Third Circuit Finds Denial of Continuance to Detainee Violated his Due Process Rights

The Third Circuit has determined that the denial of a continuance to a detainee who had recently obtained counsel violated his due process rights. “We are hard pressed to find a more compelling set of facts constituting a violation of Freza’s due process and statutory right to counsel. After Freza diligently sought counsel while incarcerated, he was finally able to obtain counsel the day before his rescheduled merits hearing. However, when that counsel moved for a 30-day continuance so that she could prepare to adequately represent him, the IJ denied the motion, and the BIA affirmed, relying primarily on the fact that Freza’s initial hearing had taken place almost a year before. The IJ and BIA plainly ignored that the delay was due to circumstances completely outside Freza’s control. Indeed, this was Freza’s first request for a continuance of his merits hearing and there was no evidence to indicate that the request was a dilatory tactic by Freza or his counsel. In fact, it was reasonable that counsel would request such a continuance, as she had only met with Freza for the first time less than 24 hours before the merits hearing and she had not had time to review the record. Denying the continuance under these circumstances was clearly an abuse of discretion and a violation of Freza’s due process and statutory right to counsel.”

The full text of Freza v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/212259p.pdf

Third Circuit Finds Error in Denial of Continuance

The Third Circuit has determined that the agency erred in denying a continuance to an applicant for cancellation of removal who wished to present additional lay and expert testimony regarding hardship to his children. “Here, the IJ rested his denial of the continuance on an assumption that witness testimony would be unnecessary and then faulted Martinez for perceived gaps in the record that those witnesses likely would have been able to fill. In the circumstances presented, we conclude that Martinez has demonstrated that the IJ’s decision fell outside the range of permissible decisions, as did the BIA’s decision endorsing that decision.”

The full text of Martinez Roman v. Attorney General can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/12ae7ed4-81e2-4349-a906-0050d41df79e/7/doc/20-3476_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/12ae7ed4-81e2-4349-a906-0050d41df79e/7/hilite/

Fourth Circuit Finds Agency Abused its Discretion by Denying Continuance to U Visa Applicant

The Fourth Circuit has determined that the agency abused its discretion by denying a continuance to a U visa applicant, when the Immigration Judge determined that she was likely to have her application approved. The court noted that the agency relied on “secondary factors” to determine that no good cause existed for a continuance: (1) the petitioner had been “found removable and did not submit any applications for relief” to the IJ; (2) she could still pursue her U visa application and seek a stay of removal from DHS; (3) DHS opposed the motion; and (4) it would not be administratively efficient to grant a continuance.” The agency failed to evaluate any of the primary factors: whether the collateral relief (i.e, the U visa) is likely to be granted and whether the decision on the collateral relief will affect the outcome of the removal proceedings.

The full text of Garcia Cabrera v. Garland can be found here:

https://www.ca4.uscourts.gov/Opinions/201943.P.pdf

Eighth Circuit Remands Case for Application of Sanchez Sosa Factors

The Eighth Circuit vacated the agency’s denial of a motion to reopen and remand to seek a continuance in light of a U visa application filed during the pendency of the appeal. The court noted that the Board can either apply the Sanchez Sosa factors or remand the case to an Immigration Judge to do so.

The full text of Quecheluno v. Garland can be found here:

https://ecf.ca8.uscourts.gov/opndir/21/08/202200P.pdf

First Circuit Affirms Denial of Continuance

The First Circuit has determined that IJ properly denied a motion for a continuance for I-130 adjudication because the allegations in a police report related to pending assault charges were so egregious that the judge would deny the adjustment as a matter of discretion. The court further affirmed the Board of Immigration Appeals’ decision denying a motion to remand when the I-130 was approved and the criminal charges dismissed, relying on the reasonableness of the IJ’s discretionary determination.

