In my recent Backgrounder, "The Massive Increase in the Immigration Court Backlog, Its Causes, and Solutions", I described the role that the increase in continuances in the immigration courts have played in that backlog.
Yesterday, with little fanfare, the Executive Office for Immigration Review (EOIR), the Department of Justice (DOJ) agency with authority over the immigration courts, issued an operating policies and procedures memorandum (OPPM) to curb the number of continuances that immigration judges (IJs) issue. That OPPM, OPPM 17-01, captioned "Continuances", states:
This [OPPM] ... is intended to provide guidance to assist Immigration Judges with fair and efficient docket management relating to the use of continuances. It is not intended to limit the discretion of an Immigration Judge, and nothing herein should be construed as mandating a particular outcome in any specific case. Rather, its purpose is to provide guidance on the fair and efficient handling of motions for continuance in order to ensure that adjudicatory inefficiencies do not exacerbate the current backlog of pending cases nor contribute to the denial of justice for respondents and the public.
This OPPM expands on an earlier one, OPPM 13-01, which delineated in more general terms the factors that IJs should follow in granting continuances.
Importantly, the OPPM states:
Overall, while administrative efficiency cannot be the only factor considered by an Immigration Judge with regard to a motion for continuance, it is sound docket management to carefully consider administrative efficiency, case delays, and the effects of multiple continuances on the efficient administration of justice in the immigration courts. This consideration is even more salient in cases where the respondent is detained. In all cases, an Immigration Judge must carefully consider not just the number of continuances granted, but also the length of such continuances. Most importantly, Immigration Judges should not routinely or automatically grant continuances absent a showing of good cause or a clear case law basis.
Noting the "strong incentive by respondents in immigration proceedings to abuse continuances," the OPPM directs IJs to "be equally vigilant in rooting out continuance requests that serve only as dilatory tactics." The OPPM provides guidance to IJs to follow in considering requests for continuances for aliens to obtain counsel, for attorney preparation, and for continuances of merits hearings. It also addresses the "rare" requests for continuances by the government.
In the Backgrounder, I described the pressures on IJs to grant continuances, and noted that one of the responses to that pressure would be for the attorney general to issue a decision on certification setting "limits on the ability of IJs to grant continuances by specifying the parameters of their regulatory authority to do so 'for good cause shown.'" Such a decision will still likely have to be issued. OPPM 17-01, however, shows that DOJ understands that continuances have to be reined in for EOIR to get a handle on the immigration court backlog.