Sessions’ Decision Places New Burdens on Individuals in Removal Proceedings and Immigration Judges

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Attorney General Jeff Sessions issued a decision on continuances in immigration court that both recognized their importance and decried their alleged overuse.  This decision will have widespread implications for immigration court process.

The case, Matter of L-A-B-R-, addresses circumstances under which an immigration judge can continue a case so a person in removal proceedings may pursue collateral relief. For example, a person can pursue a family or employment-based petition with U.S. Citizenship and Immigration Service (USCIS) while they fight their removal in immigration court. An approval of a petition could ultimately result in the person becoming a lawful permanent resident in immigration proceedings.

This is why continuances have always been so critical as they allow an immigrant time to seek relief outside of deportation proceedings that may affect the outcome of their case.

The Attorney General’s decision examines the use of continuances by setting forth when an immigration judge would have “good cause” to grant continuances. Sessions states that the two primary factors to be considered are the likelihood the individual will receive collateral relief and whether it would affect the outcome of the proceedings.

Though Sessions does not overturn the Board of Immigration appeals cases that have previously established a multi-factor test for determining good cause in these cases there is no question that Sessions’ goal is to lessen the use of continuances across the board. He premises his analysis of the “good cause” standard by alleging “unjustified continuances” are a “significant and recurring problem” and describes the L-A-B-R- decision as a necessary step to provide “additional guidance to protect against abuse.”

Much of the harm will likely be in the implementation of the decision and the additional requirements needed to grant a continuance. It remains unclear, for example, what evidence may be required by judges to prove the likelihood an individual will benefit from collateral relief. The decision also fails to mention how providing that evidence would be difficult for individuals who do not have the assistance of an attorney. It also remains to be seen how an individual will demonstrate “diligence” in pursuing collateral relief and what level of deference will be paid to the government attorney who opposes the continuance.

Though the decision emphasized the importance of “administrative efficiency” and pays lip service to streamlining immigration court proceedings and alleviating delays attributed to continuances, it does not fully acknowledge other causes of delay. Citing a June 2017 GAO Report, for example, Sessions focuses on an 18 percent increase in “respondent-related” continuances between 2006 and 2015. He fails to note, however, that immigration judge-requested continuances increased by 54 percent during the same period and operational continuances increased by 33 percent.

On the heels of Castro Tum, a decision that dismantled another important docket management tool known as administrative closure, retired immigration judges and former members of the Board of Immigration Appeals have expressed concern about this most recent attempt to limit judicial independence. Individuals and their attorneys now will have to work that much harder to fight for continuances to seek relief to which they are entitled, as the Attorney General continues to make it more difficult to preserve due process in immigration proceedings.

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