A panel of the Ninth Circuit has refused to approve a joint motion to administratively close an appeal on its docket for petitioners that the Department of Homeland Security has deemed to not be an enforcement priority. In so doing, the Court placed the burden on the government to exercise its prosecutorial discretion to remand a case to the agency, and seek dismissal or administrative closure at that level.
“The burden is on the Government to use one of the many tools it has for not enforcing immigration law in a particular case if that is its policy preference. Shelving a case indefinitely on our docket to avoid having a final decision rendered in a case properly presented to us is not one of those tools. Indeed, this case demonstrates the absurdity of what the parties are asking. Sarkar filed his petition in August 2017. A stay of removal was entered a few months later, and the case has been fully briefed since August 2018. Given our significant backlog of immigration cases, this case was not moved toward resolution until over three years later in October 2021 when we asked the parties whether they still wanted to proceed to decision or whether they anticipated an alternative resolution. Both parties responded that they wanted to proceed. The court then scheduled the case for oral argument and we began our preparations only to have the parties request a few weeks later that the case be administratively stayed because it is not an enforcement priority. This is not a good use of judicial resources. The executive branch should sort out its enforcement priorities, about which we express no opinion, without burdening the already-strapped judiciary.”
The full text of Sakar v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/07/01/17-72212.pdf