On August 14, the Board of Immigration Appeals (BIA) — the DOJ tribunal that reviews immigration decisions — issued an opinion in Matter of A-K-R-, concluding that an immigration judge (IJ) did not err in denying a third continuance to an alien respondent to find counsel, deeming the respondent’s request to file an asylum application abandoned, and ordering the respondent removed. Simply put, the Board concluded the Immigration and Nationality Act (INA) requires IJs to give aliens 10 days to find a lawyer — no less, but no more either. If this precedent stands, it will advance what the Supreme Court has termed a “strong public interest” — and thereby remove a huge impediment to the smooth functioning of our immigration system.
A-K-R-
The respondent, identified only as “A-K-R-” to comply with regulations protecting the identity of aliens who have stated an intention to seek humanitarian protection, is an Indian national who entered the United States illegally at some point in the past.
On January 8, 2026, he was issued a Notice to Appear (NTA), the charging document in removal proceedings, and taken into immigration custody.
Twenty-six days later, on February 3, he appeared before the immigration court for his “initial master calendar hearing”, the first appearance in removal proceedings, which is similar to an arraignment in criminal court.
At that hearing, the IJ provided A-K-R- with the advisals required under 8 C.F.R. § 1240.10(a), and gave him two weeks to find an attorney or to file an application for “relief”, that is, an immigration benefit or protection that would allow him to remain in the United States.
Two weeks later, on February 17, A-K-R- appeared again before the IJ and requested more time to find counsel. The court gave the respondent two more weeks to find a lawyer and reset the matter to March 2.
On that date, respondent again appeared without an attorney. A-K-R- admitted the removal charges in the NTA and the IJ found he was removable as charged.
At that point, A-K-R- claimed a fear of harm if he were returned to India, and the IJ told him he may be eligible for asylum and the associated protections of statutory withholding of removal under section 241(b)(3) of the INA and withholding of removal under the Convention Against Torture (CAT).
Aliens submit the same form, I-589, “Application for Asylum and for Withholding of Removal” to apply for asylum, statutory withholding, and CAT, and the IJ reset the matter for 16 days, to March 18, for A-K-R- to either file that application or be ordered removed.
At that next hearing date, A-K-R- appeared without the I-589, complaining “he was unable to get any documents”, and requested yet another continuance.
The IJ denied that request and ordered the respondent removed from the United States.
A-K-R- filed an appeal with the BIA, contending the IJ erred in proceeding with his case because he had been “unable to contact an attorney or obtain documents to support his claim due to a lack of funds or people outside detention who could assist him” and that “he lacked the education necessary to complete an application for relief by himself”.
The “Right to Counsel” in Removal Proceedings
Section 292 of the INA governs an alien’s right to counsel in removal proceedings, and it provides that respondents “shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as [they] shall choose”.
In other words, aliens facing removal charges have a statutory right to counsel, but because removal proceedings are civil, not criminal, in nature, they do not have a right to free counsel provided by the government.
That said, a number of attorneys nationwide are willing to provide pro bono counsel at free or reduced rates for aliens in removal proceedings, and among the regulatorily mandated advisals IJs must provide respondents at initial master calendar hearings are the following:
[the] right to representation, at no expense to the government, by counsel of his or her own choice authorized to practice in the proceedings [and] the availability of pro bono legal services for the immigration court location at which the hearing will take place.
IJs are also required to “ascertain that the respondent has received a list of such pro bono legal service providers”, and in this case the immigration court complied with that regulatory requirement, as well.
“Securing of Counsel” under Section 239 of the INA
Those regulatory advisal mandates in 8 C.F.R. § 1240.10(a) are based on and mirror requirements in section 239 of the INA, the statutory provision that governs the issuance and service of NTAs.
Specifically, when DHS serves aliens with NTAs, section 239(a)(1)(E) of the INA requires officers to notify the respondents served that they “may be represented by counsel” and to provide them with “a current list of” pro bono counsel.
To make sure those pro bono provider lists are up-to-date, section 239(b)(2) of the INA requires DOJ to “provide for lists (updated not less often than quarterly) of persons who have indicated their availability to represent pro bono aliens” in removal proceedings under section 240 of the INA.
That said, Congress understood that there is a difference between a statutory right to counsel in removal proceedings and a real opportunity to find a lawyer.
Consequently, section 239(b)(1) of the INA (“Securing of counsel”), states that, “In order that an alien be permitted the opportunity to secure counsel before” the initial master calendar hearing, “the hearing date shall not be scheduled earlier than 10 days after the service of the notice to appear, unless the alien requests in writing an earlier hearing date”.
Keep that requirement in mind, because it is key to the BIA’s latest opinion.
“Continuances”
Technically, an IJ can issue a removal order at any point during removal proceedings, provided the court concludes that there are no additional issues for it to consider.
To ensure aliens can take advantage of their section 292 right to counsel and to otherwise protect the parties’ “due process” rights in removal proceedings, however, regulations at 8 C.F.R. § 1003.29 (“Continuances”) explicitly permit IJs to “grant a motion for continuance for good cause shown”.
The regulation never explains what “good cause” respondents must “show” to secure a continuance, however, which has been a major impediment to the expeditious completion of removal proceedings — and in turn a significant roadblock to the smooth functioning of our immigration system, because under section 241(a) of the INA, DHS usually needs an IJ removal order to deport any alien.
And IJs’ ability to quickly complete removal cases has been an issue for two decades, as the Government Accountability Office (GAO) concluded in a June 2017 report, “Immigration Courts. Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges”.
GAO reported therein that between FY 2006 and FY 2015, immigration courts’ backlogs had increased 44 percent — even “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.
