Written by Melissa Chavin

The US Attorney General Jeffrey Sessions, a proponent of lower undocumented immigrant numbers through deportation and other means, has taken up yet another case from the immigration courts, which sit under the Department of Justice.  Attorney General Sessions heads the DOJ.

An Attempt to Increase Deportations and Clear the Immigration Court Dockets:  Matter of L-A-B-R-

The case Matter of L-A-B-R- et al., 27 I&N Dec. 405 (A.G. 2018), decided on August 16, 2018, is authored by Mr. Sessions, instead of an immigration judge.  It limits the discretion of immigration judges (IJs) to grant a continuance of removal proceedings.  A continuance means that the immigration court proceedings will continue at a later date.  Judges have been able to grant continuances “for good cause shown,” per federal regulation, 8 CFR Sec. 1003.29.  Matter of L-A-B-R- defines the “good cause standard.”  To have good cause, Sessions says, a judge must balance multiple factors when an alien asks for a continuance to pursue relief outside of the court system.  An example of collateral relief would be an approval of an alien relative petition on Form I-130 from the USCIS, which would allow the foreign national to adjust status to legal permanent residence in the courtroom.  Such petitions take about five to seven months to be processed by the USCIS.  Under Sessions's new case law, the court can only grant a continuance if they believe that (1) the collateral petition will be approved and (2) the approval will materially affect the removal proceedings.  Among other named factors that the court should consider are (a) the foreign national’s diligence in seeking the outside solution, (b) what the government attorney in the case’s position is on the request for the continuance, (c) concerns of whether the continuance is causing an undue blockage in the court system overall, and (d) the length of the delay requested. 

Only a Political Move?

Commentators on introducing a policy which ties judges’ hands say that it will not meet Mr. Session's apparent goal of reducing the immigration court backlogs.  “Limiting continuances in the name of efficiency is a smokescreen,” say NY immigration attorneys Cyrus Mehta and Sophia Genovese.[1]  Mehta and Co. note that foreign nationals in proceedings can appeal to the courts of appeal of each circuit in the federal court system, which will result in remands back to the immigration courts.  These appeals could clog the circuit courts and continue the logjam in the immigration courts.  If this is true, then Matter of L-A-B-R- will be just a political move - something that looks like an anti-immigration development, but is not. 

Sessions mentions in Matter of L-A-B-R-, that he feels that the continuance requests are being made abusively.  They extend the time that undocumented aliens can stay in the United States.  In Matter of L-A-B-R-, he states, “Unjustified continuances provide an illegitimate form of de facto relief from removal.”  He implicitly continues his public media theme that immigration lawyers are “dirty” players.

The American Immigration Lawyers Association President Anastasia Tonello reacted in a similar vein to Mehta and Co. criticizing Sessions for hindering “an important case management tool that judges use to ensure cases are resolved fairly and justly."[2]  She explains the current situation, "Every day, people who are eligible for relief must come before the immigration court and request a continuance until U.S. Citizenship and Immigration Services (USCIS) is able to make a decision.”[3]

Arguing for Congress to Create an Truly Independent Court

American Immigration Lawyers Association Executive Director Benjamin Johnson pointed to the case as another example of interference of the executive branch into a court system that seems independently set up, “Matter of L-A-B-R- is yet another reason why Congress must pass legislation establishing the immigration court as an Article I court separate from the Justice Department. Until Congress acts, the Attorney General will continue to encroach upon the independence of the courts, forcing judges to order people removed without a fair process."[4]

If you would like to discuss the specifics of your case and the related consequences of being put into removal proceedings in the United States, please contact Melissa Chavin, Attorney, for a consultation.

[1] Cyrus Mehta & Sophia Genovese, Making The Law Up As He Goes: Sessions Refers Another Case to Himself, This Time On Motions For Continuance, The Insightful Immigration Blog (Mar. 26, 2018) http://blog.cyrusmehta.com/2018/03/making-the-law-up-as-he-goes-sessions-refers-another-case-to-himself-this-time-on-motions-for-continuance.html.

[2] Press Release, Trump Administration Further Undermines Judicial Independence, AILA InfoNet at Doc. No. 18081736 (Aug. 17, 2018).

[3] Id.

[4] Id.