On January 22, 2020, the Board of Immigration Appeals (BIA or Board) dismissed the appeal and denied the motion to remand of Respondent, who had been convicted of attempted possession of a controlled substance under Illinois law, detained, and placed into removal proceedings; he was charged with removability under INA §212(a)(b)(A)(i) for his presence in the U.S. without admission or parole and under §212(a)(2)(A)(i)(II) for the controlled substance violation. The Immigration Judge (IJ) found Respondent removable per (a)(6)(A)(i) but did not address removability under (a)(2)(A)(i)(II). At a subsequent hearing, Respondent informed the IJ that he planned to file a U visa petition with USCIS but was waiting for the necessary certification from law enforcement. The IJ continued proceedings so that Respondent could file an application for relief and the court could follow up on the status of the U visa petition.
At the next hearing, Respondent informed the court that he would not be pursuing an application for relief and had received the law enforcement certification and thus filed his U visa petition. He then applied for waivers of inadmissibility pursuant to, among other provisions, INA §212(d)(3)(A)(ii). At trial, the IJ granted Respondent’s requests for waivers of inadmissibility, declined to further continue the hearing to await adjudication of the U visa petition, and ordered Respondent removed. The appeal challenged the IJ’s decision denying Respondent’s motion for a continuance; while the appeal was pending, Respondent filed a motion to remand back to the IJ based on an informational letter he received from USCIS which stated that, while it appeared Respondent had established U visa eligibility, USCIS could not then grant the petition because the statuary cap has been reached for the fiscal year. At the time of this decision, Respondent remained detained.
In its initial analysis, the BIA noted the general rule that an IJ may, in his or her discretion, grant a continuance “for good cause shown.” Citing to the Attorney General’s opinion in Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018), the Board reiterated that in assessing “good cause,” the IJ must consider 1) the DHS response to the motion; 2) whether the underlying petition is prima facie approvable, and 3) the reason for the continuance and other procedural factors. The opinion explained that L-A-B-R- had “refined” the “analytical framework” in this area, holding that IJs and the Board must consider and balance “all relevant factors” to assess whether there is “good cause” to continue proceedings “to accommodate a collateral matter before another authority – such as a visa petition before the USCIS.” The primary factors to be considered in this assessment are 1) the likelihood that respondent will receive the collateral relief and 2) whether the relief will materially affect the outcome of the removal proceedings; secondary factors include the applicant’s diligence in seeking collateral relief, DHS’ position on the motion, and administrative efficiency, as well as the length of the continuance requested, the number of hearings held and continuances previously granted, and “the timing of the continuance motion.”
Here, the BIA relied for its decision on “relevant secondary factors that weigh against continuing the proceedings,” noting in particular Respondent’s lack of diligence in pursuing the U visa, DHS’ opposition to the motion, and administrative efficiency concerns, including uncertainty as to when the visa will be granted or issued and Respondent’s detained status. The decision pointed out that Respondent’s U visa application was premised on a decade-old criminal incident, but that he had only filed his petition a month before his removal hearing. Further, stated the Board, the requested continuance is “for an unknown and potentially lengthy period of time” and Respondent had been told by USCIS that the statutory cap had been reached so that his petition cannot be approved until new visas became available. In terms of “administrative efficiency,” the opinion also pointed out that the courts and BIA expedite the adjudication of cases involving detained respondents, recognizing both their “liberty interest” and the government’s interest in reasonably limiting “the expense of detention.” “Considering and balancing the relevant primary and secondary factors,” the Board agreed with the IJ that there was no good cause to continue the proceedings to await adjudication of the U visa petition; the relevant factors thus outweighed Respondent’s prima facie eligibility for a U visa and the impact that the approval of his visa may have on proceedings. There was also no due process violation in the IJ’s written revisions to the oral decision transcript, which the opinion found to be “minor, mostly grammatical, edits,” because any inaccuracies in the decision did not internally impact the outcome of the case of case or deprive Respondent of a “meaningful appeal.” The appeal was thus dismissed and the motion to remand denied. Matter of Mayen-Vinalay, 27 I&N Dec. 755 (BIA 2020).