Attorney General Jeff Sessions directed the Board of Immigration Appeals (BIA) last week to refer Matter of L-A-B-R- to him for review. This represents another attempt by the attorney general to address delays and backlogs in the immigration courts.
In my March 6, 2018, post "An Unusual Amicus Argument", I discussed in great detail the attorney general's authority to review BIA decisions, which is also called "certification". As Professor Joseph Landau of Fordham Law School stated in "DOMA and Presidential Discretion: Interpreting and Enforcing Federal Law": "This certification power, though sparingly used, is a powerful tool in that it allows the Attorney General to pronounce new standards for the agency and overturn longstanding BIA precedent."
In Matter of L-A-B-R-, the attorney general invited the parties in that proceeding, and interested amici, to file briefs addressing the following question:
An Immigration Judge is authorized to "grant a motion for continuance for good cause shown." 8 C.F.R. § 1003.29 (2017); see also id. § 1240.6 (2017) (authorizing an Immigration Judge to "grant a reasonable adjournment either at his or her own instance or, for good cause shown, upon application"). In these cases, Immigration Judges granted continuances to provide time for respondents to seek adjudications of collateral matters from other authorities. Under what circumstances does "good cause" exist for an Immigration Judge to grant a continuance for a collateral matter to be adjudicated?
It is not entirely clear from the attorney general's order what "collateral matters" are at issue in that case. The principle of granting continuances pending the adjudication of visa applications that are not before the court is well established in the current immigration law, however, and is likely at issue in that matter.
For example, in Matter of Hashmi, the BIA held that an unopposed motion by an alien for continuance pending the adjudication of a family-based visa petition by U.S. Citizenship and Immigration Services (USCIS) "should generally be granted if approval of the visa petition would render [the alien] prima facie eligible for adjustment of status." The BIA there set out standards for the courts to follow in adjudicating such motions for continuances:
In determining whether to continue proceedings to afford the respondent an opportunity to apply for adjustment of status premised on a pending visa petition, a variety of factors may be considered, including, but not limited to: (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. These factors are illustrative, not exhaustive. While all these factors may be relevant in a given case, the focus of the inquiry is the apparent ultimate likelihood of success on the adjustment application.
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 multiple 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.
Many of the cases in which multiple continuances have been granted are likely cases awaiting the adjudication of collateral matters by other agencies, such as applications for family-based visas before USCIS. For example, by the time that Matter of Hashmi was considered by the BIA the first time (it was reviewed and remanded by the Court of Appeals for the Third Circuit before the BIA issued its precedent decision), the respondent had received four separate continuances over a period of 18 months from the immigration court.
Given this fact, circumscribing the instances in which continuances may be granted pending adjudications of collateral matters by other agencies would likely significantly reduce the number of continuances in given cases, and thereby shorten case completion times generally.
That said, it is questionable why a case should be continued to allow an alien to become eligible for relief at all. If, at the time of the master calendar hearing, the alien is found to be removable, but is not eligible for relief, the alien should (in most instances) be ordered removed. As the BIA held in Matter of Ramirez-Sanchez: "Once deportation proceedings are commenced, the immigration judge must order deportation if the evidence supports the charge." Other than possibly petitions for U visas, it is not clear what public policy is advanced by such continuances, particularly where the alien could be processed at a U.S. consulate abroad if the visa petition were granted.
Finally, it should be noted that this case and Matter of Castro-Tum (which I discussed in my January 6, 2018, post "Attorney General Orders Review of Administrative Closure") clearly indicate an interest by the attorney general to speed the immigration court removal process. In Matter of Castro-Tum, the attorney general:
[D]irected the parties and interested amici to brief the issue of whether immigration judges and the BIA "have the authority, under any statute, regulation, or delegation of authority from the Attorney General, to order administrative closure in a case," and if not, whether he should delegate that authority to those bodies. Assuming that the immigration judges and the BIA have such authority, he also directed briefing as to whether he should withdraw that authority.
While administratively closed cases are technically removed from the court's active calendar, administratively closing a case naturally slows the removal process, because an alien cannot be ordered removed while a case is administratively closed.
Similarly, in Matter of Hashmi, the BIA "urge[d] the [Department of Homeland Security (DHS)] to consider agreeing to administrative closure of" cases "where there is a pending prima facie approvable visa petition." It stated:
Administrative closure is an attractive option in these situations, as it will assist in ensuring that only those cases that are likely to be resolved are before the Immigration Judge. This will avoid the repeated rescheduling of a case that is clearly not ready to be concluded. Notably, either party can move to have the case recalendered once the visa petition has been adjudicated or some other factor has arisen indicating that the case is ready for a hearing.
Ending the practice of administrative closure without some change to the rule that immigration courts should generally grant unopposed motions to continue removal proceedings pending the adjudication of family-based visas petition by USCIS would result in more continuances, not fewer. Similarly, this would likely have no effect on the backlog before the immigration courts.
It remains to be seen, however, whether the attorney general will take any action with respect to administrative closure or continuances pending collateral matters. In the meantime, as the American Immigration Council has stated with respect to Matter of L-A-B-R-:
Though it appears the Attorney General is attacking, through the certification process, respondents' ability to pursue immigration benefits for which they are eligible, until he issues a decision laying out new standards for continuances, the status quo remains unchanged.