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

On March 27, 1992, the Board of Immigration Appeals (BIA) issued a short published decision in Matter of Silva-Rodriguez, 20 I&N Dec. 448 (BIA 1992) [PDF version]. In the decision, the Board sustained an interlocutory appeal by the then-Immigration and Naturalization Service (INS) (now the Department of Homeland Security (DHS)) from a decision by an immigration judge granting a one-year continuance of deportation proceedings in order to give the alien time to establish “genuine rehabilitation” for a waiver of deportation under the former section 212(c) of the Immigration and Nationality Act (INA). Specifically, the Board concluded that the immigration judge had acted without “good cause” in granting the one-year continuance.

In 2018, Attorney General Jeff Sessions mentioned Matter of Silva-Rodriguez favorably in his comprehensive decision discussing what constitutes “good cause” for granting a motion for continuance to allow a respondent in removal proceedings to pursue collateral relief. We discuss that decision, Matter of L-A-B-R- et al., 27 I&N Dec. 405 (A.G. 2018) [PDF version] in a full article on site [see article].

In this article, we will discuss Matter of Silva-Rodriguez and what it means for cases today. To learn more about continuances generally, please see our growing article index on the subject [see index].

Factual and Procedural History in Matter of Silva-Rodriguez: 20 I&N Dec. at 448-49

The respondent was a native and citizen of Mexico. He entered the United States on May 8, 1970, as a lawful permanent resident.

On February 7, 1989, the respondent was convicted of delivery of a controlled substance in Texas. The INS initiated deportation proceedings against the respondent was based on this conviction.

At his first deportation hearing, the respondent conceded that he was deportable. He sought relief from deportation in the form of a waiver under the former section 212(c) of the INA. You may read about former 212(c) relief in our full article on the subject [see article].

At the time the respondent sought former 212(c) relief, he was ineligible. The respondent submitted evidence to support his application for relief under former section 212(c). The immigration judge ordered the removal proceeding continued for one year in order to give the respondent time to establish genuine rehabilitation, which was a factor when seeking 212(c) relief for deportability charges based on a criminal conviction.

INS Appeal to the BIA: 20 I&N Dec. at 449

The INS filed an interlocutory appeal from the immigration judge’s decision to grant a one-year continuance. The INS cited to the Board’s decision in Matter of Garcia-Reyes, 19 I&N Dec. 830 (BIA 1988) [PDF version], wherein the Board sustained a somewhat similar appeal filed by the INS against an immigration judge’s decision to grant, sua sponte (on his own motion) a 6-month continuance to enable a respondent to establish rehabilitation. The respondent sought to distinguish the facts of the instant case from those at play in Matter of Garcia-Reyes.

Board Decides to Consider Interlocutory Appeal: 20 I&N Dec. at 449

To begin, the Board noted that it “does not ordinarily entertain interlocutory appeals.” It cited to its decision in Matter of Guevara, 20 I&N Dec. 238 (BIA 1990) [PDF version], wherein it discussed the situations that had prompted it to consider interlocutory appeals. In Matter of Guevara, the Board explained that it had “on occasion ruled on the merits of interlocutory appeals” for the following reasons:

1. “[T]o address important jurisdictional questions regarding the administration of the immigration laws; or
2. “[T]o correct recurring problems in the handling of cases by immigration judges.

In the instant case, the Board found “that the [INS’s] interlocutory appeal satisfies [these] criteria.

Board’s Analysis and Conclusions Regarding Continuance: 20 I&N Dec. at 449-50

The Board described its holding in Matter of Garcia-Reyes, 19 I&N Dec. at 832 as follows: “[W]e held that an immigration judge should not grant, sua sponte, a 6-month continuance so as to enable an alien to show rehabilitation, where there was no evidence that the alien was eligible for any form of relief for which rehabilitation would be relevant.”

