Articles on Continuances

Introduction

Under 8 C.F.R. 1003.29, an immigration judge may grant a continuance of removal proceedings for “good cause shown.” A motion for continuance may be filed either by an alien respondent or by the government. The provision for continuances exists only in the Attorney General's regulations. There is no provision for continuances in the Immigration and Nationality Act (INA).

Over the years, the rules for considering motions for continuance have been developed through administrative guidance and administrative and judicial decisions. We have a growing collection of articles on these guidance documents and decisions here on site. In this index, we will catalogue our articles on motions for continuance and update it as necessary.

To learn more about important immigration precedent decisions, including those on continuances discussed here, please see our comprehensive and growing index of articles on that subject [see index].

Administrative Guidance Documents on Continuances

Attorney General Decisions on Continuances for Pursuing Collateral Relief

Matter of L-A-B-R-, et al., 27 I&N Dec. 405 (A.G. 2018)
Matter of L-A-B-R-, et al., 27 I&N Dec. 245 (A.G. 2018)

Administrative Decisions on Continuances Discussed in Matter of L-A-B-R-

Matter of Silva-Rodriguez, 20 I&N Dec. 448 (BIA 1992)
Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983)
Matter of Quintero, 18 I&N Dec. 348 (BIA 1982)
Matter of Kotte, 16 I&N Dec. 449 (BIA 1978)
Matter of M-, 5 I&N Dec. 552 (BIA 1954)
Matter of P-, 4 I&N Dec. 684 (BIA 1952)

Other Administrative Decisions on Continuances

Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018)
Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018)
Matter of W-A-F-C-, 26 I&N Dec. 880 (BIA 2016)

Judicial Decisions on Continuances

Merchant v. U.S. Atty. Gen., 461 F.3d 1375 (11th Cir. 2006)

Administrative Guidance on Continuances

The articles in this category will discuss administrative guidance documents on continuances.

OPPM 17-01: Continuances (Jul. 31, 2017)

See our full article on the memorandum to learn more.

The Chief Immigration Judge published a memorandum on continuances for all immigration judges. The memorandum focused on the necessary balancing of consideration of motions for continuance with concerns about administrative efficiency. It provided guidance on how to consider motions for continuance generally and how to assess four specific categories of continuance requests. The memo was later cited favorably by Attorney General Jeff Sessions in Matter of L-A-B-R-.

AG Memo: Reviewing Our Commitment to the Timely and Efficient Adjudication of Immigration Cases in the National Interest (Dec. 5, 2017)

See our full article on the memorandum to learn more.

In this memorandum, Attorney General Jeff Sessions provided guidance to immigration judges on the timely and efficient adjudication of immigration cases. He singled out factors behind the growing backlog of cases, including the increase in the number of continuances. He noted that OPPM 17-01 was one part of the effort to address the problem.

OOD PM 19-05: Guidance Regarding the Adjudication of Asylum Applications Consistent With INA 208(d)(5)(A)(iii) (Nov. 19, 2018)

See our full article on the memorandum to learn more.

The Director of the Executive Office for Immigration Review (EOIR) published a memorandum stating that it is the priority of the EOIR to adjudicate asylum cases within 180 days, absent “exceptional circumstances.” In the context of asylum applications before an immigration judge, the Director distinguished the “good cause” standard for granting continuances from the “exceptional circumstances” standard for allowing an exception to the 180-day target for adjudicating an asylum application. The memorandum takes the position that “exceptional circumstances” is a higher standard than “good cause.” Accordingly, circumstances that support a “good cause” finding for a continuance do not necessarily constitute “exceptional circumstances” relieving an immigration judge of his or her duty to adjudicate an asylum application within 180 days. It remains to be seen the full extent of the effect this new policy will have on immigration court proceedings involving asylum applications.

Attorney General Decisions on Continuances for Pursuing Collateral Relief

This section encompasses two articles on the important Attorney General precedent decision on weighing requests for continuance to allow an alien respondent the opportunity to pursue collateral relief from removal.

Matter of L-A-B-R-, et al., 27 I&N Dec. 405 (A.G. 2018)

See our full article on the precedent decision to learn more.

Matter of L-A-B-R- is a highly consequential decision on continuances. In the decision, the Attorney General defined what constitutes “good cause” for a continuance sought to pursue collateral relief from removal. Considering whether good cause has been shown involves balancing a number of factors. The Attorney General highlighted the significance of evaluating whether the respondent is (1) likely to be granted collateral relief, and (2) whether such relief would materially affect the outcome of removal proceedings. Furthermore, in a more general point on continuances, the Attorney General made clear that an immigration judge may not grant a motion for continuance for any reason absent good cause may not grant a continuace for no reason at all.

The Attorney General incorporated, with modifications, the frameworks set forth in Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009); Matter of Rajah, 25 I&N Dec. 127 (BIA 2009); Matter of Sanchez Sosa, 25 I&N Dec. 807 (BIA 2012).

