In re L-A-B-R, Interim Decision #3933

• Decision Date: 16 August 2018
• Docket Number: Interim Decision #3933
• Parties: Matter of L-A-B-R- et al., Respondents
• Court: U.S. DOJ Board of Immigration Appeals

27 I&N Dec. 405

Matter of L-A-B-R- et al., Respondents

Interim Decision #3933

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

August 16, 2018

(1) An immigration judge may grant a motion for a continuance of removal proceedings only "for good cause shown." 8 C.F.R. § 1003.29.

(2) The good-cause standard is a substantive requirement that limits the discretion of immigration judges and prohibits them from granting continuances for any reason or no reason at all.

(3) The good-cause standard requires consideration and balancing of multiple relevant factors when a respondent alien requests a continuance to pursue collateral relief from another authority—for example, a visa from the Department of Homeland Security. See Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009).

(4) When a respondent requests a continuance to pursue collateral relief, the immigration judge must consider primarily the likelihood that the collateral relief will be granted and will materially affect the outcome of the removal proceedings.

(5) The immigration judge should also consider relevant secondary factors, which may include the respondent's diligence in seeking collateral relief, DHS's position on the motion for continuance, concerns of administrative efficiency, the length of the continuance requested, the number of hearings held and continuances granted previously, and the timing of the continuance motion.

BEFORE THE ATTORNEY GENERAL

The Immigration and Nationality Act ("INA") authorizes immigration judges to conduct proceedings to determine the removability of aliens. INA § 240(a)(1), 8 U.S.C. § 1229a(a)(1). Immigration judges have the authority to "grant a motion for continuance for good cause shown." 8 C.F.R. § 1003.29. Respondents often request continuances because they are pursuing collateral relief in other forums that may affect the outcome of their removal proceedings. For example, an alien may move for a continuance because he is the subject of a family- or employment-based visa petition that, if approved by United States Citizenship and Immigration Services ("USCIS"), would enable him to apply for adjustment of status in the immigration court and become a lawful permanent resident.

Lacking any guidance in the INA's implementing regulations, the Board developed a multifactor balancing test to determine whether good cause exists to support a continuance in light of certain pending collateral proceedings. See Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009). Although the Board's Hashmi framework clarified immigration judges' discretion to issue some continuances, it has not been extended to the consideration of continuances for all types of collateral proceedings. Meanwhile, the number of continuances granted by immigration judges has increased dramatically over the past decade, and the Board has declined to hear numerous interlocutory appeals recently filed by the Department of Homeland Security ("DHS") challenging orders granting continuances.

I took up these cases and invited briefing about the proper application of the good-cause standard to a motion for continuance to accommodate collateral proceedings. 27 I&N Dec. 245 (A.G. 2018). For the reasons set forth below, I hold that an immigration judge should assess whether good cause supports such a continuance by applying a multifactor analysis, which requires that the immigration judge's principal focus be on the likelihood that the collateral relief will be granted and will materially affect the outcome of the removal proceedings.

As I recently explained in Matter of Castro-Tum, continuances are a "legitimate[]" and "appropriate" case-management tool for immigration judges. 27 I&N Dec. 271, 293 (A.G. 2018). Yet the regulation authorizing continuances, 8 C.F.R. § 1003.29, limits their use by imposing a good-cause standard. The good-cause standard is not a mere formality that permits immigration judges to grant continuances for any reason or no reason at all. Rather, the good-cause requirement is an important check on immigration judges' authority that reflects the public interest in expeditious enforcement of the immigration laws, as well as the tendency of unjustified continuances to undermine the proper functioning of our immigration system.

I.

A.

The United States has a "strong interest in the orderly and expeditious management of immigration cases." Alsamhouri v. Gonzales, 484 F.3d 117, 123 (1st Cir. 2007); accord Castro-Tum, 27 I&N Dec. at 289-90. This interest in efficiency pervades the INA, reflecting Congress's intent to streamline the deportation process. Stone v. INS, 514 U.S. 386, 399-400 (1995); see, e.g., INA § 241(a)(1)(A), 8 U.S.C. § 1231(a)(1)(A) (generally requiring execution of removal orders within ninety days). Efficiency is also a common theme in the immigration courts' procedural regulations, which promote the "timely" and "expeditious" resolution of removal proceedings. 8 C.F.R. §§ 1003.10(b), 1003.12. As I recently stated, "[o]nce DHS initiatesproceedings, immigration judges and the Board must proceed 'expeditious[ly]' to resolve the case." Castro-Tum, 27 I&N Dec. at 289.

