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

On August 16, 2018, Attorney General Jeff Sessions issued an immigration precedent decision in Matter of L-A-B-R- et al., 27 I&N Dec. 405 (A.G. 2018) [PDF version]. In the decision, the Attorney General clarified and narrowed the circumstances in which an immigration judge may grant a motion for continuance of removal proceedings in order to allow a respondent to pursue collateral relief from a different authority.

Attorney General Sessions held that an immigration judge may only grant a motion for a continuance of removal proceedings “for good cause shown,” in accordance with 8 C.F.R. 1003.29. This means that an immigration judge may not grant a continuance for any other reason or for no reason at all.

In the event that an alien respondent seeks a continuance to pursue collateral relief from an authority other than the immigration judge, the Attorney General held that the “good cause shown” standard “requires consideration and balancing of multiple relevant factors,” and in doing so he cited favorably to the Board precedent decision in Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009). These factors include an assessment of the likelihood that the respondent would be granted collateral relief and whether the granting of such collateral relief would materially affect the outcome of removal proceedings. The Attorney General also instructed immigration judges to consider “relevant secondary factors.”

In this article, we will examine the factual and procedural history of Matter of L-A-B-R-, Attorney General Sessions’ analysis and conclusions, and the effect that this decision will have on immigration proceedings going forward. Matter of L-A-B-R- was published shortly after the Attorney General foreclosed administrative closure in in most circumstances in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) [PDF version]. To learn more about Matter of Castro-Tum and related cases, please see our full article index on the subject [see index]. To learn more about continuances, please see our index on that subject [see index].

Factual and Procedural History: 27 I&N Dec. at 409-11

The Attorney General reviewed three separate decisions in Matter of L-A-B-R-. In each of the three cases, an immigration judge granted the respondent’s motion for continuance of removal proceedings in order to allow the respondent to pursue collateral relief from another authority.

The first respondent, L-A-B-R-, entered the United States without authorization in 2015. The Department of Homeland Security (DHS) initiated removal proceedings against L-A-B-R- on that basis. L-A-B-R- conceded removability at his first removal hearing but stated that he intended to file for asylum with the immigration court. He was granted two separate continuances relating to his asylum application at his next two removal hearings. At his fourth hearing, L-A-B-R- stated that he intended to marry a U.S. citizen and pursue lawful permanent resident status based on a petition that would be filed by his U.S. citizen spouse. At a later hearing, L-A-B-R- submitted evidence that he had married a U.S. citizen and that she was in the process of completing a Form I-140 petition on his behalf. He stated that he would depart the United States to apply for a visa were the petition to be approved. L-A-B-R- sought a continuance in order to give his wife time to pursue the immigrant visa petition with the DHS. The DHS objected to the continuance because L-A-B-R- was “not prima facie eligible for adjustment of status before the Immigration Judge or any other agency within the United States.” However, the immigration judge overruled the DHS’s objection and again continued the removal proceedings.

The second respondent, Somphet, was paroled into the United States in 2005. In 2010, she applied for a visa and adjustment of status with the United States Citizenship and Immigration Services (USCIS) on the basis of an immigrant visa petition filed by her U.S. citizen husband. However, the USCIS determined that Somphet’s parole documents were invalid, rendering her inadmissible under section 212(a)(6)(C)(i) for fraud or misrepresentation of a material fact. Somphet sought a waiver of inadmissibility, but this waiver, along with her application for adjustment of status, was denied in 2013 on the basis of her failing to show “extreme hardship.” The DHS initiated removal proceedings against Somphet based on her inadmissibility. The immigration judge granted Somphet two continuances related to allowing Somphet to retain counsel. At the third hearing, Somphet applied for a waiver of inadmissibility and adjustment of status with the immigration judge. In response, the DHS argued that the immigration judge lacked jurisdiction. After granting two more continuances to consider the issue, the immigration judge concluded that she did, in fact, lack jurisdiction. However, the immigration judge granted yet another continuance, this time over the objections of DHS, to allow Somphet to reapply for a waiver of inadmissibility and adjustment of status with the USCIS.

