On August 16, 2018, Attorney General Jefferson Sessions (AG), in yet another lengthy opinion seeking to alter settled immigration court practice, set limits on Immigration Judges (IJs) in the granting of respondents’ motions for continuance. Stating that the number of continuances granted by IJs has increased dramatically over the past decade while the Board of Immigration Appeals (BIA or Board) has declined to hear “numerous interlocutory appeals recently filed” by DHS challenging orders granting continuances, the AG explained that he had certified the instant cases to himself and requested briefing on “the proper application of the good cause standard to a motion for continuance to accommodate collateral proceedings.” AG Sessions held that an IJ must assess whether good cause supports a continuance by applying a multifactor analysis requiring that the “principal focus” be on the likelihood that collateral relief will be granted and will “materially affect the outcome of the removal proceedings.”
At the beginning of his analysis, the AG noted his belief that continuances are readily susceptible to use as a delaying tactic and that the Department of Justice’s Office of the Inspector General has concluded that a “substantial share” of motions for a continuance are by those seeking time to apply for some type of relief from DHS or the IJ. This perceived “overuse of continuances,” stated the AG, has become “a significant and recurring problem”; “unnecessary continuances,” he found, “undermine the detailed statutory and regulatory scheme established under the INA.” He therefore concluded that, while under 8 C.F.R. §1003.29 IJs should continue to apply the multifactor test to see whether good cause exists for a continuance for a collateral proceeding, the ultimate decision should primarily turn on “the likelihood that the collateral relief will be granted and will materially affect the outcome of the removal proceedings.”
However, stated AG Sessions, the factors relevant to a good-cause finding per §1003.29 are not all of equal importance. In ruling on such a motion, an IJ must focus principally on two factors: 1) the likelihood respondent will receive the collateral relief and 2) whether said relief will materially affect the outcome of removal proceedings. Also to be considered are whether respondent has exercised reasonable diligence in pursuing collateral relief, DHS’s position on the motion, the length of the requested continuance, and the procedural history of the case. The AG emphasized that the respondent “bears the burden of establishing good cause”; still, the “most important consideration in the good-cause analysis” is the probability that the collateral proceeding will succeed and materially affect the outcome of removal proceedings.
Next, AG Sessions stated that IJs must consider all relevant factors. Some germane secondary issues, he noted, include – as previously mentioned – respondent’s diligence in seeking collateral relief, the DHS’s position on the motion and concerns of administrative efficiency, along with the length of the continuance requested, the number of hearings held and continuances granted previously, and the timing of the continuance motion.
As to the movant’s diligence, the AG found that a respondent seeking a continuance “must demonstrate that he has a well-founded justification”; continuances should not be granted where “the respondent appears to be seeking interim relief as a way of delaying the ultimate disposition of the case.” Concerning the DHS position on the continuances, IJs need not “treat as controlling” the government’s consent or opposition to – or failure to even take a position on –the motion; on the other hand, IJs should not shift the burden to DHS to prove an absence of good cause.
Finally, in a direct limiting of IJs’ use of prosecutorial discretion to postpone a removal hearing where an applicant points to possible relief stemming from a collateral proceeding, AG Sessions reiterated that respondents seeking a continuance to apply for an I-601A unlawful presence waiver are ineligible while removal proceedings are pending. Therefore, there is never good cause for such a continuance. IJs should also deny such a motion if the collateral submission has already been denied and there are no changed circumstances. Assessing “the speculativeness of a respondent’s collateral matter,” will generally require an “evidentiary submission” including copies of papers filed in the collateral matter, supporting affidavits, etc. The AG also reminded IJs to state their reasons for granting a continuance on the record or in a written decision. AG Sessions thus vacated the BIA’s orders declining to entertain these appeals and remanded the cases to the Board for further proceedings consistent with this opinion. Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018).