FAIRNESS MAKES A RETURN APPEARANCE IN COURT

By Robert L. Reeves & Nancy E. Miller

In what we would hope will be a portent of things to come, several positive cases  have come down in the last few months from both the Ninth Circuit and the Board of Immigration Appeals (BIA or Board) concerning due process in court proceedings.  These cases will be discussed in this article and the one to follow next week.

In Matter of Hashmi, the BIA held that motions to continue a removal proceeding in order to allow a family-based petition to be adjudicated should generally be granted if it appears that the approval would allow the alien to adjust status.  The BIA stated that there are five factors to be considered in deciding whether to grant the continuance.  They are: (1) whether the Department of Homeland Security (DHS) opposes the motion; (2) whether the family-based petition is approvable on its face; (3) whether the alien is statutorily eligible for adjustment of status; (4) whether the alien appears to be eligible for a favorable exercise of discretion by the Immigration Judge (IJ); and (5) the reason for the continuance and other relevant procedural factors. 
 
The discussion of these factors by the Board was extremely significant.  In discussing the impact of the DHS position, the Board held that if DHS does not oppose, the motion should be granted.  Even if DHS does oppose the motion, that, in and of itself is not sufficient cause to deny it.  The IJ must determine whether the opposition is reasonable and supported by the record. If not, the opposition should be given very little weight.  If the position is reasonable and supported by the record, that becomes one factor to be weighed with the others.

Of equal importance, the BIA specifically stated that IJ compliance with case completion goals is not a proper factor in deciding a continuance request.  Case completion goals are case management guidelines set out by the Office of the Chief Immigration Judge. In Hashmi, the IJ recognized that the case completion goals are not mandatory but nonetheless relied on the goals in denying the motion.  When this case was initially appealed, the Board upheld the IJ’s denial of the motion.  Hashmi filed a petition for review with the Third Circuit which was granted.  The case was then remanded back to the Board for a new decision consistent with it’s order.  It is that second decision that we are discussing here. In the Third Circuit decision, the court held that it was arbitrary and an abuse of discretion for the IJ to deny the unopposed motion for a continuance on the basis of the case completion goals.  This is extremely important because in Hashmi’s case (as is true in many cases) the delay was based on the fact that DHS had not adjudicated the petition.  Hashmi had no control over when and how the petition was to be decided.  It was unfair to penalize him for government inaction. 
 
In a similar case, the Ninth Circuit held, in Ahmed v. Holder, that the IJ had abused her discretion in denying an unopposed motion to continue removal proceedings to allow the Administrative Appeals Office to decide an appeal of a denial of an immigrant visa petition. The court held that there are four factors to be considered in determining whether the denial of a continuance is an abuse of discretion.  They are: (1) the nature of the evidence excluded as a result of the denial of the continuance; (2) the reasonableness of the immigrant’s conduct; (3) the inconvenience to the court; and (4) the number of continuances previously granted.

As with the BIA case discussed above, the discussion of the factors provided extremely significant guidance. In discussing the importance of the evidence excluded, the court held that, by denying the continuance, the IJ had effectively pretermitted Ahmed’s appeal.  That means, the IJ had essentially made the appeal meaningless.  The court further held that the need for a continuance was not based on any unreasonable conduct on Ahmed’s part.  Indeed, it was the government whose actions were needed to complete the process.  With regard to the third factor, the court issued a stern warning against “a myopic insistence upon expeditiousness” stating that “an immigrant’s right to have his or her case heard should not be sacrificed because of the immigration judge’s heavy caseload.”  A need to clear a heavy calendar or to meet compliance deadlines is insufficient reason to deny a motion to continue. 

The court held that no one factor is dispositive.  The IJ is required to weigh them all  in reaching a decision. 
 
The court made one other important holding in this case.  It held that the alien is not required to show prima facie eligibility for adjustment of status to demonstrate good cause for a continuance.  This was important because, during the time the case was pending, the visa numbers had retrogressed (gone backwards) and were not immediately available to him.  Without specifically saying so, the court implied that, if the visa numbers had been available at the time the adjustment application was filed, the court should wait until they are again available before going forward with the case.

Each of these cases discusses important rights of immigrants in court proceedings.  The positions of the Board and the court are not identical.  The differences may be more significant in some cases than in others.  An experienced immigration attorney can determine the impact of these decisions.  This is one reason why it is important to have competent representation in immigration court.