A Motion for a Continuance is Based on
The Immigration Judge must at least consider the following factors in determining whether good cause exists for a continuance pending adjudication of a family-based visa petition:
- the Department of Homeland Security ("DHS") response to the motion;
- whether the visa petition is prima facie approvable;
- statutory eligibility for adjustment of status;
- whether an adjustment of status application would merit a favorable exercise of discretion; and
- the reasons for the continuance and other procedural factors.
See Matter of Hashmi , 24 I&N Dec. 785 (BIA 2009).
The facts in Matter of Hashmi, relate to a motion for continuance or adjournment under 8 C.F.R. § 1240.6 (2008).
Specifically, the respondent (i.e. a person who is the subject of immigration proceedings) had moved for a continuance based on a pending visa petition under consideration by the DHS. The DHS had opposed the continuance. The Immigration Judge had denied the continuance, and the respondent had appealed.
The BIA noted in Matter of Hashmi, 24 I&N Dec. 785, at 791 that the DHS's "unsupported opposition" to a continuance "does not carry much weight."
The BIA also noted that:
In appropriate circumstances, such as where there is a pending prima facie approvable visa petition, we urge the DHS to consider agreeing to administrative closure of the case. See generally Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996) (stating that administrative closure is used to temporarily remove the case from the court's docket and that a case may not be administratively closed if opposed by either party). Administrative closure is an attractive option in these situations, as it will assist in ensuring that only those cases that are likely to be resolved are before the Immigration Judge. This will avoid the repeated rescheduling of a case that is clearly not ready to be concluded. Notably, either party can move to have the case recalendared once the visa petition has been adjudicated or some other factor has arisen indicating that the case is ready for a hearing. Id.
See Matter of Hashmi , 24 I&N Dec. 785, at 791, n.4.
Remember that administrative closure is a preferred means of postponement, from the respondent's perspective. If the matter is administratively closed there is no need to be concerned about the next hearing until the matter is ripe for a final decision.
The factors identified in Matter of Hashmi are not exclusive. For example, the Immigration Judge can also consider the respondent's lack of diligence; concerns of administrative efficiency, such as the speculative or indefinite nature of the continuance request; and uncertainty as to when and if a visa will become available. See Matter of L-A-B-R- et al., 27 I&N Dec. 405 (A.G. 2018); Matter of Mayen-Vinalay, 27 I&N Dec. 755 (BIA 2020).
A motion for continuance should be made in writing if possible. According to the Immigration Court Practice Manual:
A request for a continuance of any hearing should be made by written motion. Oral motions to continue are discouraged. The motion should set forth in detail the reasons for the request and, if appropriate, should be supported by evidence. . . . It should also include the date and time of the hearing, as well as preferred dates that the party is available to re-schedule the hearing.
See Immigration Court Practice Manual Chapter 5.10 (a) (Other motions).
It is not a good practice to appear at a hearing for which a continuance is sought, even with a written motion in hand, and then request a continuance.
The Immigration Judge set aside time that is considered precious (at least from the perspective of the Immigration Judge) to conduct a hearing. Last minute requests will certainly be frowned upon. Another matter could have been scheduled if the motion had been filed ahead of time.
In fact, motions for continuance must comply with deadlines and requirements that govern all motions. See Immigration Court Practice Manual Chapter 3.1(b). If a submission is untimely, it will not be considered, unless a motion to accept an untimely filing is granted. See Immigration Court Practice Manual Chapter 3.1(d)(ii) and (iii). Typically, motions relating to a master calendar hearing (i.e. a preliminary hearing as opposed to a final hearing) concerning non-detained aliens must be filed at least 15 days in advance of the hearing. Motions relating to hearings other than master calendar hearings will typically be due 30 days in advance of the scheduled hearing. Of course, Immigration Judges can set specific atypical deadlines.
Finally, practitioners should keep in mind that the DHS maintains only one file for each individual respondent in removal proceedings. If a visa petition has been filed that requires action by Citizenship and Immigration Services ("CIS") the file relating to the respondent will physically be in the CIS office. Not only does the CIS physically transfer the file to Immigration and Customs Enforcement ("ICE") for use at a scheduled hearing, but ordinarily when a motion is filed that requires review or action by the ICE attorney the respondent's file will be physically transferred to ICE. When ICE is done with the file, the file will be physically returned to CIS to resume conducting its business with the file.
Often, the consequence of transferring the respondent's file back and forth between CIS and ICE is delay in the adjudication of the visa petition or application pending before CIS.
Thus, too much motion activity or other activity involving ICE can be counterproductive, regardless of how well researched and eloquent the motion might be. Of course, sometimes filing a motion is necessary. Just be aware of the potential trade off.
The government will be around long after the present generation has turned to dust. Consequently, the government does not share the same time constraints with individuals who must conduct business with it.
Source: https://zimmersbooks.pubsitepro.com/blog/motion-for-continuance-based-on-a-pending-visa-petition
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