Introduction: Matter of Quintero, 18 I&N Dec. 348 (BIA 1982)

On November 16, 1982, the Board of Immigration Appeals (BIA) published a precedential decision in the Matter of Quintero, 18 I&N Dec. 348 (BIA 1982) [PDF version]. In the decision, the Board held that immigration judges do not have jurisdiction either to grant deferred action or to review the decision of the adjudicating agency to deny deferred action, for deferred action is a matter of prosecutorial discretion. Accordingly, the Board held that an immigration judge did not err in refusing to adjourn deportation proceedings upon the request of an alien in order to allow him to remain in the United States until he was allowed to apply for an immigrant visa on the basis of his approved immigrant visa petition. Finally, the Board held that the authority of immigration judges to grant voluntary departure does not extend to the authority to grant “extended voluntary departure.”

Matter of Quintero has two main focuses. First, it makes clear that immigration judges do not have authority to grant remedies or review declinations to grant remedies which fall within the scope of prosecutorial discretion, which was then exercised by former Immigration and Naturalization Service and is now exercised by the Department of Homeland Security. By extension, it held that immigration judges are not required to adjourn — or continue — proceedings in order to allow an alien to pursue relief in the form of prosecutorial discretion. The decision garnered newfound significance when it was cited by Attorney General Jeff Sessions in his important decision on when good cause is established in support of a continuance to pursue collateral relief from removal, Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018).

In this article, we will examine the Matter of Quintero decision in detail and its contemporary relevance in light of Matter of L-A-B-R-. For information on related issues, please see our article index on continuances, built around the Matter of L-A-B-R- decision [see index].

Factual and Procedural History: 18 I&N Dec. at 348-349

The respondent, a native and citizen of Mexico, had last entered the United States in 1977. He was married to a lawful permanent resident who had filed an approved family-sponsored second preference immigrant visa petition on his behalf.

The respondent had been placed in deportation proceedings after being charged under former section 212(a)(20) of the Immigration and Nationality Act (INA) for having been excludable at entry. The respondent conceded that he was deportable as charged. In proceedings, he asked the immigration judge to adjourn in order to give the former Immigration and Naturalization Service (INS) District Director the opportunity to either act on his request to terminate proceedings or grant him deferred action status based on policies in effect at the time. This request was based on the fact that he was the beneficiary of an approved immigrant visa petition. Specifically, the respondent argued that the District Director should have allowed him to remain in the United States until a visa number became available because his deportation would cause his family hardship. In the alternative, he argued that the immigration judge should grant the requested relief if the District Director declined to do so. The immigration judge was unpersuaded and denied the respondent’s request for adjournment of proceedings.

The immigration judge ultimately granted the respondent voluntary departure. The respondent appealed from the immigration judge’s decision to the BIA, venturing the same arguments and asking the Board to find that the immigration judge erred in not granting his request to adjourn proceedings. For reasons that we discuss in the following section, the Board ultimately dismissed the respondent’s appeal.

Board’s Analysis and Conclusions: 18 I&N Dec. at 349-51

The Board began by discussing the deferred action provisions in effect at the time of the decision.

The Board explained that “deferred action status,” which was found in the INS Operations Instructions at the time, was “an informal administrative stay of deportation which is granted only where the District Director, with the Regional Commissioner’s approval, finds it to be warranted.” It added that “[s]uch permission to remain in this country indefinitely is bestowed as a matter of prosecutorial grace and affords no rights to permanent residence.” The Board further explained that deferred action “appears only in the Operations Instructions.” The administrative remedy was “mentioned nowhere in the statute or the regulations and is simply the result of an administrative policy to give low priority to the enforcement of the immigration laws in certain cases.” For these reasons, the Board concluded that “the prosecutorial discretion exercised in granting deferred action status is committed exclusively to the [INS] enforcement officials.” Thus, “[i]nasmuch as deferred action status is a function of the District Director’s prosecutorial authority, neither the immigration judge nor the Board may grant such status or review a decision of the District Director to deny it.”

Regarding the instant case, the Board held that “since the respondent can request deferred action status at any stage in the proceedings, the immigration judge did not err in refusing to adjourn the hearing to allow him to pursue that relief.” The Board also held that “the immigration judge’s refusal to continue the hearing until a visa number was available was proper because he may neither terminate nor indefinitely adjourn the proceedings in order to delay an alien’s deportation.” The United States Court of Appeals for the Ninth Circuit had earlier reached this same conclusion in Bowes v. District Director of United States Immigration and Naturalization Service, 443 F.2d 20 (9th Cir. 1971) [PDF version]. This is because, as the Board explained, “[o]nce deportation proceedings have been initiated by the District Director, the immigration judge may not review the wisdom of the District Director’s action, but must execute his duty to determine whether the deportation charge is sustained by the requisite evidence in an expeditious matter.” In the case of the respondent, the Board held that the mere fact that he had an approved immigrant visa petition filed on his behalf did “not entitle him to delay the completion of deportation proceedings pending availability of a visa number.” The Board noted that it and several federal courts had previously reached this result, including the Ninth Circuit in Bowes and the United States Court of Appeals for the Seventh Circuit in Manantan v. Immigration and Naturalization Service, 425 F.2d 693 (7th Cir. 1970) [PDF version].

