Elizabeth Montano cited in Circuit Court ruling

| May 13, 2021 | Firm News |

Our laws foster a free and fair society in the United States. Every attorney believes in using the law to protect the rights and privileges of the people. And sometimes, our representation results in needed changes.

Such was the case when the U.​S.​ Court of Appeals for the Third Circuit cited Kurzban Kurzban Tetzeli and Pratt P.A. attorney Elizabeth Montano in the court’s decision regarding Abner Antonio Arcos Sanchez v. United States of America .

Montano’s “The Rise and Fall of Administrative Closure in Immigration Courts” previously won the Yale Law Journal’s 2019 Student Writing Competition and was published in the Yale Law Journal Forum in 2020.

The case of Arcos Sanchez

Arcos Sanchez came to the U.S. from Mexico as a seven-year-old in 2002. He was then approved for DACA status in 2012. While he subsequently renewed that status, Sanchez was then arrested and charged for sexual assault and endangering the welfare of a child on April 8, 2019.

United States Citizenship and Immigration Services (USCIS) on the Department of Homeland Security revoked the DACA status on May 17 because he violated the conditions of DACA eligibility.

In its decision, the third circuit stated: “In June 2019, the Department of Homeland Security took Arcos Sanchez into custody, served him with a Notice to Appear, and charged him as being present without having been admitted or paroled.”

Criminal case dismissed

The criminal case was dismissed two weeks after the administrative closure of the immigration case. Sanchez argued that he should be eligible for DACA status renewal. This was denied by the Board of Immigration Appeals (BIA) because the Justice Department claimed that Sanchez was not eligible because there had already been administrative closure on the case. The Appeals Courts have split on whether the IJ and Board have the general authority to order closure in in absentia cases.

Montano’s argument cited in the dissent

Dissenting Judge Paul Matey cited Elizabeth Montano’s The Rise and Fall of Administrative Closure in Immigration Courts, 129 Yale L.J. Forum 567, 570 (2020) (stating that “[t]he practice of administrative closure began in the 1980s based on a Department of Justice (DOJ) memorandum that listed administrative closure as an option available to immigration judges when a person failed to appear at a hearing.” Yet, there was no statutory or regulatory foundation on the matter.

The dissent also quoted Montano as saying: “Thus, by all appearances, administrative closure was simply a device created by the IJs themselves.”

Montano feels that immigration judges sometimes are trying to find a way to clear their dockets. There is no resolution to this administrative closure issue in immigration court, but Montano’s writing advances some important points. Without due process in the immigration courts, the consequences are severe. Sanchez v. The United States is also an example of how even the federal courts will turn to the writings of attorneys to find clarity on important legal matters.