The final respondent, McCalla, entered the country in 1990 on a valid visa. However, McCalla would overstay his visa and be placed in removal proceedings in 2005 after he was arrested. The Attorney General explained that McCalla’s removal proceedings were continued over 30 times, with many of these continuances having been opposed by the DHS. These continuances were granted for many reasons, “including … reasons related to his marriage to a U.S. citizen, additional arrests and criminal convictions, and efforts to collaterally attack those convictions.” In 2017, the immigration judge again granted McCalla a continuance over the objections of DHS, this time to allow him to pursue a pardon of one of his convictions from the Governor of Pennsylvania. In opposition, the DHS argued that even if McCalla procured the pardon, he would still not be prima facie eligible for adjustment of status.

The DHS appealed from all three of these decisions to grant continuances over its objections. In “three nearly identical orders” issued in late 2017 and early 2018, the Board of Immigration Appeals (BIA) denied the DHS’s request for interlocutory review of the continuances granted in these three cases. The Board reasoned that it generally only considers interlocutory appeals when the cases present “significant jurisdictional questions about the administration of the immigration laws, or to correct recurring problems in the handling of cases by Immigration Judges.” The Board concluded that none of the three cases met its limited criteria for interlocutory review, and it returned them to the immigration courts from which they came without taking any further action. The Board noted in its supplemental briefing to the Attorney General that the Board had similarly denied interlocutory review in more than two dozen appeals “on the same basis.”

On March 22, 2018, Attorney General Sessions referred these three cases to himself for review in Matter of L-A-B-R- et al., 27 I&N Dec. 245 (A.G. 2018) [PDF version]. We discuss the referral in a separate article [see article].

Background of the Issues: 27 I&N Dec. at 406-08

Attorney General Sessions began by discussing the strong interest of the Government in dispensing of immigration cases in an orderly and expeditious way, a point which he had discussed extensively in Matter of Castro-Tum, 27 I&N Dec. at 289-90. At page 289 of Matter of Castro-Tum, the Attorney General explained that, once the DHS initiates removal proceedings, immigration judges and the BIA must proceed “expeditious[ly] to resolve the case.” He observed that the statutes make clear that Congress intended for the INA to streamline the removal process (see e.g., section 241(a)(1)(A) of the INA), as was also observed by the Supreme Court of the United States in Stone v. INS, 514 U.S. 386, 399-400 (1995) [PDF version]. 8 C.F.R. 1003.10(b) and 1003.12 expressly require immigration judges to promote the “timely” and “expeditious” completion of removal proceedings.

The Attorney General recognized that continuances, when properly utilized, “may advance the efficient enforcement of the immigration laws.” In United States v. Tanner, 544 F.3d 793, 795 (7th Cir. 2008) [PDF version], the United States Court of Appeals for the Seventh Circuit observed that continuances may “promote efficient case management.” For example, the Attorney General explained, “[w]hen a key participant in a hearing falls ill … or an impending factual development will alter the course of the case, it can be wasteful and inefficient to plow ahead immediately.” However, in Lee v. Kemna, 534 U.S. 362, 366 (2002) [PDF version], the Supreme Court noted that continuances are “readily susceptible to use as a delaying tactic.” To this effect, the Attorney General added that “[c]onvening additional hearings imposes no small burden on the immigration court.” In INS v. Rios-Pineda, 471 U.S. 444, 450 (1985) [PDF version], the Supreme Court noted that aliens who are in the United States illegally but who also wish to remain in the United States “ha[ve] a substantial incentive to prolong litigation in order to delay physical deportation for as long as possible.” You may read more about Rios-Pineda in our full article [see article].