The full text of Lee v. Barr can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/19-1516P-01A.pdf

Seventh Circuit Remands to Evaluate Continuance for U visa

The Seventh Circuit reaffirmed that Immigration Judges “have the power to waive an alien’s inadmissibility, grant continuances, defer removal, and take other similar steps that may be required before a U visa is issued.” As such, it remanded for further analysis as to whether the petitioner was entitled to a continuance. “If the Board believed that Guerra Rocha’s request for a continuance was not warranted even though her application for the U visa was prima facie valid, it had to explain why it took that position. It is not enough merely to announce that it has taken account of all relevant factors.”

The full text of Guerra Rocha v. Barr can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D03-04/C:18-3471:J:Wood:aut:T:fnOp:N:2482817:S:0 

BIA Issues Decision Addressing Continuances for Collateral Relief

The Board of Immigration Appeals (BIA) affirmed the denial of a continuance to a detained U visa applicant, even though the applicant had been conditionally approved for U status and placed on the waitlist.

“There is no dispute that the respondent is prima facie eligible for a U visa and that a grant of his visa petition by the USCIS would materially affect the outcome of his removal proceedings. However, in assessing whether to grant an alien’s request for a continuance regarding an application for collateral relief, these primary factors are not dispositive. This is especially so where, as here, there are relevant secondary factors that weigh against continuing the proceedings—in particular, the respondent’s lack of diligence in pursuing a U visa, the DHS’s opposition to a continuance, and concerns regarding administrative efficiency, which include the uncertainty as to when a visa will be approved or become available and the respondent’s detained status.” The BIA then noted that the respondent was detained, had waiting until one month prior to his merits hearing to file the U visa, that DHS opposed the continuance, that it was unclear when a U visa would be available to the respondent, and that the respondent had waited 10 years from the date of the criminal incident to file for U nonimmigrant status.

The full text of Matter of Mayen-Vinalay can be found here:

https://www.justice.gov/eoir/page/file/1236941/download

Ninth Circuit Reverses Denial of Continuance

The Ninth Circuit has reversed the agency’s denial of a continuance to allow the petitioner to update his fingerprints, in light of his attorney’s erroneous advice that his fingerprints were still up-to-date, even though the judge had advised the petitioner at the prior hearing that he needed to update his fingerprints.

“[I]f an alien fails to provide updated fingerprints to DHS ‘because of an attorney,’ the alien’s reliance on the lawyer’s advice may constitute the requisite ‘good cause’ for a continuance under 8 C.F.R. § 1003.29. Here, because the lawyer’s bad advice post-dated the IJ’s instructions, Petitioner’s reliance on the later advice was especially reasonable. For example, the fingerprint requirements might have changed since his last hearing, including by lengthening the period during which fingerprints were valid or by allowing the California Department of Justice to send fingerprints to DHS. If the lawyer’s bad advice had preceded the IJ’s instructions, we might reach a different result.”

The full text of Pleitez-Lopez v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/23/16-73656.pdf

Seventh Circuit Upholds Denial of Continuance

The Seventh Circuit has upheld the denial of a continuance to an application who waited until 3 months before his merits hearing to file an I-751 waiver, despite his jointly-filed I-751 having been denied 3 years early based on marriage fraud.

The full text of Toure v. Barr can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D06-07/C:18-3634:J:Hamilton:aut:T:fnOp:N:2352317:S:0

Eighth Circuit Affirms Validity of Matter of Sanchez Sosa

The Eighth Circuit has remanded a case in which the petitioner requested reopening and remand of his removal proceedings based on a pending U visa application. The court noted that the Board of Immigration Appeals failed to apply its own precedent in Matter of Sanchez Sosa.

