AG Sessions Reforms Immigration Court

August 20, 2018

Tracks IRLI’s recommendations

WASHINGTON—U.S. Attorney General Jeff Sessions issued a decision late last week in an important Board of Immigration Appeals case that will reduce fraud and abuse by limiting immigration judges’ discretion to pause or “continue” removal hearings. Previously, immigration judges could routinely issue continuances halting proceedings, usually in cases in which an alien was waiting for U.S. Citizenship and Immigration Services (USCIS) to review a petition for benefits that would shut down the deportation process.

In a brief filed with the Attorney General supporting reforms of the continuance procedures, the Immigration Reform Law Institute (IRLI) described how the practice had expanded to unsustainable levels since much weaker procedures had been approved in 2009 under the Obama administration. From September 2008 until February 2018, the number of backlogged removal cases rose from 186,000 to 684,500—a 268 percent increase. The average number of days to complete a removal proceeding rose from 430 to 711.

One major bottleneck was the apparent ease with which illegal aliens charged with removal for unlawful acts could get immigration judges to delay (“continue”) their case for months, in some cases years, while the aliens filed time-consuming new applications for relief with other immigration agencies, mainly USCIS.

The nation’s immigration judges recognized the damage that granting 3.7 million continuances between 2006 and 2015 was causing to the removal process, but they resisted considering efficiency in deciding whether to grant a continuance. Sessions had referred the case to his office after becoming aware of the extent that continuances, administrative closures, and other government practices were choking off the already limited ability of the United States to manage immigration in the national interest.

The new federal policy he issued in this case permits immigration judges to grant continuances only “for good cause shown.” Practically speaking, good cause means that the unlawfully present alien has filed evidence that USCIS is likely to grant a petition for benefits, and that those immigration benefits will “materially affect the outcome of removal proceedings.” This new standard will sharply cut down on the number of continuances granted.

“In almost all but the most backward nations, immigration removal is a civil process that must operate efficiently to avoid an immigration crisis,” commented Dale L. Wilcox, executive director and general counsel of IRLI. “Such a crisis is now upon us, and the federal government has its work cut out for it to meet it. Fortunately, this decision should help us dig out of the hole prior administrations have put us in. The issue is vital: sluggishness by the immigration courts enables anarchy and lawlessness at our borders and points of entry.”

The case is Matter of L-A-B-R-, No. 27 I. & N. Dec. 405 (A.G. 2018).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]