Immigration judges are authorized to grant motions for continuances under 8 C.F.R. 1003.29, but only for “good cause shown.” 8 C.F.R. 1240.6 also authorizes immigration judges to pause proceedings “for good cause shown.” In a footnote, the Attorney General explained that both of these regulations derive from former 8 C.F.R. 242.13 (1958). Because the Board and the parties agreed that the same good-cause standard governs both 8 C.F.R. 1003.29 and 1240.6, and because the Attorney General “operate[d]on the same understanding,” he stated that he would refer only to 8 C.F.R. 1003.29, but that his conclusions about the good-cause standard would apply to both sections 1003.29 and 1240.6.

The Attorney General observed that while “the regulations do not define ‘good cause,” the inclusion of that standard “plainly confines the discretion of immigration judges to grant continuances.” The United States Court of Appeals for the Ninth Circuit recognized this position in Ahmed v. Holder, 569 F.3d 1009, 1014 (9th Cir. 2009) [PDF version], where it found that good cause does not mean “no cause” or “any cause.”

The Attorney General explained that the Board’s most current precedent on continuances emerged about ten years prior to his issuance of Matter of L-A-B-R-. On July 7, 2008, the United States Court of Appeals for the Third Circuit issued a precedent decision in Hashmi v. Att’y Gen., 531 F.3d 256, 261 (3d Cir. 2008) [PDF version], wherein it vacated a decision of the BIA affirming an immigration judge’s order denying a motion of continuance solely because of case completion goals. The respondent in Hashmi (petitioner in the Third Circuit decision) had requested a continuance on the basis that his being the beneficiary of a family-sponsored immigrant visa petition would have made him potentially eligible for adjustment of status if the petition were approved. The immigration judge denied the petition because he was obligated to complete cases “within a reasonable period of time.” Id. at 258-59.

The Board issued a published decision on remand from the Third Circuit in Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009) [PDF version]. In Matter of Hashmi, the Board listed the factors that the immigration judge should have considered when assessing a motion for continuance to allow the respondent to pursue a family-based immigrant visa petition. These factors were listed at page 790 of the decision, as follows (quoted):

(1) the DHS response to the motion;
(2) whether the underlying visa petition is prima facie approvable;
(3) the respondent’s statutory eligibility for adjustment of status;
(4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and
(5) the reason for the continuance and other procedural factors.

To be clear, the Board stated that the above list was “illustrative, not exhaustive.” Furthermore, it added that “the focus of the inquiry is the apparent ultimate likelihood of success on the adjustment application.” Id. at 790.

The Attorney General noted that the Board then expanded the Matter of Hashmi precedent when applying it in cases where respondents had filed motions for continuances to pursue other types of collateral relief. In Matter of Rajah, 25 I&N Dec. 127 (BIA 2009) [PDF version], the Board applied the Matter of Hashmi framework in a case where the respondent was seeking an employment-based immigrant visa (sought continuance in light of pending labor certification application). The Board further expanded the Matter of Hashmi framework in Matter of Sanchez Sosa, 25 I&N Dec. 807 (BIA 2012) [PDF version], wherein it applied the principles to a case where a respondent sought a continuance in order to pursue a U visa with the USCIS (the Attorney General noted that the Board tweaked the framework to account for procedural particularities associated with the U visa program).

The Attorney General explained that since Matter of Hashmi and its successor decisions were issued, there has been a “significant rise in the total number of continuances granted by the immigration courts.” In 2012, the Department of Justice’s (DOJ’s) Inspector General singled out the increase in the number of continuances as a “primary factor” contributing to longer delays in the immigration courts. (Internal citations omitted.) In that report, the Inspector General noted that a significant number of the continuances were granted to allow respondents to pursue collateral relief, specifically, pending family- and employment-based immigrant visa petitions.