GAO determined the “median initial case completion time”, i.e., the period between the filing of the NTA and the point at which IJs issued final decisions, had increased more than 500 percent over that period, “from 43 days in fiscal year 2006 to 286 days in fiscal year 2015”.
One key reason why case completions were taking so much longer, the GAO concluded, was because IJs were granting more continuances.
GAO explained that “the use of all types of continuances increased by 23 percent” during that 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”.
Axiomatically, GAO noted that “cases with multiples continuances took longer to complete than cases with no or fewer continuances”.
Having done the job, I can assure you most IJs weren’t granting multiple continuances because they were lazy; they granted them because the continuance regulation was vague and denying a continuance exposed an IJ to a finding by the BIA and/or circuit court on review that the judge had denied the alien due process — a black mark on any jurist’s record.
Matter of C-B-
Precedent wasn’t much help, either, which brings me to Matter of C-B-, a 2012 opinion in which the BIA held IJs “must grant” respondents “a reasonable and realistic period of time to provide a fair opportunity for the respondent to seek, speak with, and retain counsel” prior to proceeding, particularly where the alien has indicated an intent to seek asylum, statutory withholding, or CAT.
On the one hand, that’s common sense, and it should be noted that the respondent there (C-B-) was ordered removed at his initial master calendar hearing, where he was detained and unrepresented.
At that hearing, C-B- initially told the IJ he didn’t want a lawyer but instead wanted to be ordered removed but then changed his mind and stated he wanted time to find counsel “because he had a son”.
As the Board explained, the IJ “did not ask for clarification regarding the respondent’s request for a continuance to seek counsel; nor did she rule on the request for a continuance. Instead, she proceeded to take pleadings and find the respondent removable.”
On the other hand, however, “a reasonable and realistic period of time to provide a fair opportunity for the respondent to seek, speak with, and retain counsel” is as vague a standard as “good cause shown”.
Matter of A-K-R-
While the Board in Matter of C-B- cited sections 292 and 240(b)(4)(A) of the INA — the latter of which essentially repeats section 292’s language on the right to counsel at no expense to the government — it never referenced the “securing of counsel” language in section 239(b)(1) of the act at all.
Which brings me to Matter of A-K-R-, where the BIA corrected that oversight and gave IJs the “brightline rule” they’ve needed for decades in deciding whether to grant aliens’ motions to continue their removal hearings for counsel.
Reading the act in toto, the Board concluded that “the only statutory or regulatory time requirement ... necessary to safeguard an alien’s privilege of legal counsel is that the first hearing may not be scheduled earlier than 10 days after service of the notice to appear as set forth in section 239(b)(1) of the” INA.
Consequently, the BIA concluded that the portions of its opinion in Matter of C-B- “regarding the legal standard it purported to create with respect to the right to counsel departed from the text of the statute and is dicta”, and for that reason the Board “withdrew” from any implication that they “set[] forth a statutory or regulatory mandate”.
Simply put, the BIA in Matter of A-K-R- held that Congress in section 239(b)(1) of the INA gave aliens in removal proceedings 10 days to find a lawyer, and while IJs in specific situations may give them more time for counsel, nothing in the act or regulations requires them to do so.
To close the loop, the Board also dismissed A-K-R-‘s claim that he should have been given additional time to find an attorney to help him complete the I-589, noting that he failed to “include any specifics as to what diligent steps he took, if any, to complete the application or find assistance to do so”.
The Application for Asylum and Withholding of Removal is deliberately simple, written in such a way to allow pro se applicants to complete it, and as I have explained in the past, the asylum statute provides that an applicant’s testimony alone “may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee”.
Will It Stand?
As the Supreme Court has held, there’s a “strong public interest in bringing” immigration cases “to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases”. The BIA’s opinion in Matter of A-K-R- advances that “strong public interest”.
That is, it will do so, if Article III circuit courts don’t strike it down first.
As the BIA explained: “The Fifth Circuit, in whose jurisdiction this case arises, has assumed without deciding that, while aliens do not have a Sixth Amendment right to counsel, they may have a Fifth Amendment due process right to counsel.”
Because the IJ denied A-K-R- a third continuance more than six weeks after his initial master calendar hearing, and more than two months after he was first served with his NTA, the Fifth Circuit will likely conclude he had sufficient time to find counsel, and dismiss any due process claim he might bring.
That said, a similar case, in which an IJ denies an alien’s motion for continuance for counsel on a shorter timeframe, may present a more complicated due process challenge for the government. Some degree of IJ prudence and discretion will still be in order, Matter of A-K-R- notwithstanding.
Why Only Now?
Congress first limited aliens to 10 days to find counsel when it amended section 239(b)(1) of the INA in 1996, which raises the question why it took the BIA nearly three decades to apply that restriction.
The likely answer is as disheartening as it is simple: There are hundreds of thousands of words in the INA, and most DHS attorneys and DOJ adjudicators are only really familiar with the ones they use daily, such as the asylum standards in section 208 of the act and the removal proceeding rules in section 240.
To be fair, there were a lot of INA amendments in that 1996 act, and the then-INS and the immigration courts didn’t have a lot of time to digest them all. And as the recent legal folderol over the Trump administration’s “mass detention” policy (also based on 1996 changes) reveals, courts are “reluctant” (to put it charitably) at this late date to permit the implementation of the strictest ones.
Bottlenecks
For decades, respondents in immigration court have used serial continuances to stretch their removal cases out indefinitely, thus stymieing DHS’s ability to deport them. On August 14, DOJ’s appellate review board put an end to that practice — for now — and put aliens in proceedings on notice that, if they want legal representation, the clock is ticking.