No Continuance for Prospect of Immigration Reform
An immigration judge may grant a motion for continuance for “good cause shown.”
This week, the First Circuit Court of Appeals clarified that the possibility of legislation that would alter existing immigration laws does not qualify as “good cause shown.”
Muhammad Sheikh entered the United States in April 2001 on a nonimmigrant visitor's visa. The visa expired six months later, yet Sheikh remained in the United States. In the spring of 2003, the government served him with a notice to appear and initiated removal proceedings against him.
After almost seven years of legal wrangling, Sheikh conceded that he was ineligible to adjust his immigrant status, and requested a six-month continuance to await the passage of comprehensive immigration reform that would render him eligible for status adjustment. The IJ denied his request.
The BIA has outlined specific standards as to what constitutes "good cause" when an alien requests a continuance to await a pending visa application and status adjustment. These include:
- The government's response to the motion
- Whether the underlying visa petition is prima facie approvable
- The alien's statutory eligibility for adjustment of status
- Whether the ... application for adjustment merits a favorable exercise of discretion
- The reason for the continuance and other procedural matters.
The focus of the BIA's inquiry is the likelihood that the adjustment application will be granted.
The First Circuit noted that its sister circuits have repeatedly held that, where eligibility for status adjustment rests on speculative events, the BIA may properly deny the continuance.
Sheikh's request was similarly based on speculation, except in Sheikh's case the speculation is three-fold: whether Congress will pass immigration legislation, whether such action will occur in the near future, and whether this hypothetical legislation will allow Sheikh to remain in the United States.
The Eighth Circuit reached a similar conclusion in Hernandez v. Holder, upholding the BIA's denial of a continuance to await proposed rulemaking. The court found that "in light of the uncertainty as to when the long-pending ... regulation will be promulgated, [petitioner was] essentially seeking an indefinite continuance."
While asking a court for a continuance pending comprehensive immigration reform may be creative, federal courts are not obligated to entertain such requests.