Overview of Analysis and Conclusions: 27 I&N Dec. at 411-12

The Attorney General concluded that “[t]he overuse of continuances in the immigration courts” is “a significant and recurring problem.” In addition to creating additional administrative burdens on the immigration court system, the Attorney General explained that “[u]njustified continuances provide an illegitimate form of de facto relief from removal.” The Board itself observed in Matter of G-K-, 26 I&N Dec. 88, 93 (BIA 2013) [PDF version], that it and the immigration judges lack the “authority to create relief beyond what has been provided by the [INA] or the regulations.” In Matter of Silva-Rodriguez, 20 I&N Dec. 448, 450 (BIA 1992) [PDF version] [see article], the Board reversed an immigration judge’s order granting a one-year continuance, concluding that it, “in essence,” had granted the respondent a conditional waiver of inadmissibility. The United States Court of Appeals for the Sixth Circuit observed in Ukpabi v. Mukasey, 525 F.3d 403, 407-08 (6th Cir. 2008) [PDF version], that “a continuance, in effect, allows an alien to remain in the United States for a period of time without any defined legal immigration status.” It was for this reason that the Sixth Circuit in Ukpabi highlighted the importance of finding “good cause” before granting a continuance. Finally, in INS v. Doherty, 502 U.S. 314, 323 (1992) [PDF version], the Supreme Court observed that “as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.”

For those reasons, and because the Attorney General concluded that “unnecessary continuances undermine the detailed statutory and regulatory scheme established under the INA,” the Attorney General issued a new precedent decision on the proper interpretation of 8 C.F.R. 1003.29. First, he concluded that the multifactor tests set forth in Matter of Hashmi and its successor decisions should continue to be employed for determining whether a continuance should be granted in order to allow a respondent to pursue collateral relief for good cause shown. However, the Attorney General clarified “that the decisions should turn primarily on the likelihood that the collateral relief will be granted and will materially affect the outcome of removal proceedings.” (Emphasis added.) Furthermore, the Attorney General held that good cause is not shown in cases “when the alien has not demonstrated reasonable diligence in pursuing the collateral adjudication, DHS justifiably opposes the motion, or the requested continuance is unreasonably long, among other possibilities.”

Analysis of “Good Cause”: 27 I&N Dec. at 412-13

The term “good cause” appears not only in immigration law, but in other areas of law. While it is not uncommon, the Attorney General acknowledged that “the term ‘good cause’ has no settled meaning in law. To illustrate the wide range of interpretation of the standard, he cited to two published decisions of the Ninth Circuit. In Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) [PDF version], the Ninth Circuit stated that “extraordinary circumstances [are] a close correlate of good cause.” However, in Hall v. Sec’y of Health, Educ. & Welfare, 602 F.2d 1372, 1377 (9th Cir. 1979) [PDF version], the Ninth Circuit had held that “[g]ood cause is … not a difficult standard to meet.”

The term “good cause” does appear in other parts of the INA and its implementing regulations. Below, we will examine two of its other immigration context appearances, which were discussed by Attorney General Sessions.

In Matter of Rahman, 20 I&N Dec. 480, 482-83 (BIA 1992) [PDF version], the Board considered the term “good cause” in the context of 8 C.F.R. 1003.20(b), which authorizes changes of venue of immigration proceedings for “good cause.” There, the Board wrote that “[g]ood cause is determined by balancing the factors we have found relevant to the venue issue.”

Section 243(a)(3) of the INA provides that a district court “may for good cause suspend the sentence of an alien” for failing to comply with a removal order. The district judge may, where good cause is shown, order the release of the alien. Section 243(a)(3) requires the district court to consider various specific factors to determine whether good cause has been shown. These factors include “the age, health, and period of detention of the alien,” “the effect of the alien’s release upon the national security and public peace or safety,” and “the eligibility of the alien for discretionary relief under the immigration laws.”

The Attorney General directed that the immigration judges and the Board “should take a similar approach when a provision uses the term ‘good cause’ but does not define it.” In the context of 8 C.F.R. 1003.29, he concluded that “good cause” “requires consideration and balancing of all relevant factors in assessing a motion for continuance to accommodate a collateral matter.” Here, he cited favorably to the lists of factors set forth by the Board in Matter of Hashmi, 24 I&N Dec. at 790, 794; Matter of Rajah, 25 I&N Dec. at 135-36; and Matter of Sanchez-Sosa, 25 I&N Dec. at 812-13.

