In another moved intended to reduce the backlog facing the immigration courts, Attorney General Jeff Sessions issued a decision on August 16, 2018, in Matter of L-A-B-R-, in which he established bright-line rules for immigration judges to follow in considering continuances under 8 C.F.R. § 1003.29. That regulation states: "The Immigration Judge may grant a motion for continuance for good cause shown."
Such continuances can have a significant impact on the backlogs in immigration courts.
In a June 2017 report, the Government Accountability Office (GAO) found that between FY 2006 and FY 2015, the immigration court caseload increased 44 percent "due to an increase in the case backlog, while case receipts remained steady." Significantly, it found:
The increase in the immigration court case backlog occurred as immigration courts completed fewer cases annually. Specifically, the number of immigration court cases completed annually declined by 31 percent from fiscal year 2006 to fiscal year 2015 — from about 287,000 cases completed in fiscal year 2006 to about 199,000 completed in 2015.
Fewer cases were likely adjudicated, at least in part, because case completion times ballooned during this period. GAO determined that the median initial case completion time, that is the period between the filing of the charging document (known as a Notice to Appear, or "NTA") and the point at which the immigration judge makes a final decision increased more than 500 percent "from 43 days in fiscal year 2006 to 286 days in fiscal year 2015."
The number of continuances granted between FY 2006 and FY 2015 also increased significantly, as did the number of cases with multiple continuances. GAO concluded that "the use of all types of continuances increased by 23 percent" during this period, and that "9 percent of cases completed in fiscal year 2006 experienced four or more continuances compared to 20 percent of cases completed in fiscal year 2015." Logically, GAO noted, "cases with multiples continuances took longer to complete than cases with no or fewer continuances."
Curbing the number of continuances, therefore, is critical to reducing the backlog before the immigration courts.
In my June 2017 Backgrounder, "Tackling the Backlogs in the Immigration Courts", I suggested that the attorney general should use his referral authority to consider this issue, "by specifying the parameters of" immigration judges' regulatory authority to grant continuances "for good cause shown", explaining:
Ironically, most IJs would prefer such guidance to a system in which they have scant ability to control their dockets without running the risk of a reviewing court finding that they have denied "due process" by denying continuances to aliens who have already been granted numerous continuances.
Motions to continue can arise in a variety of different situations, such as where the respondent or a key witnesses is ill, the respondent seeks time to find a lawyer, or the respondent wants to file an application for relief. Matter of L-A-B-R- focuses on continuances that are requested by respondents to pursue "collateral relief", that is "relief in other forums that may affect the outcome of their removal proceedings", such as an application with U.S. Citizenship and Immigration Services (USCIS) for a petition that, if approved, would enable those aliens to apply to be granted status in the United States, like an immediate relative visa petition.
In his August 2018 decision, the attorney general logically explained that:
When a respondent requests a continuance to accommodate a collateral proceeding, the good-cause inquiry thus must focus on whether the collateral matter will make a difference in the removal proceedings — that is, "whether a continuance is likely to do any good." ... This will turn out to be true only if the respondent receives the collateral relief and that relief materially affects the outcome of respondent's removal proceedings.
Therefore, the attorney general held, continuances should not be granted where the respondent's "collateral pursuits are merely speculative."
In addition, he held, "immigration judges must also consider any other relevant factors," although the attorney general admitted that not every good-cause factor could be identified. He stated, however, that "germane secondary factors may include ... the respondent's diligence in seeking collateral relief, [the Department of Homeland Security's (DHS's)] position on the motion for continuance, and concerns of administrative efficiency."
With respect to the position of DHS, the attorney general determined that while the department's position "will often assist the immigration judge's good-cause analysis," it is not dispositive of whether the immigration judge should grant or deny the motion. He also noted, though, that "immigration judges must also avoid improperly shifting the burden to DHS to demonstrate the absence of good cause."
In explaining "administrative efficiency", the attorney general referenced Operating Policies and Procedures Memorandum (OPPM) 17-01, captioned "Continuances", issued by the Executive Office for Immigration Review (EOIR). I detailed OPPM 17-01 in an August 2017 post captioned "DOJ Moves to Curb Continuances in Immigration Court". He explained that this OPPM "appropriately recognizes efficiency as a relevant factor in the good-cause analysis." The number of prior continuances, and the continuance's "impact on the efficient determination of the case, among other case-specific factors", were relevant considerations, the attorney general suggested.
In applying all the factors, the attorney general held, a stronger factor may make up for weaker factors. For example: "A respondent who makes a compelling case that he will receive collateral relief and successfully adjust status may receive a continuance even if, for instance, he has already received previous continuances."
That said, the attorney general made clear that "because the respondent's likelihood of success in the collateral matter is paramount, a truly weak showing on that front may be dispositive." Among the examples he listed were applications that could not be granted, collateral attacks on criminal convictions, and collateral forms of relief that had already been denied where there were no changed circumstances. In addition:
Even if the respondent's collateral proceeding has clear promise, it will sometimes be impossible or too uncertain that the collateral relief will affect the disposition of the removal proceedings. For example, the immigration judge must deny a continuance if he concludes that, even if USCIS approved the respondent's visa petition, he would deny adjustment of status as a discretionary matter or because the respondent is statutorily ineligible for adjustment.
Finally, he held, "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."
The attorney general noted that in order to assess the speculativeness of the collateral matter, the immigration judge will generally need an evidentiary submission by the respondent, "which should include copies of relevant submissions in the collateral proceeding, supporting affidavits, and the like."
In addition, the attorney general held that immigration judges should make clear on the record or in a written decision why they are granting continuances, because "[a] record of the immigration judge's evaluation and balancing of the relevant good-cause factors does not bind the Board ... but it does aid the Board's review of a continuance order."
He concluded by making clear that while "the determination of good cause remains within the immigration judge's discretion," where an alien seeks to continue removal proceedings to pursue collateral relief, the regulation "requires scrutiny of whether the respondent's collateral proceeding is likely to make a difference."
After this decision is implemented, it will be interesting to see how the court of appeals handle the attorney general's attempt to provide the immigration courts with bright-line rules.