The full text of Caballero-Martinez v. Barr ca be found here:

https://ecf.ca8.uscourts.gov/opndir/19/04/172044P.pdf

Sixth Circuit Affirms Denial of Continuance

The Sixth Circuit has affirmed the denial of a motion to continue by a pro se litigant when his attorney advised him 6 weeks prior to the merits hearing that if he did not pay the balance owed, his attorney would withdraw; the attorney moved to withdraw one week prior to the merits; and the judge granted the motion to withdraw on the day of the merits. Thought the court dismissed the petition for review, it noted that, “[w]e do not hereby endorse the practices employed by either the withdrawing attorney or the IJ. “

The full text of Mendoza-Garcia v. Barr can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0044p-06.pdf

Attorney General Limits Immigration Judge's Authority to Continue Proceedings

The Attorney General has imposed narrow standards on when an Immigration Judge may continue proceedings. An immigration judge may grant a motion for a continuance of removal proceedings only "for good cause shown." When a respondent requests a continuance to pursue collateral relief, the immigration judge must consider primarily the likelihood that the collateral relief will be granted and will materially affect the outcome of the removal proceedings. The immigration judge should also consider relevant secondary factors, which may include the respondent’s diligence in seeking collateral relief, DHS’s position on the motion for continuance, concerns of administrative efficiency, the length of the continuance requested, the number of hearings held and continuances granted previously, and the timing of the continuance motion.

The Attorney General did emphasize that immigration judges need not treat as controlling DHS’s consent to, opposition to, or failure to take a position on a motion for continuance.

To assess the speculativeness of a respondent’s collateral matter, an 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. Absent such evidence, the respondent generally will not carry his burden of showing that a collateral matter is actually likely to bear on the outcome of the removal proceedings.

The immigration judge should also state his reasons for granting a continuance on the record or in a written decision. A record of the immigration judge’s evaluation and balancing of the relevant good-cause factors does not bind the Board, of course, but it does aid the Board’s review of a continuance order. The absence of any reasoned explanation for the grant of a continuance may, were the Board to entertain an interlocutory appeal, leave Cite the Board no choice but to vacate the order granting the continuance if evidence supporting good cause is not clear from the record.

The Attorney General also directed the Board of Immigration Appeals to entertain interlocutory appeals of decisions regarding continuances.

The full text of Matter of L-A-B-R-can be found here:

https://www.justice.gov/eoir/page/file/1087781/download

Attorney General Refers Cases Involving Continuances to Himself for Review

The Attorney General referred the decisions of the Board of Immigration Appeals to himself for review of issues relating to when there is “good cause” to grant a continuance for a collateral matter to be adjudicated, ordering that the cases be stayed during the pendency of his review.

The text of the referral order in Matter of L-A-B-R- can be found here:

https://www.justice.gov/eoir/page/file/1045661/download

Seventh Circuit Affirms Denial of Continuance and I-751

Parashu Giri married a U.S. citizen and obtained conditional permanent residence through his marriage.  Though he and his wife filed a joint petition to remove the conditions on his residence, they failed to appear for their interview.  His U.S.-citizen wife, Tammy, eventually sent a letter to U.S. Citizenship and Immigration Services (USCIS) withdrawing her support for the joint petition.  Nevertheless, four years later, the couple filed another joint petition to remove the conditions.  USCIS denied the petition, finding that Parashu maintained a relationship with his first wife after their divorce and had a child with her during his marriage to Tammy.  Thus, USCIS concluded that Parashu had entered into the marriage with Tammy solely for the purpose of evading the immigration laws.  Parashu was referred to Immigration Court for removal proceedings.

On the date of his merits hearing, his attorney requested a continuance because Parashu had not been fingerprinted and because she 800 pages of documents demonstrating the bona fides of Parashu's marriage to Tammy that she had been unable to timely file because she had only received them the day before.  The Immigration Judge (IJ) denied the motion for a continuance, finding that Parashu had had 2 years to prepare his application, and ordered him removed.  The Board of Immigration Appeals (BIA) affirmed the IJ's determination on appeal.