Principal Factors in Good Cause Analysis Under 8 C.F.R. 1003.29: 27 I&N Dec. at 413

The Attorney General stated that, while immigration judges and the Board must consider multiple factors in assessing whether there exists good cause for the granting of a motion for continuance for resolution of a collateral matter, not all factors are of equal importance. Thus, he listed the two principal factors that he directed must be considered in every instance (quoted):

(1) [T]he likelihood that the alien will receive collateral relief; and
(2) [W]hether the relief will materially affect the outcome of the removal proceedings.

As we discussed earlier, the Attorney General also held that immigration judges “should consider whether the alien has exercised reasonable diligence in pursuing that relief, DHS’s position on the motion, the length of the requested continuance, and the procedural history of the case.”

Significantly, he added that when an alien seeks a continuance, “the alien bears the burden of establishing good cause.”

In the following sections, we will examine the Attorney General’s in-depth discussion of these factors.

Assessing Whether Respondent is Likely to Procure Collateral Relief that would Materially Affect Outcome of the Removal Proceedings: 27 I&N Dec. at 413-15

The Attorney General held that “[w]hen a respondent requests a continuance to accommodate a collateral proceeding, the good-cause inquiry … must focus on whether the collateral matter will make a difference in removal proceedings…” Thus, the respondent bears the affirmative burden of establishing that, if he or she were to receive the collateral relief sought, the collateral relief would “materially affect[] the outcome of [the] respondent’s removal proceedings.” Because there would be no good cause to grant a continuance for pursuing collateral relief if the collateral relief, if granted, would not make a difference in the outcome of the proceedings, the Attorney General held that this analysis, along with the likelihood that collateral relief would be granted at all, were “the primary consideration.”

The Attorney General stated that his articulation of the two primary factors are consistent with the Hashmi line of decisions. Matter of Hashmi, 24 I&N Dec. at 786, and Matter of Rajah, 25 I&N Dec. at 128, 138, both considered situations in which respondents were seeking collateral relief that , if granted, would have allowed them to apply for adjustment of status in immigration court and avoid removal. The Attorney General explained that “[t]hree of the five main good-cause factors enumerated in Hashmi and Rajah pertained to the likelihood of these efforts’ success: ‘whether the underlying visa petition is prima facie approvable’; ‘the respondent’s statutory eligibility for adjustment of status’; and ‘whether the respondent’s application for adjustment merits a favorable exercise of discretion.’” Hashmi, 24 I&N Dec. at 790; Rajah, 25 I&N Dec. at 130. It is for this reason that the Board in Matter of Hashmi, 24 I&N Dec. at 790 (and in Rajah, 25 I&N Dec. at 130, 136) held that “the focus of the inquiry is the apparent ultimate likelihood of success on the adjustment application.”

The Attorney General emphasized that the Board “has also long held that continuances should not be granted when a respondent’s collateral pursuits are merely speculative.” In Matter of M-, 5 I&N Dec. 622, 624 (BIA 1954) [see article], the Board affirmed the denial of a continuance sought by the respondent to pursue adjustment of status. In so doing, the Board wrote that “[t]o hold that an alien by filing such an application, no matter how frivolous or unfounded his claim to relief may be, may automatically stay a deportation proceeding already pending would be to read into the law a provision which does not exist.” In Matter of Kotte, 16 I&N Dec. 449, 452 (BIA 1978) [PDF version], the Board similarly upheld a denial of a motion for continuance where the respondent was statutorily ineligible for adjustment of status.

The Attorney General added that the Board has applied similar principles in cases where respondents sought continuances for other ultimately frivolous reasons. In Matter of P-, 4 I&N Dec. 684, 687 (BIA 1952) [see section], the Board affirmed the denial of a continuance which would have allowed the respondent to secure additional evidence because it “fail[ed] to perceive how such evidence could possibly assist the respondent in establishing that he is not amenable to deportation.” In Matter of Sibrun, 18 I&N Dec. 354, 356 (BIA 1983) [PDF version] [see section], the Board held that in order to be have a motion for continuance to procure additional evidence granted, the alien has the burden of showing that the evidence sought “is probative, noncumulative, and significantly favorable.”

