But Jeffrey Chase, a former immigration judge and senior legal adviser to the BIA, said that the attorney general’s ruling is more likely to hinder efficient case adjudications. He said that immigration judges are already facing pressure to meet case completion quotas imposed by the Executive Office of Immigration Review earlier this year, and they have been forced to double-book hearings, meaning that cases will, by necessity, have to be continued.
“Under this latest ruling, judges will now have to write lengthy, detailed decisions for each continuance, an unrealistic expectation where judges must also complete three or more full hearings a day,” he said. “Some judges report receiving 10 or more motions for continuance a day, and lack the time and resources to write lengthy decisions on each while also hearing a full docket of cases.”
. . . .
Chase said that the decision’s “emphasis on efficiency over justice is particularly callous” given that, for many asylum applicants in immigration court, deportation may be a “death sentence.” He also pointed out that the decision does not seem to apply to continuances requested by U.S. Immigration and Customs Enforcement.
“It is unfair to require noncitizens seeking immigration status to demonstrate good cause for a continuance, while allowing ICE continuances for avoidable reasons such as misplacing the file, failing to obtain a needed document or not having adjudicated a petition in time,” he said.
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Those of you with access can read Nicole’s full article over at Law 360.
Of course as Judge Chase says L-A-B-R- will not “promote judicial efficiency.” Far from it!
Immigration Judges will have to spend more time writing decisions to justify granting, as well as denying, continuances. That means less time for merits cases. The BIA will see an increase in “interlocutory appeals” from both sides, but particularly from DHS. Again, this takes time away from work on the merits appeals, which is why the BIA quite properly discouraged such interlocutory appeals in the first place. And, denial of a continuance to a respondent, particularly when it involves finding an attorney, attorney preparation, or obtaining evidence or witnesses, is an appealable due process issue on petitions for review to the Article III courts. Consequently, expect plenty of remands from the Circuit Courts as Immigration Judges and BIA Appellate Immigration Judges are pushed to churn out more denials and final orders of removal under Sessions’s “tilted field” approach.
As Jeffrey also points out, DHS requests and gets many continuances for routine matters like failure to have files or missing evidence to support the charges. Moreover, in L-A-B-R- Sessions totally ignores one of the main culprits for today’s backlog: Aimless Docket Reshuffling” (“ADR”) by EOIR often to accommodate the enforcement aims of DHS or politicos at the DOJ.
“Just pedal faster gimmicks” and having unqualified politicos tell judges how to manage dockets and run their courtrooms are a prescription for failure. The only question is how big the train wreck caused by this hunk of Sessions’s malfeasance will be!
Thanks for speaking out, Jeffrey. And thanks for your coverage, Nicole.
PWS
08-21-18