On appeal to the Seventh Circuit, the court found that the denial of Parashu's request for a continuance was permissible.  "The IJ denied the continuance because Parashu had over a year and a half to prepare for the merits hearing, which Parashu requested accelerated; he had been warned of the deadlines for filing his application and completing fingerprinting and failed to comply; he did not give a reason for his lack of compliance; and he did not request a continuance in advance of the merits hearing. This explanation is rational and neither inexplicably departs from established policies nor rests on an impermissible basis."  Though Parashu tried to argue to the Seventh Circuit that his continuance request was justified because his abusive wife was denying him access to needed documents, he did not make this argument before the IJ.

The Seventh Circuit also found that the IJ's determination of removability was proper because Parashu admitted the factual allegations necessary to sustain the charge of removabiilty.  

The full text of Giri v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D07-17/C:13-3767:J:Williams:aut:T:fnOp:N:1589570:S:0 

Seventh Circuit Denies Request for Continuance to File a Second I-130

It's been a rough month for immigrants married to U.S. citizens.  

Last week, the Seventh Circuit affirmed the removal of a man who married a U.S. citizen, but later divorced her over disagreements about having children.  Judge Posner wrote an impassioned dissent defending the good faith nature of the marriage, and accusing his fellow justices of seeing fraud where none exists.  See my post on Bouras v. Holde: 

http://www.sabrinadamast.com/journal/2015/3/8/seventh-circuit-denies-i-751-judge-posner-dissents-showing-sympathy-to-immigrant-but-contempt-for-immigration-attorneys

Earlier this week, the Eighth Circuit denied an immigrant's request for a continuance (admittedly, his 13th such request), to allow his daughter to file a petition on his behalf, on account of a prior finding by the Department of Homeland Security that the immigrant had engaged in marriage fraud.  See my post on Mogeni v. Holder:   

http://www.sabrinadamast.com/journal/2015/3/9/eighth-circuit-affirms-denial-of-request-for-13th-continuance

Today, we return to the Seventh Circuit, who in a decision issued on Wednesday, still showed little sympathy for the uphill battle our clients often face in proving that they married U.S. citizens for bona fide reasons, and not just to obtain permanent residence.  Mr. Souley also married a U.S. citizen, who filed a petition on his behalf.  The Government deemed the documents she supplied insufficient to demonstrate the bona fide nature of their relationship. complaining, in part, that there was no evidence of Mr. Souley on the lease for the couple's residence, and that he was not named in the eviction proceedings brought by the landlord.  Mr. Souley, a less than punctual person, put together a packet for a second petition, this time showing his name of the lease (though not his wife's) and showing a lawsuit pending against him for unpaid rent.  He did not file it, instead seeking a continuance from the Judge to do so, before investing the resources in the filing fees without knowing if the Judge would permit the adjudication process.  This was excellent foresight on his part, as the Judge denied his request for a continuance, finding that Mr. Souley had not demonstrated sufficient likelihood that this second would be approved, and thus, concluding that there was no good cause for a continuance.  He ordered Mr. Souley removed from the United States at a master calendar hearing.  The Seventh Circuit affirmed, finding that the possibility that the second petition (still not filed by Mr. Souley) to be too speculative to warrant a continuance.

You can read the full text of Souley v. Holder here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D03-11/C:14-2536:J:PerCuriam:aut:T:fnOp:N:1515069:S:0

Eighth Circuit Affirms Denial of Request for 13th Continuance

In an unsurprising decision, the 8th Circuit affirmed an Immigration Judge's denial of an immigrant's 13th request for a continuance.  The Judge noted that the immigrant was not likely to succeed in his quest to have an I-130 filed by his daughter approved because the Department of Homeland Security had already determined that he had engaged in fraudulent marriage.  Such a finding would bar the approval of the I-130 filed by his daughter.  The 8th Circuit affirmed, finding no good cause for another continuance request.

The full text of Mogeni v. Holder can be found here: http://media.ca8.uscourts.gov/opndir/15/03/133597P.pdf