Motion to Continue

REGULATIONS

A continuance may be granted for good cause pursuant to 8 C.F.R. §§ 1003.29, 1003.10(b).

Two regulations authorize continuances in removal cases: 8 C.F.R. § 1003.29, which permits IJs to continue a hearing for good cause shown, and 8 C.F.R. § 1240.6, which permits IJs to grant a “reasonable adjournment at his or her own instance” or for good cause shown by a requesting party. Though the regulations do not provide guidance as to what factors constitute “good cause” for a continuance, the BIA has laid out specific factors that an IJ must consider in evaluating whether “good cause” exists where the respondent is pursuing collateral relief.

CASE LAW

Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018)

Matter of Hashmi, 24 I&N Dec. 785, 790-91 (BIA 2009) (family-based petition)

Matter of Rajah, 25 I&N Dec. 127, 135-36 (BIA 2009) (an employment petition)

Matter of Sanchez Sosa, 25 I&N Dec. 807, 812-13 (BIA 2012) (U visa petition)

Practice Advisory for Matter of L-A-B-R

https://www.cliniclegal.org/resources/removal-proceedings/practice-advisory-matter-l-b-r-27-dec-405-ag-2018

Motion for Continuance Practice Advisory

Matter of L-A-B-R- and continuances to pursue collateral matters On August 16, 2018, Attorney General Sessions issued a decision in Matter of L-A-B-R-, a case addressing when “good cause” exists to grant a continuance for a respondent to pursue a collateral proceeding. The decision does not overturn previous case law establishing a multifactor test for determining “good cause,” but cautions against “unjustified continuances,” describing them as a “significant and recurring problem” and the L-A-B-R- decision as necessary guidance to protect against “abuse” of continuances. L-A-B-R emphasizes the holding in Matter of Hashmi, that an immigration judge should rely primarily on two factors in making a good cause determination:

Two Primary Factors for Continuances:

1) the likelihood the respondent will receive the collateral relief sought, and

2) whether the relief will materially affect the outcome of the removal proceedings.

Other factors to be considered in a decision to grant or deny a motion for continuance include:

1) the respondent’s diligence in seeking collateral relief;
2) DHS’s position on the motion;
3) administrative efficiency;
4) the length of continuance requested;
5) the number of hearings held and continuances granted previously; and
6) the timing of the continuance motion. Though the immigration judge must use discretion in balancing the relevant factors supporting a continuance grant, L-A-B-R states that due diligence may be absent when the respondent intends to pursue collateral relief at a future date or “appears to have unreasonably delayed filing for collateral relief” until just prior to a hearing. If there was a diligent good faith effort to proceed, however, the respondent will meet this prong. In addition, under L-A-B-R- DHS’ decision to consent, oppose or fail to take a position on a continuance motion should not be dispositive. Citing the 2017 EOIR memo, L-A-B-R emphasizes efficiency in the good cause analysis. Immigration judges’ interpretation of this part of the decision will be critical in how L-A-B-R.

See Administrative Closure pursuant to  8 CFR 1003.18 for what is essentially an indefinite continuance.