The Board of Immigration Appeals has issued an important decision on the issue of when a continuance should be granted by an Immigration Judge when an alien is in removal proceedings but who has a pending family-based visa petition ( an I-130 ) that makes him or her prima facie eligible to adjust his or her status to permanent residency. The case is Matter of Ajmal Hussain Shah Hashmi and the case was decided on April 22, 2009.
The BIA held that when an alien has an unopposed motion to continue removal proceedings because he or she is waiting for the USCIS to decide a pending family-based visa petition, the continuance should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status.
The BIA outlined the factors for an Immigration Judge to consider when determining whether good cause exists to continue the removal proceedings, including: the USCIS position on the continuance request; whether the underlying visa petition is prima facie approvable; whether the alien is statutory eligibility for adjustment of status; whether the alien’s application for adjustment merits a favorable exercise of discretion; and the reason for the continuance request.
In this case, the alien was placed in removal proceedings but he claimed relief based on his marriage to a U.S. citizen and his pending I-130. He was granted four continuance requests by the IJ while waiting for the USCIS to decide his I-130. However, the IJ denied his fifth continuance request because, he said, was expected to complete cases in a
reasonable period of time by meeting certain “case completion goals” set by
the Department of Justice.
The alien appealed and the Third Circuit Court of Appeals held that the IJ’s denial of the alien’s fifth continuance request was arbitrary and an abuse of discretion because it was based solely on case-completion goals. The Court remanded the case back to the BIA.
Keep in mind that a family-based adjustment of status application involves two basic steps . First, the U.S. citizen or lawful permanent resident petitioner files an I-130 on behalf of his or her qualifying family member, who is the beneficiary of the visa petition. Once the I-130 is approved and an immigrant visa is immediately available, the alien may apply for adjustment of status. The problem is that if an alien is in removal proceedings while waiting for the I-130 to be approved, it may take a very long time for the approval to come through—too long for the IJ’s patience and it is the IJ who has the discretion to either grant or deny a request to continue removal proceedings.
The BIA ruled that discretion should be favorably exercised (and the continuance request granted) where a prima facie approvable visa petition and adjustment application have been submitted during removal proceedings. The ruling makes a lot of sense given the significant interest at stake—the chance to acquire lawful permanent resident status and not to be removed from the U.S. and separated from family while waiting for the USCIS to make a decision on an I-130.
The BIA then laid out the factors for an IJ to consider. Again, those factors are
(1) the DHS response to the motion; (2) whether the underlying visa petition
is prima facie approvable; (3) the respondent’s statutory eligibility for
adjustment of status; (4) whether the respondent’s application for adjustment
merits a favorable exercise of discretion; and (5) the reason for the continuance
and other procedural factors.
These factors are illustrative, not exhaustive and the BIA was even more specific about what an alien should actually submit to an Immigration Judge to assist the Judge in, hopefully, granting a continuance grant.
One thing is for sure—an Immigration Judge may not consider compliance with his or her case completion goals as a proper factor in deciding a continuance request.
