Introduction

In Matter of L-A-B-R-, et al., 27 I&N Dec. 405 (A.G. 2018), Attorney General Jeff Sessions established rules for when a continuance of removal proceedings can be granted to allow a respondent to pursue collateral relief. In short, the Attorney General clarified the rules in this area and generally narrowed the circumstances in which continuances can be granted for purpose of allowing an alien to pursue collateral relief.

In Matter of L-A-B-R-, the Attorney General cited to several past decisions that he found persuasive in crafting the new rules for continuances. In this article, we will examine two of these decisions: Matter of P-, 4 I&N Dec. 684 (BIA 1952) [PDF version], and Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983) [PDF version]. Both decisions addressed when an alien may seek a continuance in order to gather additional evidence. In both cases, the Board explained its reasoning in finding that the respondent did not sustain his burden for being granted a continuance to procure additional evidence. After examining the decisions and their rules, we will look at how they have been relied upon in Matter of L-A-B-R- and other pertinent published decisions subsequent to their issuance.

For related articles, please see our article on Matter of L-A-B-R- [see article] and our index on Matter of L-A-B-R- and continuances generally [see index].

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

Matter of P- involved several issues, but we will generally restrict our discussion of the case to those issues relating to the denial of the respondent’s request for an adjournment of removal proceedings.

The respondent was a 30-year-old native and citizen of Italy. In applying for a non-quota immigrant visa, the respondent stated to the consular officer that he was unmarried, which was material to his eligibility for the visa. 4 I&N Dec. at 684. In so doing, the respondent presented a certificate from Italian authorities, dated May 6, 1946, which stated that he was unmarried. Id. at 685. However, the respondent had actually married in Italy on June 13, 1943, and his marriage had never been terminated. Id. at 485. On August 9, 1949, the respondent admitted to making false statements to the consular officer and said that he had done so because he knew that he would not be granted the visa if he told the truth. Id. However, at his deportation hearing on January 30, 1951, he stated that he had not been asked whether he was married or single and that he had no recollection of the meeting where he had allegedly admitted to having made false statements. Id.

Through counsel, the respondent made procedural and statutory arguments against his deportation, all of which were rejected by the Board.

For the purpose of this article, we will examine the respondent’s counsel’s argument that the hearing officer erred in denying his request for an adjournment of the hearing in order to allow the respondent time to procure additional evidence. Id. at 687. Specifically, the respondent’s counsel wanted “to secure information from the Department of State or from the files of the Immigration and Naturalization Service relating to an application for immigration visa allegedly made by the respondent about 1939 or 1940.” (Description of argument by Board.). Id. The Board stated that, even if the desired evidence was available and could be produced, the Board “fail[ed] to perceive how such evidence could possibly assist the respondent in establishing that he is not amenable to deportation.” For this reason, the Board concluded that the hearing officer did not err in denying the request for adjournment.

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

The respondent in Matter of Sibrun was a 35-year old native and citizen of Haiti who arrived in the United States by boat on August 9, 1981. 18 I&N Dec. at 354. The respondent was determined to be excludable under former section 212(a)(20) for being present in the United States without being in possession of a valid visa. Id. at 355. His removability on this ground was uncontested. Instead, the issue had to do with his application for asylum.

Under a court order in effect at the time, former Immigration and Nationality Service (INS) was unable to proceed with his exclusion hearing until he was represented by counsel. Id. After the respondent’s counsel entered an appearance on the respondent’s behalf, “she was granted 35 days in which to file pre-trial motions and/or an application for asylum.” Id. She did submit an application for asylum on the respondent’s behalf within that window, but the Department of State (DOS) agency responsible for considering claims at the time determined that it did not believe that the respondent had established a well-founded fear of persecution. Id. Accordingly, the INS moved forward with the exclusion hearing.

At the hearing, the immigration judge determined that the respondent was removable as charged. Id. The respondent’s counsel moved for a continuance of proceedings on the basis that she was unprepared to represent her client’s case for asylum. Id. The immigration judge denied the motion. Id. After the denial, the respondent’s counsel advised him to not give testimony regarding his claim for asylum, and she did not examine him or submit evidence in support of his claim. Id. The immigration judge examined the evidence in the record regarding the persecution claim. Id. The Board explained that the only evidence in support of the respondent’s claim was his statement that he feared persecution because he, like “almost everyone else in my country lives under the same oppressive conditions.” Id. Based on the evidence in the record, the immigration judge determined that the respondent had failed to establish a well-founded fear of persecution and denied the application for asylum. Id.

On appeal, the Board reviewed whether the immigration judge erred in denying the motion for continuance.

The Board began by noting an important difference between former exclusion proceedings and deportation proceedings. Under the regulations in effect at the time, a motion for continuance in deportation proceedings could be granted for “good cause.” This same “good cause” requirement exists today for removal proceedings and was the main point at issue in Matter of L-A-B-R-. However, there was no regulatory standard for considering motions for continuances in exclusion proceedings. Id. at 355-56.

Noting the “paucity of any exposition of standards regarding motions to continue” in exclusion proceedings, the Board examined comparable provisions in federal criminal procedure. Id. at 356. We will omit a detailed examination of the Board’s analysis, but note that after examining federal criminal procedure, the Board “emphasized that the full panoply of procedural protections afforded criminal defendants are not constitutionally mandated for aliens in these civil, administrative proceedings.” Id. Instead, “[a]ll that is required here is that the hearing be fundamentally fair.” Id. The question for determining whether a hearing is “fundamentally fair” is whether the respondent was prejudiced by a procedural decision, as the Board also held in Matter of Exilus, 18 I&N Dec. 276 (BIA 1982) [PDF version]. 18 I&N Dec. at 356.