There are times when the prudent use of continuances may advance the efficient enforcement of the immigration laws. Continuances can serve as an important management tool for adjudicators and "promote efficient case management." United States v. Tanner, 544 F.3d 793, 795 (7th Cir. 2008). When a key participant in a hearing falls ill, for instance, or an impending factual development will alter the course of the case, it can be wasteful and inefficient to plow ahead immediately. But continuances are also "readily susceptible to use as a delaying tactic." Lee v. Kemna, 534 U.S. 362, 366 (2002). Convening additional hearings imposes no small burden on the immigration court—a burden that, as in ordinary litigation, "counsels against continuances except for compelling reasons." Morris v. Slappy, 461 U.S. 1, 11 (1983). And the use of continuances as a dilatory tactic is particularly pernicious in the immigration context. As the Supreme Court has recognized, "[o]ne illegally present in the United States who wishes to remain . . . has a substantial incentive to prolong litigation in order to delay physical deportation for as long as possible." INS v. Rios-Pineda, 471 U.S. 444, 450 (1985).

The regulation governing continuances authorizes an immigration judge to grant a motion for continuance only "for good cause shown." 8 C.F.R. § 1003.29.¹ Although the regulations do not define "good cause," the standard plainly confines the discretion of immigration judges to grant continuances. Rather than giving "unfettered discretion to grant or deny a continuance," section 1003.29 "require[s] an [immigration judge] to make some inquiry into whether good cause exists in a given individual case." Ahmed v. Holder, 569 F.3d 1009, 1014 (9th Cir. 2009). "Good cause," in other words, does not mean "no cause" or "any cause." See, e.g., Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964) (procedural rule's "good-cause requirement is not a mere formality, but is a plainly expressed limitation on the use of [the rule]"); Parker v. Columbia Pictures Indus., 204 F.3d 326, 339-40 (2d Cir. 2000) (Sotomayor, J.) (contrasting a good-cause standard with a "more liberal" rule directing courts to grant relief "freely . . . when justice so requires").

B.

The Board's current framework for assessing a motion for continuance to allow time for collateral visa petition proceedings emerged about a decade ago. In 2008, the Third Circuit vacated a decision of the Board affirming an order denying a continuance that rested "solely on [the immigration judge's] case-completion goals." Hashmi v. Att'y Gen., 531 F.3d 256, 261 (3d Cir. 2008). The respondent had requested a continuance because he was the subject of a pending family-based visa petition that, if approved by USCIS, would have opened the door to adjustment of status, but the immigration judge refused to delay the removal proceedings in light of "his obligation to complete cases 'within a reasonable period of time.'" Id. at 258-59.

On remand from the court of appeals, the Board held that an immigration judge should consider and balance various factors in assessing a motion for continuance to allow the respondent to pursue a family-based visa petition. The Board listed the following factors: "(1) the DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent's statutory eligibility for adjustment of status; (4) whether the respondent's application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors." Hashmi, 24 I&N Dec. at 790. The Board explained that this list was "illustrative, not exhaustive," and that "the focus of the inquiry is the apparent ultimate likelihood of success on the adjustment application." Id. at 790. The Board remanded the case for the immigration judge to apply the multifactor balancing test. Id. at 794.

The Board has since extended the Hashmi framework to continuance requests related to other types of collateral proceedings. It applied Hashmi in the employment-based visa context in Matter of Rajah, 25 I&N Dec. 127 (BIA 2009). There, the Second Circuit had remanded the case for the Board "to identify the boundaries of the discretion that [immigration] judges may exercise" in deciding whether to grant a continuance in light of a labor certification pending before the Department of Labor.² Rajah v. Mukasey, 544 F.3d 449, 456 (2d Cir. 2008). On remand, the Board held that the framework adopted in Hashmi also applies to respondents seeking employment-based visas and related relief. Rajah, 25 I&N Dec. at 130, 135-36, 137-38. In Matter of Sanchez Sosa, 25 I&N Dec. 807 (BIA 2012), the Board extended Hashmi (with some tweaks for procedural reasons) to aliens who are petitioning USCIS for U visas, which...