Introduction

On July 31, 2017, Chief Immigration Judge MaryBeth Keller released a memorandum titled “Operating Policies and Procedures Memorandum 17-01: Continuances” [PDF version]. The Operating Policies and Procedures Memorandum (OPPM) supplements a March 7, 2013 OPPM on continuances and administrative closure [PDF version].

In this article, we will examine the new OPPM 17-01 and its effects going forward.

Purpose of OPPM 17-01

The stated purpose of OPPM “is to provide guidance on the fair and efficient handling of motions for continuance…” Specifically, the OPPM is concerned with increasing backlogs in immigration courts. The Chief Immigration Judge noted that there are currently more than 600,000 cases pending before immigration courts. Although there are many reasons for the backlog, she noted that it is important for immigration judges to expunge inefficiencies that may contribute.

Judge Keller explained that delays stemming from the “granting [of] multiple and lengthy continuances” exacerbate the already serious backlogs in immigration courts. To this effect, she cited to a 2012 report by the Inspector General for the U.S. Department of Justice, which found that the granting of “frequent and lengthy continuances” played a significant role in increased case processing times for immigration courts [PDF version]. She also cited to a June 2017 Government Accountability Office (GAO) report which we discussed on site [see article].

Because of these problems, Judge Keller wrote in OPPM 17-01 that “it is critically important that Immigration Judges use continuances appropriately and only where warranted for good cause or by authority established by case law.”

Judge Keller made clear that the OPPM 17-01 is not intended to limit the discretion of immigration judges or to mandate the outcome of any case. Rather, it is to provide new guidance on adjudicating requests for continuance.

Overview of Continuances

Judge Keller noted that the Immigration and Nationality Act (INA) does not establish a right to continuance in immigration proceedings. Instead, continuances are discussed in the regulations at 8 C.F.R. 1003.29. The regulation gives immigration judges discretion to grant a motion for continuance when “good cause” is shown. She added that case law has expanded on the regulation to apply the “good cause” definition to specific contexts. The following factors are generally considered in determining whether to grant a motion for continuance:

The reason and support for the request;
Any opposition to the request;
The timing of the request;
The respondent’s detention status;
The complexity of the case;
The number and length of any prior continuances; and
Concerns for administrative efficiency.

Please note that the above list is non-exhaustive.

Consideration of Administrative Efficiency

Judge Keller made clear that administrative efficiency cannot be the only factor considered in determining whether to grant a motion for continuance (see the list in the previous section). However, she stated that it is “sound docket management” for immigration judges to carefully consider “administrative efficiency, case delays, and the effects of multiple continuances” in addition to other case-specific factors in determining whether to grant a motion for continuance. Judge Keller noted that these concerns are especially important in situations where the respondent is detained. Immigration judges should be cognizant of both the length of continuances and the number of continuances granted. In light of these concerns, Judge Keller made clear that immigration judges “should not routinely or automatically grant continuances absent a showing of good cause or a clear case law basis.”

Judge Keller noted other pertinent concerns regarding continuances. While recognizing that “the appropriate use of continuances serves to protect due process,” she cautioned that there is a “strong incentive” for respondents to endeavor to take advantage of continuances in immigration proceedings. To this effect, she cited to the Supreme Court decision in INS v. Rios-Pineda, 471 U.S. 444, 450 (1985) [see article], wherein she noted that an alien has an incentive to prolong immigration litigation in order to remain in the United States. Judge Keller stated that continuance requests that are made solely to prolong proceedings should not be favorably considered by immigration judges.

Guidance on Specific Types of Continuance Requests

Judge Keller provided guidance, in light of the principles articulated in OPPM 17-01, on several types of continuance requests:

A. Continuances to Obtain Counsel

As a general matter, Judge Keller stated that continuance should be granted in order for a respondent in immigration proceedings to obtain legal counsel.

Judge Keller noted that a continuance granted in order to obtain legal counsel should be of a “reasonable length.” However, what constitutes a “reasonable length” may vary in consideration of the overall context of the case. She noted that this is particularly important when all of the respondents have initially been provided with a list of pro bono legal service providers in accordance with 8 C.F.R. 1240.10(a)(2).

In considering additional continuances in order for a respondent to obtain legal counsel, the immigration judge should determine what efforts the respondent had made to obtain legal counsel under the terms of the previous continuance(s), in addition to all other relevant information.

B. Continuances for Attorney Preparation

Judge Keller noted that continuances to allow a recently retained legal counsel to become familiar with the facts of the case are common. However, she stated that subsequent requests for continuances for this purpose “should be reviewed carefully.” In making this determination, judges should consider the overall complexity of the case in addition to the number and length of prior continuances.

Judge Keller instructed that frequent or multiple requests for additional continuances for attorney preparation warrant scrutiny. Under 8 C.F.R. 1003.102(q)(1), practitioners are required to control and manage their workloads in order that they can handle each individual manner competently. Accordingly, in rare cases where it appears that a practitioner is taking on more cases than he or she can “responsibly and professionally handle,” immigration judges should consider referral to the Executive Office of Immigration Review (EOIR) disciplinary counsel for investigation and possible sanction under 8 C.F.R. 1003.102.

C. Continuances of Merits Hearings

Judge Keller found requests to continue an individual merits hearing that has already been scheduled of “particular importance” in OPPM 17-01.

She noted that because merits hearings are generally scheduled “far in advance,” this should have provided adequate preparation time in most cases. She observed that in the event that a continuance is granted, “slots for individual merits hearings cannot be easily filled by other cases…”

Judge Keller acknowledged that there are cases in which continuations of individual merits hearings are “unavoidable…” However, she added that even in such cases, these continuances have “a significant adverse ripple effect on the ability to schedule other hearings across an Immigration Judge’s docket.” For this reason, requests for continuations of individual merits hears “should be reviewed very carefully,” with added scrutiny if the request is made close in time to the scheduled date of the hearing (which makes it difficult to fill the slot with another case).

If the request for continuance of an already-scheduled merits hearing is made well in advance of the scheduled date, OPPM 17-01 advises immigration judges to adjudicate the request expeditiously, and, if the request is granted, move to fill the vacant hearing slot after providing sufficient notice.

Judge Keller noted that individual merits hearings are scheduled only after considering the availability of the respondent’s representative. For this reason, any request for continuance based on the unavailability of the respondent’s representative should only rarely be granted.

Judge Keller concluded that immigration judges should generally not grant continuances of individual merits hearings “absent a genuine showing of good cause or a clear law basis.”

D. Continuances Requested By DHS

Judge Keller explained that continuance requests made by a DHS trial attorney should be “comparatively rare.” In general, such requests should be granted in order to allow time to complete background investigations and security requests or to obtain a respondent’s file. However, the immigration judge may inquire on the record about the “ongoing process” that the DHS is undertaking for completing these tasks.

Conclusion

OPPM 17-01 provides guidance to immigration judges in weighing continuance requests against the effect of granting continuance requests on the adjudication of the immigration docket. Although the guidance is directed at judges, it is instructive to both immigration attorneys and clients as well.

An individual in immigration proceedings should always seek the counsel of an experienced immigration attorney. An experienced attorney will be able to navigate the complexities of our immigration courts system.

Regarding DHS continuances, please see an interesting article on a 2016 Board of Immigration Appeals decision (BIA) regarding when the DHS may be granted a continuance to properly serve a Notice to Appear on a minor [see article].