Following on the heels of Castro-Tum, the Attorney General has issued another ruling that erodes the judicial independence of our immigration judiciary and further mechanizes the courtroom into an assembly line. In Matter of L-A-B-R, 27 I & N Dec. 405 (A.G. 2018), AG Sessions ruled that continuances may only be granted for “good cause.” Instead of allowing judges to exercise their own discretion, the ruling constrains them to push cases forward, prioritizing administrative efficiency over due process and substantive relief.
When determining whether to grant a continuance for a collateral proceeding, the courts must now engage in a multifactor balancing analysis. Judges must primarily consider the likelihood that collateral relief will be granted and whether the collateral relief will materially affect the outcome of the removal proceedings. Additional, secondary factors that also need to be assessed include whether the respondent exercised reasonable diligence in pursuing the relief; the government’s position, ie., whether the immigration prosecutor is opposing a continuance; the length of the requested continuance; and the procedural history of the case. Furthermore, the judge must “remain mindful” of the alien’s burden of demonstrating good cause.
Taken together with Castro-Tum, this decision will deprive many individuals of potential relief by foreclosing their ability to pursue collateral applications outside of court that would grant them status. By circumscribing judges’ authority to grant continuances and administratively close cases, the pair of rulings handicap the tribunal-the arbiter presumably in the best position to determine what is appropriate. It will undoubtedly exert a chilling effect on the bench: something as simple as a continuance will now invite scrutiny and disapprobation, especially considering that the government will invariably object to any postponement. With all this pressure to push cases to conclusion, many respondents will inevitably suffer on account of government delays beyond their control. Unlike EOIR, USCIS has no such mandate to process cases quickly. To illustrate, there are some types of cases that used to take four months to process from beginning to end; these same cases are now projected to take up to two years.
Practically speaking, it may be considerably harder now for individuals to seek continuances for pending I-130s, I-485s, I-360s, I-751s, and N-400 applications, to name a few. Just how these new constraints will affect an already strained and overburdened docket remain to be seen, but the outlook does not appear favorable given the direction things appear to be going.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.