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“Continuances” in Immigration Court and Fairness

gavelReaders of this space know that the practice of immigration law has always presented my colleagues and I with unique and interesting challenges. Over the last three years, however, I would describe most of the challenges practitioners encounter as completely unnecessary. Let me give you an example.

A prospective client walks through my door, tells me her story, and to keep it short and simple, I determine that she’s out of status, has a prior removal order, but if those things weren’t true, she would be able to stay in the United States because she has some other relief that could be available to her (e.g., she originally had a lawful entry and she’s married to a U.S. citizen), but for the previously stated adverse factors.

Generally our advice to this individual might be, let’s get the paperwork prepared and filed for the “relief” that we think you’re eligible for with, e.g., U.S. Citizenship and Immigration Services (“USCIS”) (but for the adverse factors), and then let’s go to the Immigration Court, ask the Immigration Judge (“IJ”) to reopen her prior removal order (for whatever reasons we can come up with, including, possibly, the fact that our prospective client has relief available to her, again but for the adverse factors), and assuming the IJ did reopen the case, then ask the IJ for a continuance (and to place our client’s matter on the Court’s “status docket”) in the Immigration Court proceeding so we can wait for what we think will be a favorable decision by USCIS.

Yesterday (as I write this, it was just yesterday), that last part became unnecessarily more difficult. In a decision by the Board of Immigration Appeals (“BIA”) issued on January 22, 2020, the BIA held as follows:

In assessing whether to grant an alien’s request for a continuance regarding an application for collateral relief, the alien’s prima facie eligibility for relief and whether it will materially affect the outcome of proceedings are not dispositive, especially where other factors—including the uncertainty as to when the relief will be approved or become available—weigh against granting a continuance.”

Matter of Mayen, 27 I&N Dec. 755 (BIA 2020) (Emphasis added.)

This impacts foreign nationals in many kinds of situations. The example I gave is just one. Here’s another, and no doubt more compelling. Sadly sometimes the prospective client that shows up at your office has been the victim of a crime, such that this individual might be eligible for a “U” nonimmigrant visa. U visas provide temporary and sometimes permanent legal status to victims of an enumerated list of “qualifying criminal activities” who have suffered substantial physical or mental abuse, and possess information concerning that crime, and who have been, are being, or are likely to be helpful to law enforcement or government officials.

There are many “qualifying criminal activities” including domestic violence and sexual assault. Here’s the problem. Let’s say my prospective client has a very compelling case to receive a U visa. The problem is the adjudication backlog at USCIS. Right now, the time that it takes for USCIS to process U petitions is more than 4 years, and that assumes that USCIS simply approves (or denies I suppose) your client’s petition. If USCIS sends you a Request for Evidence (“RFE”), which can often be the case, the adjudication time will be substantially longer.

So, back to my prospective client. The quick reaction and consensus of my colleagues and I will be that some or many IJ’s will use the BIA’s decision in Matter of Mayen as a means to unclog their docket. Attorneys will then be forced to unnecessarily appeal adverse decisions of these IJ’s to the BIA, the BIA will likely affirm the IJ’s decision, and then our clients will be forced to appeal further to a U.S. Circuit Court of Appeals and, depending on where the client resides, hopefully get a favorable decision. This is all just so unnecessary.

We can debate, and meaningfully debate at that, all day long as to whether Democrats or Republicans have better policies as it relates to immigration and even immigration reform. What we’re talking about here, though, is about being practical and being fair. IJ’s have the ability to meaningfully assess whether a respondent before them has a prima facie right to obtain relief before USCIS so he or she can lawfully remain here. Assuming this is true, what difference will it make then to the Court if a respondent’s case is put on a separate status docket and the Court checks in with that respondent “periodically” to see how their case with, e.g., USCIS is going? In my view, it makes (or should make) no difference.

Practicing immigration law is very rewarding. And of course it’s challenging too. All fields of law have their challenges. That’s alright. What’s not alright, however, is creating obstacles to lawyers and litigants that are truly unnecessary (and unfair). Let’s solve the underlying problem through meaningful immigration reform. Let’s not punish individuals who would have (more) rights in the United States “but for” delays at USCIS that are not of their own creation. Seems fair to me.

 

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