraordinary and terrifying,” Shafiqullah said.

Jeffrey Chase, a New York City immigration lawyer who served as an immigration judge from 1995 to 2007, said Sessions' ruling takes away the power of immigration judges to “control their own dockets.”

Chase noted that the ruling comes just after the director of the immigration courts issued an edict requiring judges to complete 700 cases each year and as Sessions has indicated that he may take steps to further speed cases through the immigration courts.

Sessions has issued a ruling in another immigration case calling for parties to file briefs on what circumstances must be present for an immigration judge to have good cause to grant a continuance in the case.

“They're going to have to deport everyone in a quicker succession,” Chase said. “I think that's the end goal.”