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Making The Law Up As He Goes: Sessions Refers Another Case to Himself, This Time On Motions For Continuance

Attorney General Jeff Sessions has yet again referred an immigration case to himself for review in Matter of L-A-B-R- et al, 27 I&N Dec. 245 (AG 2018). This time, AG Sessions asks:

An Immigration Judge is authorized to “grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29 (2017); see also id. § 1240.6 (2017) (authorizing an Immigration Judge to “grant a reasonable adjournment either at his or her own instance or, for good cause shown, upon application”). In these cases, Immigration Judges granted continuances to provide time for respondents to seek adjudications of collateral matters from other authorities. Under what circumstances does “good cause” exist for an Immigration Judge to grant a continuance for a collateral matter to be adjudicated?

As noted, 8 C.F.R. § 1003.29 empowers Immigration Judges (IJs) to grant motions for continuance “for good caution shown.” 8 C.F.R. § 1240.6, by contrast, allows IJs to grant reasonable adjournments either at their discretion, or “for good cause” upon request by one of the parties. Typically, these motions are filed by either the Respondent or the Department of Homeland Security (DHS) for a number of reasons. For example, the Respondent may motion for a continuance when they are awaiting adjudication of a case outside of Immigration Court, such as a pending I-130 or I-140 petition with USCIS or even an outside criminal or family law case that has bearing on the removal proceedings. Similarly, the government attorney for DHS may motion for a continuance when the attorney has an unexpected emergency, time conflict with the hearing date, or simply needs more time to prepare.

The BIA has sensibly addressed motions for continuance in several cases authorizing IJs to grant them when there is when there was a pending immigrant petition with the USCIS. In Matter of Hashimi, 24 I&N Dec. 785 (BIA 2009), for example, the IJ granted the respondent four continuances on his removal proceedings to allow for USCIS to adjudicate his family-based immigrant visa petition. The IJ denied the respondent’s fifth motion to continue because he was expected to meet the Department of Justice’s “case completion goals,” which required completing cases within a reasonable period of time. The Third Circuit determined that the IJ’s denial based on case-completion goals was arbitrary and an abuse of discretion. On remand, the BIA discussed relevant factors when “determining whether respondent should be allowed to continue ongoing removal proceedings pending the final adjudication of an I-130” filed concurrently with an adjustment of status application, given the conflicting needs of finality of removal proceedings and allowing the opportunity for respondent to apply for relief. Citing to Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), the BIA stated that although the IJ should exercise favorable discretion when there is prima facie eligibility for a visa petition, this does not require that a continuance be granted in every case. The BIA held that in determining whether to continue proceedings where there is a pending visa petition, the IJ should consider a variety of factors, including, but not limited to: (1) the DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors. The focus is the apparent ultimate likelihood of success on the adjustment application. The IJ needs some basis to examine the viability of the underlying visa petition, the respondent’s statutory eligibility for adjustment, and the merits of the adjustment application. This may require the respondent to submit evidence, such as the visa petition, the adjustment application, any prior visa petitions denials, and any other supporting documentation. The BIA sustained the respondent’s appeal and remanded the record to the Immigration Judge to consider the factors and determine whether a continuance was warranted.

