Introduction: Matter of Kotte, 16 I&N Dec. 449 (BIA 1978)

On February 10, 1978, the Board of Immigration Appeals (BIA) published a precedential decision in Matter of Kotte, 16 I&N Dec. 449 (BIA 1978) [PDF version]. In Matter of Kotte, the Board concluded that immigration judges are not required to grant a continuance of deportation proceedings pending consideration of an immigrant visa petition filed prior to said proceedings.

Matter of Kotte was cited to favorably in Attorney General Jeff Sessions’ important immigration precedent decision in Matter of L-A-B-R-, et al., 27 I&N Dec. 405 (A.G. 2018). In Matter of L-A-B-R-, the Attorney General crafted rules for what constitutes “good cause” in the context of seeking a continuance for the purpose of procuring collateral relief from removal.

In this article, we will examine Matter of Kotte in detail and study citing references to the decision in both Matter of L-A-B-R- and the decision of the United States Court of Appeals for the Eleventh Circuit in Merchant v. U.S. Atty. Gen., 461 F.3d 1375 (11th Cir. 2006).

To learn more about Matter of L-A-B-R-, Merchant, and continuances generally, please see our full article index on the subject [see index]. To read about more immigration precedent decisions, please see our growing index of articles on the subject [see index].

Before continuing, please note that Matter of Kotte, like many older decisions, relies upon some statutes and regulations that have since changed over the years. Thus, when reading these decisions, it is important to focus on the general principle while noting that many specific rules and procedures are different today than they were in 1978.

Factual and Procedural History: 16 I&N Dec. at 449-50

The respondent, a native and citizen of India, entered the United States on January 3, 1975, as a nonimmigrant student. He was authorized to stay in the United States until January 2, 1976. He received an extension of stay until January 2, 1977. However, on January 31, 1977, the respondent was issued an Order to Show Cause (former form which initiated deportation proceedings) which alleged that he had been engaged in unauthorized employment since October 25, 1976. Thus, the Order to Show Cause charged the respondent as deportable under former section 241(a)(9) of the Immigration and Nationality Act (INA) for having failed to comply with the conditions of his nonimmigrant status.

At his deportation hearing, the respondent admitted the factual allegations in the Order to Show Cause and conceded that he was deportable as charged. Thus, the question of his deportability was not at issue on appeal.

After conceding deportability on March 8, 1977, the respondent applied for adjustment of status under section 245 of the INA. He then asked the immigration judge to continue his deportation hearing and defer rendering a decision on his adjustment of status application until after the District Director adjudicated an immigrant visa application. This application was based on his having petitioned the District Director for classification in the employment-based third preference category on December 30, 1976. He also applied to the District Director for adjustment on the same day. On April 5, 1977, the respondent asked the district director to consider his petition for classification and his adjustment of status application simultaneously in light of a change in the law.

The immigration judge denied the respondent’s motion for continuance but granted the respondent voluntary departure. The respondent appealed from the decision to the BIA.

Board’s Analysis and Conclusions: 16 I&N Dec. at 451-52

The respondent argued that, as a result of the adjustment provisions in effect at the time, immigration judges were required to continue proceedings if he or she becomes aware that the respondent has a pending immigrant visa preference petition filed simultaneously with an adjustment of status application.

The Board, however, was unpersuaded by the respondent’s argument. Citing to its prior precedent decisions in Matter of Ficalora, 11 I&N Dec. 592 (BIA 1966) [PDF version], and Matter of M-, 5 I&N Dec. 622 (BIA 1954) [see article], the Board stated: “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.”

First, the Board explained that the respondent would only be eligible for adjustment if he was “the beneficiary of a valid unexpired visa petition … and approved to accord him such [immigrant] status.” It held that the decision on whether an immigrant visa petition should be approved was within the discretion of former INS. Thus, immigration judges lacked authority over the question.

In the instant case, the respondent did not have an approved immigrant visa petition in the third preference category. Accordingly, the Board held that he was “statutorily ineligible for adjustment of status under section 245 of the [INA].” It held that the respondent could only obtain the benefit he sought from the INS District Director. However, the Board rejected his argument that the immigration judge was required to continue proceedings pending the District Director’s decision. Instead, the Board explained that, under the rules in effect at the time (see next section for more information), the respondent could file a motion to reopen if future events regarding his petition made such motion appropriate. Here, the Board cited to its then-recent precedent from Matter of Ching, 15 I&N Dec. 772 (BIA 1976) [PDF version].

Citing References

Here, we will examine the two most significant citations to Matter of Kotte.

First, Attorney General Sessions cited to Matter of Kotte favorably in Matter of L-A-B-R-, et al., 27 I&N Dec. 405 (A.G. 2018) [PDF version] [see article]. In Matter of L-A-B-R-, the Attorney General set forth rules for when a motion for continuance can be granted for an alien to pursue collateral relief from removal. The Attorney General held that a continuance for this purpose “should not be granted when a respondent’s collateral pursuits are merely speculative.” Id. at 414 [see section]. Here, he cited favorably to Matter of Kotte for affirming the denial of a continuance where the alien was statutorily ineligible for adjustment of status. In the context of Matter of L-A-B-R-, Matter of Kotte was one of a number of decisions supporting the proposition that the alien’s prospects for collateral relief must be more than speculative.

However, the United States Court of Appeals for the Eleventh Circuit in 2006 added a note of caution regarding Matter of Kotte in its own published decision, Merchant v. U.S. Atty. Gen., 461 F.3d 1375 (11th Cir. 2006) [PDF version] [see article]. In Merchant, the Eleventh Circuit vacated the Board’s decision affirming the denial of a motion for continuance to an alien beneficiary of a pending employment-based immigrant visa petition and a concurrently filed adjustment of status application. The Eleventh Circuit reasoned that the alien respondent had met the statutory prerequisites for adjustment under section 245(i) of the INA and had thus established good cause for the continuance in light of that and other case-specific facts. The Government relied upon Matter of Kotte, Matter of Ficalora, and Matter of Chin to support its argument that the Board’s decision should have been affirmed. However, the Eleventh stated that these decisions were “of doubtful relevance” for the following three reasons: (1) They all predated section 245(i), which was codified in 1994; (2) Each decision relied in part on the availability of a motion to reopen or reconsider to account for future developments, which is a remedy no longer available; and (3) The DHS now permits simultaneous filing of the Form I-140 and Form I-485 for certain employment-based beneficiaries. 461 F.3d at 1379 & n.5. However, it is worth noting that Matter of L-A-B-R- also cited favorably to Merchant, suggesting that the general rules from both Matter of Kotte and Merchant remain in favor, even if specific statutes and regulations have changed over time.

Conclusion

Matter of Kotte remains a somewhat influential decision in the context of continuances despite the fact that many of the statutes and regulations it addressed have changed over the years. In short, the general principle is that an immigration judge is not required to grant a continuance in order to allow an alien to pursue collateral relief that is merely speculative. As Matter of L-A-B-R- clarified, the respondent has the burden of showing that the collateral relief being pursued is concrete and has a realistic probability of providing relief from removal.

An alien facing removal proceedings should always consult with an experienced immigration attorney immediately. An experienced attorney will be able to assess each individual case and determine which avenues of relief may be available for a respondent, including collateral forms of relief outside of the removal proceedings.

To learn more about some of the issues touched upon in this article, please see our website’s full sections on removal and deportation defense [see category], U.S. immigration appeals [see category], adjustment of status [see category], and student visas [see category].