On July 31, 2017, Chief Immigration Judge MaryBeth Keller issued a memorandum to all immigration judges and immigration court staff “to provide guidance on the fair and efficient handling of motions for continuance in order to assure that adjudicatory inefficiencies do not exacerbate the current backlog of pending cases nor contribute to the denial of justice for respondents and the public.” The impetus behind the memo is the fact that, as mentioned by the Chief Judge, the current backlog of cases in the immigration courts “currently exceeds 600,000.”
When I was appointed an immigration judge in 1995, an expedited system for asylum claims had just begun. Under that system, the INS asylum offices had 60 days to process, interview, and decide an asylum claim from the day the application was received. If the case was not granted, it was referred to the immigration court, which had another 120 days to conduct a master calendar hearing, a full merits hearing, and issue a final decision. Today, it can take two or three years to get an interview from the USCIS asylum office; if the case is not granted at that stage, it can take an additional two or three years to reach a final hearing before an immigration judge.
There has always existed a tension between the Office of the Chief Immigration Judge at EOIR headquarters in Falls Church, VA, and the immigration judges who hear removal cases in the immigration courts. The managers in Falls Church, who have to answer to higher-ups in the Department of Justice, are much more concerned with numbers. The frontline immigration judges are more focused on the individual cases before them. A little over a decade ago, EOIR began to place some of its supervisory judges into the larger immigration courts. This was a very good idea; previously, the assistant chief immigration judges were simply administrators in Falls Church who did not preside over hearings themselves, and would visit the courts once in six months or so. By “embedding” these supervisory judges in the courts themselves, and having them actually on the bench hearing cases, the supervisory judges would be much more aware of the actual issues facing judges then if they were simply reviewing lists of numbers in the central office.
Nevertheless, with the backlog of cases surpassing 600,000, and with immigration in the news and on the radar of politicians, such insight will only go so far. The impetus at present is to try to speed the cases along to conclusion. While the chief judge’s memo states that “the appropriate use of continuances serves to protect due process, which Immigration Judges must safeguard above all,” the clear message to the IJs is to keep the line moving.
From my experience both inside and outside of government, I believe that immigration judges must be given the freedom to grant continuances as they see fit. As the Hon. Dana Leigh Marks, one of the most respected judges in the country and the president of the National Association of Immigration Judges has accurately said, immigration judges “hear death penalty cases in a traffic court setting.” Judges are astute enough to know when continuances are being sought solely as a dilatory tactic, or are otherwise serving to delay justice. But IJs should not be stripped of their ability to continue cases for reasons that can’t always be clearly explained or fit neatly into approved adjournment codes.
For example, the chief judge’s memo mentions that the consideration of delay “is even more salient in cases where the respondent is detained; ” it also discourages continuances of scheduled merits hearings, which “cannot be easily filled by other cases,” and have “a significant ripple effect” across the judge’s calendar. When I was in private practice in the early 1990s, I represented a detained asylum seeker who appeared for his merits hearing before a far from liberal judge, a particularly nasty INS trial attorney, and who further had to overcome a very unfavorable BIA precedent decision. Although his claim was factually similar to many others that he had denied, the judge had a gut sense that my client’s claim was different. The judge suggested continuing the hearing, and somehow convinced the unsympathetic government attorney to send the documents out for consular investigation. Because of a civil war in the client’s home country, the case had to be continued multiple times. Eventually, the consulate responded with a highly favorable investigative report; after grilling my client on cross-examination, the INS attorney (for the only time in my memory) actually agreed to a grant of asylum. Had this happened today, I have no idea how the judge would have explained to his higher-ups in Falls Church why the multiple continuances were warranted in this case, and not in other cases that looked nearly identical on paper. I am sure the taxpayer cost of detaining my client for several additional months, transporting him to court several times for hearings that did not go forward, ordering court interpreters that were not used, and having the consulate send investigators into a war zone were significant. In the end, they added up to actually save a life.
Later, as an immigration judge, I found continuances to be a valuable tool. In one case, after some discussion, I decided to continue a case involving an asylum seeker with a drinking problem for a psychological evaluation. A psychologist gave very persuasive testimony at the continued hearing, stating that the respondent suffered from such severe post-traumatic stress disorder that he drank to “self-medicate” in order to be able to sleep. The case ended in a grant of asylum. Continuances can strengthen deserving claims by allowing for the identification of witnesses and other evidence, and the hashing out of legal theories. This can be critical, as the BIA will not consider new arguments or evidence first presented on appeal.
The chief judge’s memo correctly states that “at least one continuance should be granted” in order to allow a respondent to obtain counsel. However, the memo raises concerns about granting additional adjournments, “particularly when all respondents are initially provided a list of pro bono legal services…” However, the memo fails to mention the strain the same backlog has put on the limited resources of the listed pro bono representatives. Therefore, denying additional continuances will require more applicants to proceed without counsel. At present, many cases pending before the courts involve asylum seekers (including minors) fleeing gang violence in Central America and Mexico. Many of these claims are based on the claimants’ membership in a particular social group, a still-evolving area of the law. BIA precedent requires an asylum applicant to “delineate and establish to the Immigration Judge any particular social group he claims.” See Matter of A-T-, 25 I&N Dec. 4, 10 (BIA 2009). “Particular social group” is a term of art that a pro se applicant would not understand. Furthermore, a knowledge of existing case law is essential in crafting a proposed social group to present to the immigration judge. In other words, the denial of additional continuances to allow an asylum applicant to obtain representation in order to move a case along can be fatal to an individual’s chances for obtaining relief, and can further undermine the applicant’s chance of success on appeal.
Hopefully, judges will continue to consider all of the above in their application of the Chief Judge’s memo.
Copyright 2017 Jeffrey S. Chase. All rights reserved.