Matter of L-A-B-R-, et al., 27 I&N Dec. 245 (A.G. 2018)

See our full article on the precedent referral to learn more.

In this decision, Attorney General Jeff Sessions referred Matter of L-A-B-R- to himself for review. This article discusses the initial referral. As we discuss above, the Attorney General has already published a decision in the case.

Administrative Decisions on Continuances Discussed in Matter of L-A-B-R-

In this section, we will list articles on administrative preference decisions which were cited to by the Attorney General in his Matter of L-A-B-R- decision.

Matter of Silva-Rodriguez, 20 I&N Dec. 448 (BIA 1992)

See our full article on the precedent decision to learn more.

In Matter of Silva-Rodriguez, the BIA vacated the decision of an immigration judge to grant a one-year continuance in order to allow the respondent to establish genuine rehabilitation for purpose of establishing eligibility for relief under former section 212(c) of the INA. The Attorney General cited to Matter of Silva-Rodriguez in Matter of L-A-B-R- as an example of a general prohibition against using continuances to grant proverbial forms of relief that do not exist in the INA or the implementing regulations.

Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983)

See the section of our relevant article to learn more

In Matter of Sibrun, the Board affirmed the denial of a continuance based on counsel's claim that she had not had time to prepare her case and present evidence. The Board held that when a continuance is sought on this basis, the respondent must, at the very least, make a reasonable showing that the lack of preparation occurred despite a reasonable good faith effort to be ready to proceed and that any new evidence obtained during the continuance would be probative, noncumulative, and favorable to his or her claims.

Matter of Quintero, 18 I&N Dec. 348 (BIA 1982)

See our full article on the precedent decision to learn more.

In Matter of Quintero, the Board affirmed the denial of a continuance that the respondent had sought in order to pursue relief in the form of deferred action. The Attorney General cited to the decision for its statement that a continuance sought in order to pursue adjustment of status on the basis of an approved immigrant visa petition is not warranted where the alien would not be able to actually apply for adjustment of status until some date in the distant future, thus rendering the prospect of relief “speculative.”

Matter of Kotte, 16 I&N Dec. 449 (BIA 1978)

See our full article on the precedent decision to learn more.

The BIA affirmed the denial of a continuance where the request was based upon a pending employment-based immigrant visa petition and application for adjustment of status. The Board held that the existence of the petition and adjustment of status application did not necessitate the granting of a continuance. The Attorney General cited to the decision for the proposition that a continuance may not be justified where the potential relief from removal remains speculative.

Matter of M-, 5 I&N Dec. 552 (BIA 1954)

See our full article on the precedent decision to learn more.

The Board affirmed the denial of an adjournment of proceedings based on a pending adjustment of status application with the former INS. The Attorney General cited favorably to the Board's statement that a pending adjustment of status application does not create an absolute right to the adjournment of proceedings. Instead, proceedings may be adjourned, or continued, for a reasonable period if the respondent shows good cause. In some cases, a pending application for adjustment of status may support a good cause showing.

Matter of P-, 4 I&N Dec. 684 (BIA 1952)

See the section of our relevant article to learn more.

In Matter of P-, the BIA affirmed the denial of an adjournment of proceedings to allow a respondent time to procure evidence that would have had no bearing on the question of whether he was deportable.

Other Administrative Decisions on Continuances

This section discusses other administrative decisions which, to some extent, address continuances.

Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018)

See our full article and the section of the article dealing with continuances.

The BIA held that a respondent failed to establish good cause for a continuance where (1) the case had already been continued once; (2) the respondent had not shown that he was eligible for any form of relief from removal; and (3) the respondent's potential future eligibility for adjustment of status was speculative. Notably, the Board relied on Matter of L-A-B-R-, which had been published shortly prior to its decision in Matter of Bermudez-Cota.

Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018)

See our article on the factual and procedural history and our section of the article on the part of the decision which dealt with motions for continuance. For further information, please consult our article index on Matter of Castro-Tum.

In Matter of Castro-Tum, the Attorney General concluded that immigration judges have no general authority to administratively close removal proceedings. The Attorney General found the explicit existence of continuance authority relevant to his decision.

Matter of W-A-F-C-, 26 I&N Dec. 880 (BIA 2016)

See our full article on the precedent decision to learn more.

The Board held that a motion for continuance by the government in order to properly re-serve a Notice to Appear on a minor because the initial service was procedurally defective should be granted.

Judicial Decisions on Continuances

In this section, we will list our articles on judicial decisions about continuances.

Merchant v. U.S. Atty. Gen., 461 F.3d 1375 (11th Cir. 2006)

See our full article on the precedent decision to learn more.

In Merchant, the Eleventh Circuit vacated the decision of the BIA affirming the denial of a continuance to a respondent who had met all of the statutory prerequisites for section 245(i) adjustment except for approval of his pending immigrant visa petition. Attorney General Sessions cited favorably to the decision in Matter of L-A-B-R.