The respondent took the position that the immigration judge had implicit authority to grant “extended voluntary departure” as a result of having the authority to grant voluntary departure generally. The respondent then argued that this authority to grant extended voluntary departure was equivalent to deferred action status. However, the Board distinguished “extended voluntary departure” from the actual voluntary departure provision, noting that “voluntary departure is only granted to aliens who have established that they are willing and have the immediate means to depart promptly from the United States.” The Board agreed with the respondent that there was no regulatory limitation on the duration of voluntary departure, as it had held in Matter of Chouliaris, 16 I&N Dec. 168 (BIA 1977) [PDF version]. However, the Board stated that “it is well established that the immigration judge may not grant voluntary departure for an indefinite period of time.” Instead, the Board held that the discretion to grant extended voluntary departure, like deferred action, lay exclusively with the former INS. The Board had reached this result in several prior decisions, including Matter of Anaya, 14 I&N Dec. 488 (BIA 1973) [PDF version].

Finally, the Board rejected the respondent’s final argument that the immigration judge erred in declining the respondent’s request for a two-year period of voluntary departure, opting instead to grant just over five months. The Board had previously noted in Matter of M-, 4 I&N Dec. 626 (BIA 1952), that the usual time afforded for voluntary departure is 30 days. Thus, in light of the discretion of the immigration judge and the fact that the period of voluntary departure granted in the instant case was significantly longer than was typical, the Board found “that the period of over 5 months granted by the immigration judge was more than adequate.

For these reasons, the Board dismissed the respondent’s appeal.

Citation to Matter of Quintero in Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018)

Matter of Quintero has been cited with some frequency since its publication, although seldom in precedential decisions. However, on August 16, 2018, Attorney General Jeff Sessions cited to the decision in his important precedent decision concerning when an alien may be granted a continuance to pursue collateral relief from removal, Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018) [PDF version] [see article]. In the decision, the Attorney General specifically addressed what constitutes “good cause” for a continuance. In the decision, he stated: “[B]ecause adjustment of status typically requires an immediately available visa … good cause does not exist if the alien’s visa priority date is too remote to raise the prospect of adjustment of status above the speculative level.” Id. at 418 [see section]. Here, he cited to Matter of Quintero’s statement that “the fact that the respondent has an approved visa petition does not entitle him to delay the completion of deportation proceedings pending availability of a visa number.”

In short, an alien’s potential eligibility for adjustment of status could, in certain circumstances, constitute “good cause” for a continuance of removal proceedings. However, if the alien’s priority date [see article] is in the future, the length of time until the alien will actually be eligible for adjustment of status must be taken into consideration. As the Attorney General held, if the date is so far into the future as to not “raise the prospect of adjustment of status above the speculative level,” the alien will not be able to establish good cause for a continuance on that basis. However, no specific direction was given for the period of time that would fall below the “speculative level” threshold, meaning that different immigration judges may differ in interpreting this part of Matter of L-A-B-R-. Since Matter of L-A-B-R- is still a relatively new decision, we will monitor how it is implemented over the coming months and years.

Conclusion

Matter of Quintero remains an influential decision today for its clear explaining of the fact that deferred action and “extended voluntary departure” are matters of prosecutorial discretion, and therefore are not within the scope of authority of immigration judges. It followed past Board precedent in holding that immigration judges may not delay proceedings in order to allow respondents to pursue relief in the form of prosecutorial discretion after such discretion has already been denied. The decision gained additional significance through the Attorney General’s reference to it in Matter of L-A-B-R-, where he noted that a long period of time until an immigrant visa number will be available is a negative factor weighed against finding that there exists good cause to grant a continuance to allow an alien respondent to pursue adjustment of status.

An alien facing removal proceedings should always consult with an experienced immigration attorney immediately. An experienced attorney will be able to assess the alien’s case and determine which types of avenues may be available for contesting the underlying removal charges, seeking relief in the form of prosecutorial discretion or through collateral means, or seeking other forms of relief or protection from removal. We discuss these issues more generally in our website’s growing sections on removal and deportation defense [see category], asylum and refugee protection [see category], and U.S. immigration appeals [see category].