AG Sessions Decision Limiting Continuances (Postponements) in Immigration Court Could Dash Hopes of Immigrants in Line for Green Card

AG's decision in Matter of L-A-B-R- holds that an immigration judge must show “good cause” to grant a postponement of removal proceedings for relief not immediately available.

** LEGAL UPDATE **

On August 16, 2018, Attorney General Jeff Sessions issued a decision in the case Matter of L-A-B-R- that will restrict the ability of people in removal (deportation) proceedings to postpone their cases in order to wait for a green card to become available to them. Matter of L-A-B-R- is the latest in a series of decisions by Sessions that make it more difficult for those put into removal proceedings to obtain legal status in the United States.

Noncitizens in removal proceedings in the U.S. may pursue various forms of relief including an application for legal permanent residency (a “green card”) if they qualify for an immigrant visa, for example through a U.S. family member. Those with an immediately available immigrant visa (such as immediate relatives of U.S. citizens) can often “adjust” (apply for residency) in immigration court before the immigration judge or have their removal cases terminated to apply for residency before U.S. Citizenship and Immigration Services (USCIS) or the U.S. Department of State at a consulate abroad.

Other non-citizens in removal proceedings might qualify for an immigrant visa, but face the issue that the visa is not immediately available to them because of wait times for various family-, employment-, and humanitarian-based visas. These individuals can (or could) ask the immigration judge to postpone their removal proceedings as they wait for their visa (priority date) to become current so they can then apply for legal permanent residency in the U.S. or aboard and avoid a removal order.

The decision in Matter of L-A-B-R-, however, holds that an immigration judge must show “good cause” to grant a postponement of removal proceedings for relief not immediately available and must assess “(1) the likelihood that the alien will receive the collateral relief, and (2) whether the relief will materially affect the outcome of the removal proceedings.” The decision also states that the judge should consider “whether the alien has exercised reasonable diligence in pursuing that relief, DHS’s position on the motion, the length of the requested continuance, and the procedural history of the case.”

While Matter of L-A-B-R- does not explicitly overrule past decisions governing continuances in immigration court, it states that the granting of continuances contributed significantly to the immigration court backlog, strongly implying that immigration judges should use their power to postpone cases more cautiously than they have in the past.

Each immigration judge will exercise his or her own judgment in how to apply Matter of L-A-B-R-, but many will interpret it as not allowing for continuances for visas that are not immediately available or are not available in a very short period of time.

If you have a pending visa application and are in removal proceedings, you should consult an immigration attorney to determine how this decision could affect your case. People applying for family- and employment-based visas face significant wait times, and people with pending humanitarian visas, such as Special Immigrant Juvenile Status (SIJS) and U visas, should be especially concerned.

Matter of L-A-B-R- also states that continuances should not be granted to apply for an unlawful presence waiver with USCIS. The unlawful presence waiver (I-601A provisional waiver) allows many noncitizens who more than 180 days of unlawful presence in the U.S. to pursue a green card at a consulate abroad without incurring the three- or ten-year ban penalty from reentering the United States.

Following the Attorney General’s decision in another case, Matter of Castro-Tum, immigration judges are no longer able to administratively close removal cases (except in very limited circumstances), an action required to pursue an unlawful presence waiver in the United States. Therefore, for now, only those who are not in removal proceedings will be able to pursue unlawful presence waivers within the United States.

Effective date: August 16, 2018