Pro Bono Practice Alert: Less Time for Due Process in Immigration Courts

On August 16, 2018, Attorney General Jeff Sessions published a decision, Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018), that will likely result in an increase of deportations, particularly for detained and unrepresented individuals. The opinion zeroes in on the standard for granting continuances in immigration courts and urges judges to use a much narrower lens before granting an adjournment.

Some may welcome this development given the clear backlog in immigration courts. However, courts that are quick to deny continuances increase the number of deportations, resulting in the unwarranted banishment of adults and children who have viable means to pursue legal relief in the United States. The Attorney General’s decision effectively chips away at due process for immigrants once again.

Pursuing legal relief in immigration law takes a long time—not because applicants are not eligible or file frivolous applications. Pursuing relief is a demanding and protracted endeavor that frequently involves multiple steps and agencies. For example, immigrants must seek visas in a different agency than the court, but depend on the timely adjudication of this visa in order to terminate their court proceedings. However, the Attorney General urges courts to move as quickly as possible, even though immigrants in bifurcated proceedings cannot control the pace of the agencies involved. Finally, detained immigrants, who are most often unrepresented, are unlikely to gain the time they need to find an attorney or prepare for their fast-paced hearings.

In light of the Attorney General’s opinion, it is crucial for advocates to prepare for every hearing carefully. At issue is what it means for there to be “good cause” in seeking a continuance because one is pursuing collateral relief in a separate agency. The Board of Immigration Appeals provided a multi-factor analysis long-ago in Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009). In L-A-B-R-, the Attorney General revisits those factors and admits that it is “impossible” to account for every factor that bears on the good cause standard, because the inquiry is always case-specific.

However, the Attorney General reinterprets the “good cause” requirement and places a heavier burden on immigrants to justify the need for a continuance. Prior precedent recognized that the government’s delay in adjudicating collateral relief should not prejudice the immigrant in requesting more time. Now, the Attorney General urges Immigration Judges to view every continuance request with a suspicious eye.

Please contact your CAIR Coalition mentor if you have a client for whom you are considering requesting a continuance. We will be happy to support you in assessing how this new case will impact your client.

If you do not represent a detained adult or child, there is no better time to join the fight.