The Attorney General explained that the case-law and the language of the statutes and regulations “forecloses the argument that any filing of a collateral petition that could conceivably provide relief from removal supplies good cause for a continuance.” Instead, he held that “[t]he probability that a respondent’s collateral proceeding will succeed and materially affect the outcome of the respondent’s removal proceedings should therefore be the most important consideration in the good-cause analysis.” (Emphasis added.)

Other Factors to Consider: 27 I&N Dec. at 415

The Attorney General stated that “[i]t is impossible to identify every factor that might bear on whether section 1003.29’s good-cause standard is satisfied.” However, the Attorney General singled out several pertinent factors that have played a significant role in the Matter of Hashmi line of cases and in the instant cases. We will examine these factors below.

Respondent’s Diligence: 27 I&N Dec. at 415-16

The Attorney General began by explaining that the respondent bears the burden of establishing good cause for a continuance.

If a continuance is granted, the immigration judge must schedule a new hearing date. The Attorney General stated that this “adds yet another hearing to an already overtaxed system.” Because of the burden that such a delay imposes on others, “the respondent seeking to avoid a disposition must demonstrate that he has a well-founded justification for such relief.”

The Attorney General held that a continuance should not be granted “where the respondent appears to be seeking interim relief as a way of delaying the ultimate disposition of the case.” For this reason, the Attorney General held that “it is reasonable to require the respondent to have “exercise[d] due diligence” in pursuing collateral relief in advance of the noticed hearing date,” citing to the decision of the United States Court of Appeals for the First Circuit in Mazariegos-Paiz v. Holder, 734 F.3d 57, 66 (1st Cir. 2013) [PDF version]. In considering continuances to procure more evidence for use in removal proceedings, the Board wrote in Sibrun, 18 I&N Dec. at 356, that a motion for continuance “based upon an asserted lack of preparation and a request for opportunity to obtain and present additional evidence” must be supported by a “showing that the lack of preparation occurred despite a diligent good faith effort to be ready to proceed.”

In applying these principles, the Attorney General directed that a continuance should not be granted in cases where the respondent merely expresses the intention to file for collateral relief on some future date. Furthermore, an immigration judge should not grant a continuance “where the respondent appears to have unreasonably delayed filing for collateral relief until shortly before the noticed hearing.”

Position of DHS: 27 I&N Dec. at 416

The Attorney General stated that “DHS’s views on a motion for continuance will often assist the immigration judge’s good-cause analysis.” Hashmi, 24 I&N Dec. at 791. However, the Attorney General added that whether the dhs opposes or consents to the continuance the DHS’s position on a motion for continuance is not “controlling.” Regardless of the DHS’s position, “[8 C.F.R.] 1003.29 imposes a good-cause requirement that must be satisfied for each and every continuance requested.” There is no exception for cases where the motion for continuance is either unopposed or filed with the consent of DHS. The Attorney General cautioned immigration judges against shifting the burden to DHS to demonstrate the absence of good cause for granting a motion for continuance.

In short, the DHS’s position should inform the immigration judge’s analysis, but it is not dispositive to whether the motion for continuance should be granted. The respondent bears the burden in the first instance of establishing good cause when he or she files a motion for continuance, regardless of whether the DHS consents to the motion, opposes the motion, or expresses no position on the motion.

Administrative Efficiency Concerns: 27 I&N Dec. at 416-17

Attorney General Sessions held that immigration judges should take administrative efficiency into consideration when adjudicating motions for continuances. He stated that “continuances themselves [are] intended to promote efficient case management.”

The Attorney General cited favorably to a 2017 Executive Office for Immigration Review (EOIR) on the proper procedures for granting continuances for its guidance on how to weigh administrative efficiency in adjudicating motions [PDF version OPPM 17-01 (Jul. 31, 2017)]. We discuss the OPPM in detail in a full article [see article].

