Ten years ago, the U.S. Court of Appeals for the Third Circuit decided Hashmi v. Att’y Gen. of the U.S.1  The case involved a request to continue a removal proceeding which the Department of Homeland Security did not oppose.  The respondent was married to a U.S. citizen; he would become eligible to adjust his status in immigration court once the visa petition she had filed on his behalf was approved by DHS.  However, the approval was delayed for reasons beyond the respondent’s control. One of those reasons was that a part of the respondent’s DHS file was needed by both the office in Cherry Hill, NJ adjudicating the visa petition and the DHS attorney in Newark prosecuting the removal case.

The immigration judge decided that he could wait no longer.  Noting that the pendency of the case had exceeded the agency’s stated case completion goals, the judge denied the continuance and ordered the respondent deported.  The U.S. Court of Appeals for the Third Circuit reversed, holding that “to reach a decision about whether to grant or deny a motion for a continuance based solely on case-completion goals, with no regard for the circumstances of the case itself, is impermissibly arbitrary.”

In response to Hashmi, the BIA issued a precedent decision stating that unopposed motions of that type should generally be granted.2  In subsequent decisions, the BIA provided further guidance in allowing IJs to make reasonable determinations to continue such cases,3 and to administratively close proceedings where it would further justice (as in Hashmi, where the need for the DHS file to be in two places at once was preventing the case from proceeding).4

In subjecting immigration judges to strict, metrics-based reviews last week, EOIR’s director, James McHenry, may pressure immigration judges into taking the types of actions barred by Hashmi.  Under the newly-announced metrics, individual judges may run the risk of disciplinary action for granting reasonable requests for continuance, or for other delays necessary for reaching a fair result.  The combined actions of McHenry (who prior to being promoted to the position of agency director had worked for EOIR for approximately 6 months as an administrative law judge with OCAHO, the only component of EOIR that doesn’t deal with immigration law or the immigration courts), and Attorney General Jeff Sessions in recently certifying four BIA decisions to himself, could erase the above positive case law developments of the past decade, and replace them with an incentive for rushed decisions that do not afford adequate safeguards to non-citizens facing deportation.

Allowing reasonable continuances for the parties to obtain counsel,  present evidence, and formulate legal theories, or to allow other agencies to adjudicate applications impacting eligibility, is an essential part of affording justice.  Judges also need to fully understand the legal arguments presented. When an issue arises in the course of a hearing, it is not uncommon for a judge to ask the parties for briefs, and for the judge to then conduct his or her own legal research before deciding the matter.  A detailed decision is also necessary to allow for meaningful review on appeal. However, all of this takes time, and the performance of individual judges will be found to be unsatisfactory or in need of improvement if they complete less than 700 cases per year, complete less than 95 percent of cases at their first merits hearing, or have 15 percent of their cases remanded on appeal.

Some recently reported actions by immigration judges in the name of expediency are troubling.  Last Sunday’s episode of Last Week Tonight with John Oliver (for which my colleague Carol King and I served as subject-matter sources) featured a credible-fear review hearing by an immigration judge that lasted one minute and 43 seconds in its entirety (and was probably doubled in length by the need for an interpreter).  The judge asked the unrepresented respondent a total of two questions before reaching this decision: “Well, the government of the United States doesn’t afford you protection for this type of reason. I affirm the Asylum Officer’s decision.” It’s not clear how the judge could have been confident in such conclusion.  The respondent was detained and had not yet had an opportunity to consult with counsel. Her claim was only sketched in the broadest outline; upon further development by an attorney, it may well have fallen into the “type of reason” for which asylum may be granted. Her credibility was never doubted; in fact, the program reported that she was assaulted at gunpoint by the man she fled after she was deported to her country.

In another case arising in the Ninth Circuit, C.J.L.G. v. Sessions,5 an immigration judge told the mother of a child in removal proceedings who was unable to retain counsel that she could represent her son, and proceeded with the child’s asylum hearing.  Of course, the mother was not qualified for the task. Although the son had been threatened with death for resisting gang recruitment efforts, he was denied asylum in a hearing in which many critical questions that could have helped develop a nexus between his fear and a legally protected ground for asylum were never asked.  This occurred because the judge did not feel that he could grant another continuance to provide the respondent an additional opportunity to retain counsel.

All of the above-described actions by IJs occurred prior to last week’s announcement by the EOIR director.  Should judges struggling to meet the benchmarks feel their job security to be at risk, will actions such as those described above become the norm?

As previously mentioned, the Attorney General certified four decisions of the BIA to himself shortly before the director’s announcement of the new metrics.  In one of those cases, Matter of E-F-H-L-,6 Sessions vacated a 2014 BIA precedent decision requiring immigration judges to provide asylum applicants a full hearing on their claim.  In another, Matter of A-B-,7 Sessions chose a case in which the BIA twice reversed an immigration judge’s denial of asylum to a victim of domestic violence, and on certification has made the case a referendum on whether victims of private criminal activity may constitute a particular social group for asylum purposes.

Should Sessions decide this issue in the negative, the two decisions taken together may allow for the type of quick denials of the “Government…doesn’t afford you protection for this type of reason” variety discussed above.  Fair-minded judges who will continue to hold full hearings and consider legal arguments in favor of granting relief may find it more difficult to meet all of the above benchmarks.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

Notes:

  1. 531 F.3d 256 (3d Cir. 2008)
  2. Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009).
  3. See Matter of Rajah, 25 I&N Dec. 127 (BIA 2009) (concerning continuances due to pending employment-based visa petitions) ; Matter of C-B-, 25 I&N Dec. 888 (BIA 2012) (requiring reasonable and realistic continuances to obtain counsel); Matter of Montiel, 26 I&N Dec. 555 (BIA 2015) (allowing delaying proceedings for adjudication of criminal appeals).
  4. See Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012); Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017).
  5. No. 16-73801 (9th Cir. Jan. 29, 2018); Pet. for rehearing and rehearing en banc pending.
  6. 27 I&N Dec. 226 (A.G. March 5, 2018)
  7. 27 I&N Dec. 227 (A.G. March 7, 2018)