Introduction: Matter of M-, 5 I&N Dec. 622 (BIA 1954)

On January 14, 1954, the Board of Immigration Appeals (BIA) published a precedent decision in the Matter of M-, 5 I&N Dec. 622 (BIA 1954) [PDF version]. In Matter of M-, the Board declined to adjourn deportation proceedings for the purpose of allowing the alien to pursue an application for adjustment of status.

On August 16, 2018, Attorney General Jeff Sessions cited to Matter of M- favorably in his important precedent decision on when an alien respondent may be granted a continuance to pursue collateral relief, Matter of L-A-B-R-, et al., 27 I&N Dec. 405, 414 (A.G. 2018) [PDF version].

In this article, we will discuss the factual and procedural history of Matter of M-, the Board’s analysis and conclusions, and how the decision remains relevant today through its reference in Matter of L-A-B-R- and other important precedent decisions.

To learn more about continuances generally, please see our growing article index on Matter of L-A-B-R- and other relevant issues [see index].

Factual and Procedural History: 5 I&N Dec. at 622-23

The respondent, a native and citizen of the Philippines, had last entered the United States on November 27, 1952, under a former provision of the Immigration Act of 1924 for alien seamen. He was admitted for a period not exceeding 29 days. However, he never departed the United States after his admission, and he subsequently engaged in unauthorized employment. The respondent was charged with deportability for having overstayed his 29-day period of admission.

On April 29, 1953, the respondent filed for adjustment of status based on his marriage to a U.S. citizen. On May 1, 1953, the respondent was issued a letter advising him to appear for a hearing on his adjustment of status application on May 11, 1953. However, in the interim, the respondent’s hearing on his deportability charges occurred on May 4. At that hearing, the respondent’s counsel objected to continuing with deportation proceedings while his client’s adjustment of status application was pending. The special inquiry officer conducing the hearing overruled the objection and proceeded to find that the respondent was deportable as charged. (Note: Today, removal proceedings are conducted by immigration judges instead of special inquiry officers.)

Arguments, Analysis, and Conclusions: 5 I&N Dec. at 623-24

The respondent’s counsel made two arguments on appeal.

The respondent’s first argument was based on the statutory scheme underlying adjustment of status at the time Matter of M- was adjudicated. Under the laws in effect at the time, applying for adjustment of status terminated his nonimmigrant status and, as a result, he could no longer be found deportable as a nonimmigrant for not complying with the terms and conditions of his status. The Board rejected this argument for a variety of reasons. Because none of the decisions that subsequently cited to Matter of M- reference any points relating to this argument and because it is applicable to a statutory scheme that has changed a great deal since 1954, we will not address it further in this article. However, those who are interested may read these sections on pages 623 and 624 of the decision.

We will focus instead on the respondent’s second claim. In short, the respondent argued that he was entitled to a hearing on his adjustment of status application. Accordingly, the respondent argued that his deportation hearing should have been postponed until the former Immigration and Naturalization Service (INS) disposed of the adjustment application.

The Board held that it “f[ound] no provision of law or regulation that gives an alien an absolute right to an adjournment of a deportation hearing in order to have his application for adjustment of status disposed of.” It noted that adjustment applications were considered by immigration officers over whom the Board had no jurisdiction. (Although the structure of the immigration agency’s is significantly different today than it was in 1954, this point remains salient. The immigration judges and the Board have no jurisdiction over applications for adjustment of status filed with the Department of Homeland Security (DHS)).

In perhaps the most significant passage of the decision, the Board stated: “To hold that an alien by filing such an [adjustment of status] application, no matter how frivolous or unfounded his claim to relief may be, may automatically stay a deportation proceeding already pending would read into the law a provision that does not exist.” Here, the Board rejected the idea that the mere act of applying for adjustment of status necessitates a delay in deportation proceedings. However, the Board added that the special inquiry officer conducting deportation proceedings “may at the commencement of the hearing, grant a reasonable adjournment for good cause shown.” Thus, a hearing can be delayed based on a pending adjustment of status application if the alien satisfies his or her burden of establishing good cause for the delay.

In the instant case, the Board concluded that the special inquiry officer was justified in continuing with the removal proceedings, notwithstanding the respondent’s objections based on his pending adjustment of status application, in light of the facts in the record. For this reason, the Board dismissed the respondent’s appeal.

Subsequent Citations in Matter of L-A-B-R- and Other Cases

Attorney General Jeff Sessions cited to Matter of M- in Matter of L-A-B-R-, et al., 27 I&N Dec. 405, 414 (A.G. 2018) [see article]. We discuss this section of Matter of L-A-B-R- in our full article [see section]. Specifically, the Attorney General cited to Matter of M- to the effect that it held that there is no provision of the immigration laws that requires removal proceedings to be automatically stayed on account of an adjustment of status application. The Attorney General also focused on the point that certain applications for adjustment may be frivolous or otherwise not supported by the evidence in support of his holding that continuances may only be granted for purpose of allowing an alien to pursue collateral relief when “good cause” is shown.

Matter of M- was also cited in two other BIA precedent decisions. Matter of Kotte, 16 I&N Dec. 449, 452 (BIA 1978) [PDF version], cited to the decision when holding, “We find no provision of law or regulation that gives an alien an absolute right to an adjournment of a deportation hearing in order to have his application for adjustment of status disposed of.” The Board also cited to Matter of Ficalora, 11 I&N Dec. 592 (BIA 1966) [PDF version], for the same proposition. In Matter of L-A-B-R-, et al, 27 I&N Dec. at 414, the Attorney General noted that the respondent in Matter of Kotte was statutorily ineligible for adjustment of status. In Matter of H-A-, 22 I&N Dec. 728, 741-42 (BIA 1999) [PDF version], the Board cited to Matter of M- through a reference to that same passage in Matter of Kotte.

Conclusion

Although dated, Matter of M- stated in a clear and still-relevant way that merely seeking collateral relief from removal does not in and of itself entitle an alien to a delay in proceedings, unless such a delay is specifically provided for in the statutes or the implementing regulations. However, an alien may show that he or she merits a continuance of proceedings if he or she shows good cause. The Attorney General established new rules for evaluating whether good cause has been established in support of a continuance for seeking collateral relief from removal in Matter of L-A-B-R-.

An alien facing removal proceedings should consult with an experienced immigration attorney immediately. An experienced attorney will be able to evaluate the case and determine whether any avenues exist for contesting the removal charges and/or for seeking relief or protection from removal. If an alien may have a path toward some form of collateral relief from removal, an experienced attorney may assist the alien in pursuing such relief through the proper legal processes.

Please see our full sections on site to learn more about adjustment of status [see category] and removal and deportation defense [see category].