The Attorney General held that the Board in Matter of Hashmi, 24 I&N Dec. at 793-94, had “overread [the Third Circuit decision in Hashmi” when it wrote that “[c]ompliance with an Immigration Judge’s case completion goals … is not a proper factor in deciding a continuance request…” While the Attorney General agreed with the Third Circuit that case completion goals cannot be the sole reason for denying a motion for continuance, he disagreed with the Board in Matter of Hashmi and Matter of Rajah (same) that immigration judges cannot consider and cite to case completion goals at all. Thus, immigration judges may consider the number of continuances granted in a case and/or the impact that another continuance would have on the efficient determination of the case, “along with other case-specific factors.” For these reasons, the Attorney General abrogated Matter of Hashmi and Matter of Rajah to the extent which both decisions held that immigration judges may not rely upon or cite to case completion goals in adjudicating a motion for continuance.

Weighing Various Factors: 27 I&N Dec. at 417-19

Because immigration judges must balance various factors that weigh in favor of granting or denying a motion for continuance, “a respondent’s strength on certain factors may compensate for a weaker factor.” Furthermore, if an alien establishes that he or she has a strong chance of obtaining collateral relief and subsequently successfully adjusting status, the respondent may be granted a continuance even if he or she had been granted previous continuances. Here, the Attorney General cited to Merchant v. U.S. Att’y Gen., 461 F.3d 1375, 1378 (11th Cir. 2006) [PDF version] [see article], where the United States Court of Appeals for the Eleventh Circuit vacated the denial of a continuance for an alien who had successfully completed all prerequisites to adjusting status with an employment-based visa.

Likelihood of Success in Collateral Matter

However, if the respondent fails to show that he or she is likely to succeed on a collateral matter, “a truly weak showing on that front may be dispositive,” notwithstanding any other positive factors that would weigh in the respondent’s favor. The Attorney General listed several examples of cases where the respondent’s likelihood of procuring collateral relief would likely be too meritless or speculative to establish good cause for a motion for continuance.

First, the Attorney General held that an alien seeking a continuance to apply for a provisional unlawful presence waiver with the USCIS would likely be unable to establish good cause. This is because an alien is ineligible for a provisional unlawful presence waiver while removal proceedings are pending, per 8 C.F.R. 217.7(e)(4)(iii).

Second, the Attorney General cited to several court decisions in stating that a continuance should generally not be granted to accommodate an alien’s pending attack on a criminal conviction. In Palma-Martinez v. Lynch, 785 F.3d 1147, 1150 (7th Cir. 2015) [PDF version], the United States Court of Appeals for the Seventh Circuit held that such a collateral attack is too “tentative” and “speculative” to support a motion for continuance. In Jimenez-Guzman v. Holder, 642 F.3d 1294, 1297 (10th Cir. 2011) [PDF version], the United States Court of Appeals for the Tenth Circuit held that denying a continuance on this basis is “eminently rational” because the finality of a conviction for immigration purposes is not negated “unless and until the conviction is overturned.”

Third, the Attorney General held that an immigration judge should deny a motion for continuance to pursue collateral relief where the respondent’s prior bid for collateral relief was denied and there are no “relevant changed circumstances.” For example, in Morgan v. Gonzales, 445 F.3d 549, 552 (2d Cir. 2006) [PDF version], the United States Court of Appeals for the Second Circuit held that the immigration judge did not err in denying a motion for continuance to allow the respondent to pursue adjudication of a second Form I-130 based on a marriage that the USCIS had already determined to lack bona fides.

Weighing Materiality of Collateral Relief Sought

Next, the Attorney General addressed weighing whether the collateral relief sought by an alien would materially affect the outcome of proceedings if granted. He stated that “it will sometimes be impossible or too uncertain that the collateral relief will affect the disposition of the removal proceedings.”