In Matter of Rajah, 25 I&N Dec. 127 (BIA 2009), the respondent was placed in removal proceedings after his employer filed for labor certification on his behalf. Over the period of 18 months, the respondent was granted 10 continuances for a variety of reasons, including to obtain counsel and prepare the case and to determine the status of the labor certification. The IJ denied the final motion to continue based on the pending labor certification because he “concluded that the respondent had had ‘sufficient time’ to obtain an approved labor certification.” While the matter was pending before the Second Circuit, the labor certification was approved but then later expired due to the respondent’s employer not filing a visa petition. On remand, the issue before the BIA was to provide a “reasoned set of standards explicating when continuances for labor certification are within the ‘range of permissible decisions’ available to an [IJ], and when they are not.” Id. at 129. The BIA held that as a general rule in the employment context, discretion in granting a motion to continue ongoing removal proceedings should be favorably exercised where there is a prima facie approvable visa petition and adjustment application. Furthermore, in determining whether good cause exists for a continuance in removal proceedings to await the adjudication of a pending employment-based visa petition or labor certification, an “Immigration Judge should first determine the alien’s place in the adjustment of status process and then consider and balance” the factors identified in Matter of Hashmi and any other relevant considerations. For example, a labor certification no longer being valid, and other similar types of evidence, might affect the case on remand or in the context of a motion to reopen. Furthermore, the BIA held that the pendency of a labor certification generally is not sufficient to grant a continuance in the absence of additional persuasive factors. Here, the BIA determined that remand was not warranted based on the new evidence that the labor certification, which was approved, had expired and there was no pending visa petition. While the respondent was a grandfathered alien who could have potentially been eligible for INA § 245(i) treatment, because there was no pending labor certification, the respondent could not establish prima facie eligibility for adjustment of status under INA § 245(i)(2)(A)-(B). The appeal was dismissed.

In Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), an IJ repeatedly continued a removal hearing pending the filing and adjudication of a family-based immigrant visa petition. During the final hearing, despite DHS’s opposition, the IJ granted the respondent’s motion to administrative closure, and the DHS filed an interlocutory appeal. The issue here was whether an IJ or the BIA has the authority to administratively close a case when one of the parties to the proceeding opposes. The BIA determined that there was fault in the general rule stated in Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996) that “a case may not be administratively closed if opposed by either party.” The BIA, in overruling Matter of Gutierrez, held that affording absolute deference to a party’s objection is improper and that the IJ or the BIA, in the exercise of independent judgement and discretion, has the authority to administratively close a case, regardless of party opposition, if it is otherwise appropriate under the circumstances. The BIA further held that when evaluating a request for administrative closure, the IJ should weigh all relevant factors presented in the case, including, but not limited to: (1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the IJ or the appeal is reinstated before the Board. In Avetisyan’s case, the visa petition had been pending for a long time through no apparent fault of the respondent or her husband, and there was no obvious impediment to the approval of the visa petition or ability of the respondent to successfully apply for adjustment of status. The BIA determined that the circumstances supported the exercise of the IJ’s authority to administratively close the case.

In Matter of Castro-Tum, 27 I&N Dec. 187 (A.G. 2018), AG Sessions referred Avetisyan to himself questioning whether there was any authority for IJs or the BIA to administratively close cases. Even if AG Sessions was able to overrule Ayetisyan and deny IJs the ability to administratively close cases, it was hoped that their ability to grant continuances would not be undermined. After all, there is explicit authority pursuant to 8 C.F.R. § 1003.29 for an IJ to grant a continuance for good cause. Depriving an IJ that ability, especially when there is an application pending that would allow the respondent to obtain permanent residency and moot the removal proceeding, would lead to a complete and total evisceration of Ayetisyan. Sessions can only achieve this if the basis to continue proceedings under Hashmi and Rajah are also overturned.

It is clear AG Session seeks to discourage motions for continuance as a way to maximize the deportations of noncitizens even if they have a meritorious pending applications for permanent residency that would otherwise thwart their deportations. In the Department of Justice’s Backgrounder on EOIR Strategic Caseload Reduction Plan, for example, Sessions blames IJs’ low productivity levels and rising backlogs on “representatives of illegal aliens have purposely used tactics designed to delay the adjudication of their clients’ cases” such as motions for continuance. Moreover, in the July 2017 EOIR Operating Policies and Procedures Memorandum 17-01: Continuances, IJs were urged to limit the grant of continuances, stating that “the delays caused by granting multiple and lengthy continuances, when multiplied across the entire immigration court system, exacerbate already crowded immigration dockets.”