The respondent in the instant case contrasted his situation from that of the respondent in Matter of Garcia-Reyes by noting that he was seeking relief under former section 212(c), for which rehabilitation was indisputably a factor. The degree to which rehabilitation is considered in former 212(c) cases was discussed by the Board in Matter of Edwards, 20 I&N Dec. 191 (BIA 1990) [PDF version]. The Board acknowledged that the respondent’s observation with regard to this particular point was correct. However, notwithstanding this difference, the Board would ultimately conclude that the respondent’s attempt to distinguish his case from Matter of Garcia-Reyes was not persuasive, for reasons that we will discuss below.

In Matter of Garcia-Reyes, 19 I&N Dec. at 832, the Board held that the “6-month continuance granted by the immigration judge appeared to be inconsistent with [former] section 242(i) of the [INA], which provides that deportation proceedings should be initiated as expeditiously as possible after the date of conviction.” The Board held that “the purpose of this statute is circumvented if deportation proceedings, once promptly initiated by the [INS], are unduly delayed by an immigration judge.” The Board reached also reached these conclusions in Matter of Quintero, 18 I&N Dec. 348, 350 (BIA 1982) [PDF version] [see article], and Matter of Yazdani, 17 I&N Dec. 626, 630 (BIA 1981) [PDF version].

The immigration judge in the instant case sought to justify his decision to grant a one-year continuance, in part, by noting that aliens with recent criminal convictions have more difficulty establishing genuine rehabilitation than aliens with criminal convictions in “the more distant past.” The Board acknowledged that this point regarding establishing rehabilitation was correct, citing to its decision in Matter of Marin, 16 I&N Dec. 581, 588 (BIA 1978) [PDF version], receded from by Matter of Edwards, 20 I&N Dec. 191 (BIA 1990). The Board noted, generally, that “[i]n any case involving discretionary relief, the timing of the issuance of an Order to Show Cause by the [INS] can have a significant effect on the circumstances relevant to the exercise of discretion.” Id. at 589. Please note that this same principle applies with regard to the Notice to Appear, which is used to initiate removal proceedings today. However, the Board concluded that “this fact alone does not mandate that proceedings should be delayed so as to afford an alien a better opportunity to prove rehabilitation.” Id.

In a final point, the Board stated that the immigration judge had “in essence, … conditionally granted a section 212(c) waiver in this case.” The Board explained that the immigration judge had stated on the record that he would grant the respondent a section 212(c) waiver if the respondent avoided any further wrongdoing for the next year. The Board stated “that there is no authority for a provisional grant of a waiver of inadmissibility,” citing to Matter of Przygocki, 17 I&N Dec. 361 (BIA 1980) [PDF version]. In Matter of L-A-B-R- et al., 27 I&N Dec. at 411, Attorney General Sessions cited to Matter of Silva-Rodriguez for this particular point in explaining that improper continuances can function as de facto conditional grants of relief [see section].

The Board explained that in order to grant a continuance, a showing of “good cause” was required. The Board stated that it was “sympathetic to the desire of the immigration judge to fashion a fair result in this matter…” However, for the foregoing reasons, it concluded that the immigration judge’s continuance was granted without “good cause.” For this reason, it remanded the record to the immigration judge for further proceedings consistent with its opinion.

Conclusion

Matter of Silva-Rodriguez has been cited in a good number of administrative decisions since its issuance. In general, the Board concluded that the immigration judge did not have good cause to grant a continuance merely to give a respondent the opportunity to satisfy a discretionary requirement for relief from deportation. In essence, this extended the Board’s logic from Matter of Garcia-Reyes, where an immigration judge had granted a continuance for a similar reason but where the respondent would not have been apparently eligible for any form of relief.

The decision gained added significance when Attorney General Sessions referenced it in Matter of L-A-B-R-. The Attorney General used it as an example of a case where a continuance provided a respondent with a proverbial form of conditional relief that did not exist in either the INA or its implementing regulations.

In addition to still having applicability in the limited number of current cases where respondents are eligible for relief under former section 212(c), the general principles underlying Matter of Silva-Rodriguez are still applicable for continuances today. An individual facing removal proceedings should seek the counsel of an experienced immigration attorney immediately for case-specific guidance. You can learn more about removal and deportation defense in our growing selection of articles on site [see category]. To learn more about continuances, please see our article index [see index].