In an interesting decision out of the First Circuit, Sheikh vs. Holder, the Court of Appeals recently ruled that it was not an abuse of discretion for an Immigration Judge to deny a six-month continuance to the Respondent to wait for the passage of comprehensive immigration reform that would allow him to possibly adjust status. In this particular case, the Respondent, Mr. Sheikh acknowledged that while he was not eligible to adjust his status based upon an approved I-140, and that he had no other pending applications, he argued that the Judge committed reversible error by failing to grant his request for a postponement, so that “a change in immigration law would inure to his benefit.” The BIA affirmed the Judge’s decision, and eventually the case made its way up to the Court of Appeals. The case is an interesting read because it reviews the standard for continuances as laid out in Matter of Hashmi, 24 I&N Dec. 785 (2009), considerations of which include:1) the [government’s] response to the motion; 2) whether the underlying visa petition is prima facie approvable; 3) the [alien’s] statutory eligibility for adjustment of status; 4) whether the . . . application for adjustment merits a favorable exercise of discretion; and 5) the reason for the continuance and other procedural matters.The essence of Hashmi was to keep the door open for cases where adjustments were likely to be granted, but still a ways off. In Mr Sheik’s case, adjustment was never really an option, only an illusory one premised on comprehensive immigration reform, which unfortunately is not justification enough to keep a case pending when there is no other relief.
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