But limiting continuances in the name of efficiency is a smokescreen. Discouraging motions for continuances will not make delays go away in the immigration court system. Respondents will appeal the denial of continuances into the courts of appeal of each circuit, which will result in remands back to the immigration courts in addition to clogging the circuits. This used to be the case prior to Hashmi and Rajah, where remands from the circuit court resulted in the further clogging up of immigration dockets. Moreover, if the USCIS processes cases in a tardy manner, and respondents in removal are unable to legitimately seek a continuance, there will be an increasing number of mandamus lawsuits against the agency to compel USCIS to process the case more expeditiously. The BIA’s reasoning in Hashmi, Rajah and Avetisyan was based on common sense and fairness. If there was a reasonable basis for a respondents in removal proceeding to demonstrate that they would ultimately get permanent residency but for a delay in processing of the visa petition or the priority date not being current, why deprive respondents of permanent residency by deporting them?  The federal courts understood this too, and will continue to do so if we do so if respondents cannot get continuances for good cause in removal proceedings.

Thus, in Subhan v. Ashcroft, 383 F.3d 591 (2004), the Seventh Circuit found that an IJ had abused his discretion when the ground for the continuance was a pending labor certification.  The Court noted that the IJ’s denial was based simply on the fact that the labor authorities had not yet acted rather than issues particularized to the petitioner’s circumstances such as the lack of bona fides of the labor certification or other grounds pertaining to national security or criminal issues. In another Seventh Circuit decision, Ahmed v. Gonzales, 467 F.3d 669 (2006), the court went even further than Subhan in holding that the IJ’s denial of a continuance ignored the fact that the petitioner was the “grandfathered” beneficiary under INA 245(i) of an I-130 petition even though the petitioner had yet to have a labor certification filed on his behalf. Of course, some courts upheld an IJ’s decision to deny continuance if the respondent’s underlying applications were not meritorious, see e.g. Morgan v. Gonzales, 445 F.3d 549 (2006), but the frameworks established in Hashmi and Rajah for providing for a continuance based on the merits of the underlying applications for permanent residence are sound and should not be upset. They provide IJs with discretion to grant continuances, and at the same time, authorize IJs to deny continuances when the pending request for permanent residency lacks merit.

There is no need for Sessions to undermine a framework that is working, and also less need to further erode the independence of IJs to judiciously exercise discretion based on their own sense of fairness and efficiency. Decisions to not grant continuances of IJs have been upheld by federal courts post-Hashmi and Rajah when the priority date was a long way away or when an I-601 waiver supporting an adjustment was denied and its appeal was pending. See e.g. Luevano v. Holder, 660 F.3d 1207 (2011); Kwak v. Holder, 607 F.3d 1140 (2010). On the other hand, IJs’ decisions that did not follow the Hashmi and Rajah factors have been overturned. See e.g., Ferrera v. AG, No. 11-14074 (11th Cir. 2013); Simon v. Holder, 654 F.3d 440 (2011). This is clear evidence that the system is working and does not need Sessions’ interference.  Avetisyan along with Hashmi and Rajah also view the immigration system as a whole with all its warts and imperfections. These decisions take into account the inefficiencies resulting in delays of approving I-130s and I-140s, along with retrogression in priority dates. If the immigration system worked more efficiently, there would be less need to place people in removal proceedings. But if people are placed in removal proceedings as a result of these inefficiencies, why not continue their proceedings, or even temporarily close their proceedings, until such time that they can obtain the benefit and terminate proceedings – which should not have been started in the first place? If Sessions is unable to see it this way when he reconsiders BIA decisions to undermine Avetisyan, Hashmi and Rajah, he is not doing so to create efficiency but to further his animus and hostility against immigrants.

(The authors thank Eleyteria Diakopoulous for her assistance in providing research for this article. Ms. Diakopoulous is a student at Brooklyn Law School and is presently an Extern at Cyrus D. Mehta & Partners PLLC)

Musings On Our Asylum System – After AG Sessions’ Remarks on ‘Dirty Immigration Lawyers’

Attorney General Sessions who has been hostile towards increased immigration and views the asylum system as a loophole for unauthorized entry into the US said in recent remarks that “over the years, smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.”  He got even more animated as he went on his diatribe about how the credible fear interview process is being gamed by those who would otherwise be expeditious removed.  “We also have dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to clients to make false claims to asylum providing them with the magic words needed to trigger the credible fear process,” he said.