The Board set forth two rules for assessing motions for continuance based on an “asserted lack of preparation and a request for opportunity to obtain and present additional evidence.” Id. The first rule applied to immigration judges and the second to assessing the decision of an immigration judge to deny a continuance sought on this basis.

First, in seeking a motion for continuance on this basis, the alien must at least:

1. Make a reasonable showing that the lack of preparation occurred despite a diligent good faith effort to be ready to proceed; and
2. Show that any additional evidence he or she seeks to present is probative, noncumulative, and significantly favorable to his or her claim. (Paraphrased.) Id.

Thus, a motion for continuance based on lack of preparation time must be supported by evidence that the alien had made a good faith effort to procure the evidence in time for the hearing but was nevertheless unable to do so. Additionally, if the alien establishes the first point, he or she must also show that the evidence would be significantly favorable to his or her claim. Finally, even if the alien meets these minimum thresholds, the decision whether to grant a motion for continuance is within the discretion of the immigration judge.

Second, the Board set forth the standard of review of an immigration judge’s decision to deny a motion for continuance upon consideration of the above two requirements. The Board held that such a denial “will not be reversed unless the alien establishes that [the] denial caused him actual prejudice and harm and materially affected the outcome of his case.” Id. This means that “the alien must specifically articulate the particular facts involved or evidence which he would have presented, and otherwise fully explain how denial of his motion fundamentally changed the result reached.” Id.

In the instant case, the respondent’s counsel on appeal ventured three arguments in support of her position that the immigration judge’s decision to deny her motion for continuance should have been reversed: (1) she had not received “written material” from the bar association until one day before the hearing; (2) she had not received the translation of a letter by the applicant from a translating service; and (3) an employee of the translating service failed to appear at a meeting with the counsel to provide “some pertinent information regarding the hearing as to witnesses and allegations of facts.” (Internal citations omitted.) Id at 357. The Board found these reasons insufficient to support the motion for continuance in light of its standard. First, it noted that the respondent had the “written material” in her possession before the hearing, and she was not precluded from submitting it into the record or explaining to the immigration judge how her late receipt of it negatively affected her ability to present her client’s claims. Id. The Board noted that she did not avail herself to either of these options. Second, the Board held that when she became aware of difficulties with the translating service she could have gone to a different translating service, or had the letter read into the record by the INS translator, and/or advised the respondent to testify about the letter’s contents. She chose to do nothing. Id. Third, the Board held that since the respondent himself was the source of the facts that his attorney wanted to discuss with the translator, he could have testified to the facts at the hearing. His attorney instructed him not to testify. Id. The Board also noted that the counsel had failed to explain how any additional unnamed witnesses would have provided favorable testimony if they had been allowed to testify. Id.

The Board described all of the reasons as “bare, unsupported allegations lacking the required specific articulation of particularized facts and evidence.” Id. Additionally, the Board held that even if the counsel’s claims were adequately supported by the evidence, there would still be “no need to reverse the immigration judge’s denial of the motion.” This is because at the time of the Board’s decision, several months after the hearing, the Board found that the respondent “has yet to substantively identify any evidence which he was precluded from submitting” and did not “proffer[]any explanation of how denial of his motion materially affected the outcome of his asylum application and caused him actual prejudice or harm.” Id. at 358.

Subsequent Reference in Matter of L-A-B-R-

The Attorney General referenced both Matter of P- and Matter of Sibrun in Matter of L-A-B-R-, et al., 27 I&N Dec. at 414, 415 (A.G. 2018). Although the issue in Matter of L-A-B-R- was not identical to the issues in Matter of P- and Matter of Sibrun, the Attorney General found that certain general principles from those decisions were applicable to the question of what an alien must establish in order to merit a favorable decision on a motion of continuance of removal proceedings in order to seek collateral relief.

Regarding Matter of P-, the Attorney General cited to the passage of the decision where the Board stated that it “fail[ed] to perceive how such evidence could possibly assist the respondent in establishing that he was not amenable to deportation.” This passage supported the Attorney General’s conclusion that, when seeking a continuance for collateral matters, the alien must establish both some likelihood of obtaining the relief sought and that the relief would likely materially affect the outcome of the removal proceedings.

The Attorney General cited to multiple passages of Matter of Sibrun. First, he cited approvingly to the Board’s statement that when an alien seeks a continuance to acquire additional evidence, he or she must show that the evidence sought “is probative, noncumulative, and significantly favorable.” Furthermore, the Attorney General also approved of the Board’s conclusion that the alien must show that he or she made a “diligent and good faith effort to be ready to proceed” and only failed to obtain the evidence despite such efforts. Regarding administrative review of the denial of a motion for continuance sought on this basis, the Attorney General again cited favorably to Matter of Sibrun, agreeing that the alien has the burden of establishing that the denial of the motion “materially affected the outcome of his case.”

Conclusion

Matter of P- and Matter of Sibrun both establish rules for seeking continuances in order to procure more evidence. In general, the alien must show that he or she made a good faith effort to acquire the evidence before the hearing and that the evidence is material to the outcome of the proceedings. The alien in removal proceedings will face similar burdens in convincing the Board to remand on the basis that an immigration judge improperly denied a continuance. In Matter of L-A-B-R-, the Attorney General cited favorably to the main points of these decisions in creating new binding rules for immigration judges and the Board on considering continuances for the purpose of seeking collateral relief.

An alien in removal proceedings should consult with an experienced immigration attorney immediately. An experienced attorney will be able to assess the individual case and determine what evidence may be needed to support the alien’s plausible claims. In the event that more time is needed to gather the evidence, an attorney will be able to make the best possible case to the immigration judge and/or the Board.

To learn more about this and similar issues, please see our website’s sections on removal and deportation defense [see category] and immigration appeals [see category]. Please also see our article index on continuances [see index].