COLUMN-IMMIGRATION CORNER – Atty. Gen. Sessions makes it harder to obtain court continuances/postponements

On Aug. 16, 2018, Atty. Gen. Jeff Sessions issued an opinion, to be binding on all immigration courts, on when an immigration judge may grant a continuance of deportation/removal proceedings, where the alien is pursuing a green card or other relief from USCIS (collateral relief). This situation typically arises when a person is in deportation/removal proceedings, and marries a US citizen, who petitions them for green card. Or, they were petitioned by an employer or a family member, and the priority date is almost current. They seek a continuance/postponement of their court proceedings, to give USCIS enough time to approve the petition or other immigration benefit. Under this new decision, the Atty. Gen. is severely limiting the ability of a person to obtain such continuances. Instead he instructs that immigration judges may grant a continuance only for “good cause” by evaluating (1) the likelihood that the collateral relief (such as a petition or other application) will be granted, and (2) if that relief is granted, will it materially affect the outcome of the removal proceedings.

In the decision, the Atty. Gen. noted that many people in deportation/removal seek continuances solely to delay and drag out their case, without having any legitimate way to obtain a green card. But this decision could actually result in people being ordered removed/deported even if they have a viable way to legalize their status, just because the Atty. Gen. wants to rush cases through the immigration courts.

According to the Atty. Gen., among the leading causes of continuances was a petition or other application pending at USCIS, and the person was merely waiting for that petition or application to be approved. Under this decision, to request a continuance, the person must demonstrate “good cause.” There are several factors immigration judges must consider to determine whether “good cause” exists. However, the two most important factors are: (1) the likelihood that the collateral relief (such as a petition or other application) will be granted; and (2) if that relief is granted, will it materially affect the outcome of the removal proceedings? Other factors in determining “good cause” for a continuance would include: the person’s diligence in seeking that relief (i.e. could a relative have petitioned them years ago, but they are filing only now); whether DHS opposes the continuance; the length of the continuance requested; the number of hearings held and previous continuances granted; concerns of administrative efficiency; and the timing of the request for continuance.

The Atty. Gen. noted that if a person became ill just before a hearing, or there was a drastic change in circumstances that would alter the course of the case, that could constitute good cause for a continuance because it would be “wasteful and inefficient to plow ahead immediately.” However, if a person is not eligible for adjustment of status, the priority date on their petition is not yet current (for example, they were petitioned as a married child or brother or sister of US citizen, and the priority date is still years away), or they want to pursue some other “speculative” relief, such as post-conviction relief or governor’s pardon in connection with a crime, that may not justify a continuance. Moreover, if it appears the person has already been granted several continuances in the past and they are seeking continuances merely as a way of delaying the case, the request for continuance should be denied.

This recent decision is another demonstration that the Trump administration is getting extremely tough in connection with deporting/removing aliens and is expecting immigration judges to rush cases through, at the expense of ensuring the alien’s due process. Judges are expected to have a “deportation quota,” meaning they have to process a certain number of cases per year, regardless of the complexity of the cases. Atty. Gen. Sessions also warned immigration judges against allowing “administrative closure” of cases, or the closing of cases that really do not involve serious immigration violation so there is more time available for serious immigration violators. Instead, Atty. Gen. Sessions wants those cases reopened and processed to conclusion.

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With this decision, the Atty. Gen. is now telling immigration judges to limit continuances. All of this is to make deportation/removal almost like an assembly line. That’s why if you have court proceedings, you should have an attorney represent you, who can make sure your rights are protected, and you’re not railroaded through the legal system without adequate protection.

Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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