Sure enough, there have been a few lawyers who have filed fraudulent asylum claims and have deservedly faced punishment through criminal convictions. However, the vast majority of these supposedly dirty immigration lawyers are some of the finest people I have known who work with passion to ensure due process, fairness and justice.  Mr. Sessions was appropriately rebuked by AILA President Annaluisa Padilla who said,  “Attorney General Sessions chose today to deride the American asylum system, the vulnerable populations who seek safety here, and the immigration attorneys who work tirelessly to ensure due process is afforded to everyone,”

The law surrounding political asylum is extremely complex, and one who fears persecution needs competent representation – and a lot of representation in the asylum arena is pro bono. An asylum applicant’s chances improve exponentially when he or she is represented by a good lawyer. Indeed, Judge Katzmann who spearheaded a study in 2010, and who is today the chief judge of the Court of Appeals of the Second Circuit, found that detained immigrants with attorneys were 500 percent more likely to win their cases than those without.  Judge Katzmann is more on the mark than Mr. Sessions. Representing asylum applicants with bona fide claims is one of the most honorable things that a lawyer can do. It is part of the ethical duty of a “dirty lawyer” to establish that the client has a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group or political opinion. This is especially true when the government is always represented by skilled counsel, and in order to level the playing field, an applicant also deserves equally skilled representation.

Mr. Sessions seemed to aim his ire against lawyers who attempt to broaden  asylum based on theories under the membership in a particular social group ground. Establishing that an applicant belongs to a social group is a legal minefield, and even if the persecution is based on the applicant being a family member of the one who is targeted, more has to be demonstrated in order to qualify for asylum. A case in point in the Board of Immigration Appeals recent decision in Matter of L-E-A, 27 I&N Dec. 40 (BIA 2017). Although persecution on account of membership is a family has been recognized as a basis for asylum, the BIA in Matter of L-E-A explicitly confirms this but also requires a nexus and further holds that applicants whose claims are based on membership in a particular social group composed of family members must “demonstrate that the family relationship is at least one central reason for the claimed harm to establish eligibility for asylum on that basis.” Id. at 40. As the BIA explains, “[i]f the persecutor would have treated the applicant the same if the protected characteristic of the family did not exist, then the applicant has not established a claim on this ground.” Id. at 43-44.

In L-E-A the respondent was a native and citizen of Mexico whose father owned a store in Mexico City that sold groceries and general merchandise. Members of a drug cartel approached the respondent’s father to ask if they could sell drugs in the store as they viewed it as a favorable distribution location. The respondent’s father refused. The members of the drug cartel approached respondent to see whether he would sell drugs for them at his father’s store. Upon respondent also refusing, the members of the cartel tried to grab him and put him in their car, but he was able to get away. The respondent left for the border and successfully crossed into the United States.

The BIA in L-E-A acknowledged that members of an immediate family may constitute a social group. There is a long line of cases that have suggested this, but L-E-A held so explicitly. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011); Al-Ghorbani v. Holder, 585 F.3d 980 (6th Cir. 2009); Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008). The BIA has previously “explained that ‘persecution on account of membership in a particular social group’ refers to ‘persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic . . . such as . . .  kinship ties.” Matter of C-A-, 23 I. & N. Dec. 951, 955 (BIA 2006) (quoting Matter of Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985)). “It has been said that a group of family members constitutes the ‘prototypical example’ of a particular social group.” INS, Asylum Officer Basic Training Course: Eligibility Part III: Nexus 21 (Nov. 30, 2001) (quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)). “There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.” Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993).

The BIA could have concluded at this point, but then went onto state that there must also be a showing of nexus. In other words, a persecution claim cannot be established if there is no proof that the applicant or other members of the family were targeted because of that family relationship. If the persecutor would have treated the applicant the same if the protected characteristic of the family did not exist, then the applicant has not established asylum on this ground. The BIA provided an example of clear nexus based on family membership where the persecutor is seeking to harm the family members because of an animus against the family itself. An example given was the assignation of Czar Nicholas II, his wife and their five children after he abdicated the throne in 1917. This, according to the BIA, was a classic example, of the persecution based on family membership as one of the central reasons for the persecution.