For example, an immigration judge may properly deny a motion for continuance for a respondent to pursue an application for an immigrant visa if the respondent would be statutorily ineligible for adjustment of status even if the petition were to be granted. Furthermore, an immigration judge could deny a motion when the immigration judge determines that he or she would deny the adjustment of status application in his or her discretion even if the respondent’s petition were to be approved. Furthermore, since an alien may only adjust status when an immigrant visa is immediately available [see article], the immigration judge could deny a motion for continuance if the respondent’s priority date is too far in the future to render his or her future adjustment of status anything more than speculative. In Matter of Quintero, 18 I&N Dec. 348 (BIA 1982) [PDF version] [see article], the Board declined to delay deportation proceedings on the basis of the respondent’s approved immigrant visa petition pending the availability of a visa number.

To establish that the effect of the collateral relief on the disposition of proceedings is not merely speculative, the respondent, who bears the burden of establishing good cause, will generally need to make an evidentiary submission on the matter to the immigration judge. The evidentiary submission “should include copies of the relevant submissions in the collateral proceeding, supporting affidavits, and the like.” The Attorney General noted that this rule is consistent with the Matter of Hashmi line of cases. Without submitting this supplementary evidence, “the respondent generally will not carry his burden of showing that a collateral matter is actually likely to bear on the outcome of the removal proceedings.” The Attorney General concluded this section by stating that “[i]f the respondent is going to establish good cause for a continuance, and impose upon the system the resulting burdens of such a delay, it is hardly too much to ask to have him substantiate that good cause would require such a result.”

Immigration Judges Should Record Reasons for Granting Continuances

Finally, the Attorney General held that immigration judges should state the reasons for granting a continuance on the record or in a written decision. While these reasons are not binding on the Board, they may “aid the Board’s review of a continuance order.” Significantly, the Attorney General added that if the Board entertains an interlocutory appeal of a continuance where the immigration judge provided no reasons for granting the continuance in writing or in the record, the Board may have “no choice but to vacate the order granting the continuance if evidence supporting good cause is not clear from the record.”

Disposition of the Three Cases Referred to the Attorney General: 27 I&N Dec. at 419

In accordance with his decision, the Attorney General vacated the Board’s decisions in the three cases which he had referred to himself, and he remanded them to the Board for further proceedings consistent with his decision in the instant case.

Conclusion

The Attorney General’s decision in Matter of L-A-B-R-, et al., is significant in the context of continuances to pursue collateral relief. While Attorney General Sessions did narrow the types of cases where continuances can be granted, some points remain unchanged from prior rules. For example, the analysis of whether good cause for a continuance has been shown still consists of weighing several factors, including those set forth in the Matter of Hashmi line of cases. However, the Attorney General introduced meaningful changes as well. Namely, the main considerations in granting or denying a motion for continuance are now (1) the respondent’s likelihood for obtaining collateral relief; and (2) the likelihood that the collateral relief would materially affect the outcome of removal proceedings. The Attorney General also allowed immigration judges to consider case-completion goals and instructed them to weigh whether the respondent has been diligent in pursuing collateral relief. Finally, the Attorney General instructed immigration judges to consider the DHS’s position on a motion for continuance and to make a record of the reasons for granting or denying the continuance.

While the Attorney General’s decision is not favorable to aliens in removal proceedings, it is not nearly as sweeping as the scope of his referral suggested it could have been. In general, the decision raises the bar for establishing “good cause” for a continuance to pursue collateral relief by prioritizing the foreseeable effect of the granting of that relief on removal proceedings. Under the new rules, because the burden of proving good cause has been placed squarely on the alien, it is more important than ever for aliens in removal proceedings to procure the counsel of an experienced immigration attorney. An attorney will be able to assess the alien’s overall situation, determine which avenues to pursue for contesting the removal charges or pursuing relief or protection, and assist the alien in pursuing whichever options may be appropriate. Furthermore, an experienced attorney will be on top of the latest developments in the complicated rules of immigration procedure.

Please see our full index on continuances to learn more about that subject [see index]. We discuss removal and deportation defense generally in a growing section on site [see category].