Unfortunately, despite affirming that family was a social group, it did not work out favorably for the respondent in L-E-A. The BIA held that even if the persecutor harmed the respondent, but if it was done so as a means to an end, that in itself was insufficient to establish a claim, especially if the end is not connected to another protected ground. In L-E-A, according to the BIA, the cartel’s objective was to sell drugs in the store owned by his father, which is why they approached the respondent and harmed him. The central reason for the persecutor to harm the respondent was because the cartel wanted to increase profits by selling drugs in the store and there was no evidence to indicate that the persecutors had any animus against the family. The cartel would have gone after any family who owned a business there.

Jeffrey Chase , an astute blogger on asylum law, observed that the BIA missed an opportunity in L-E-A to simply affirm that showing persecution based on family was a sufficient nexus in itself. There was no need to also include a “means to an end” requirement. “Under the fact patterns we commonly see from Mexico and the “northern triangle” countries of Central America, claims based on family as a particular social group will continue to be denied, as such fears will inevitably be deemed to be a means to some criminal motive of gangs and cartels (i.e. to obtain money through extortion or as ransom; to increase their ranks; to avoid arrest) as opposed to a desire to punish the family itself.”

Mr. Sessions would also cynically welcome the outcome in L-E-A, although he would have been probably happier if the BIA had not acknowledged family as a social group!  L-E-A provides an ability for the adjudicator to deny asylum claims based on family under a means to an end analysis, especially those fleeing Central America based on gang based violence. The Trump administration, consistent with Mr. Session’s remarks, has proposed restricting asylum claims of young people from Central America in exchange  for preserving DACA, in addition to many other onerous demands. In any event, the lawyer representing the asylum applicant has an ethical obligation to convincingly demonstrate that the family relationship was the central reason for the persecution. That could have been the outcome in L-E-A too, as it was reasonable to infer that the cartel went after the respondent because his father owned the store, but the lawyer must now take pains to distinguish the facts of her case from L-E-A. Indeed, the lawyer must show like in the case of the Romanovs after the Russian revolution that there was an animus against the family that caused the persecution. 

Contrary to Mr. Session’s assertion, there is a great need for an ethical lawyer to advance the best possible argument on behalf of his client in the hope that the law could change that would be consistent with the definition of social group in the 1951 Refugee Convention and the 1967 Protocol. The term “particular social group” was added as an afterthought and was considered to be of broader application than the combined notions of racial, ethnic, and religious groups and that in order to stop a possible gap in the coverage of the U.N. Convention, this ground was added to the definition of a refugee. See Matter of Acosta, supra. Consistent with this view, the BIA in Matter of Acosta interpreted the phrase “persecution on account of membership in a particular social group” to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. Over the years, the Acosta definition of “immutable characteristic” has been qualified to also require that the group is “defined with particularity” and is “socially distinct.”  See Matter of M-E-V-G, 26 I&N Dec. 227 (BIA 2014) (“Society can consider persons to comprise a group without being able to identify the group’s members on sight”) and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014). Even then, some Circuit courts have rejected this new definition.

If Mr. Sessions was not so blinded by his animus against asylum seekers, he may appreciate the lawyer’s role in interpreting and advancing the definition of a social group to protect people fearing persecution if they are unable to establish a nexus on account of race, religion, nationality or political opinion.  The challenge has become even greater after the Acosta definition was limited by also requiring that the social group is defined with particularity and is socially distinct.  This includes those who were unable to seek protection in their countries if they suffered domestic violence or because of their sexual orientation. The lawyers that Mr. Sessions derides are not exploiting loopholes but protecting people from harm, unjust imprisonment or death. If this is what Mr. Sessions means by a dirty immigration lawyer, then lawyers endeavoring to broaden protections for vulnerable people under our asylum system ought to feel extremely proud.