CLINIC

 

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Continuances in Removal Proceedings While a U Status Application Is Pending

By Sarah Bronstein

On June 7, 2012, the BIA issued a decision on when an Immigration Judge should grant a request for a continuance of removal proceedings to await the decision on a U nonimmigrant status application.  Matter of Sanchez Sosa, 25 I&N Dec. 807 (BIA 2012).  This case was remanded to the BIA by the Ninth Circuit, which had found that the Immigration Judge had abused his discretion in denying a motion to continue to allow time for the U status application to be adjudicated.  Sanchez Sosa v. Holder, 373 F. App’x 719 (9th Cir. 2010).  This decision is important for those seeking U status while in removal proceedings because the BIA finds that “as a general rule, there is a rebuttable presumption that an alien who has filed a prima facie approvable application with the USCIS will warrant a favorable exercise of discretion for a continuance for a reasonable period of time.”  Matter of Sanchez Sosa at 815.

Individuals are eligible to seek U nonimmigrant status if they have been the victim of a qualifying crime in the United States; have been helpful or are likely to be helpful in the investigation or prosecution of the crime; and have suffered substantial physical or mental abuse as a result of having been the victim of the crime.  The Respondent in this case and his family members were in removal proceedings.  An I-918, application for U nonimmigrant status, had been filed on the Respondent’s behalf and was pending with USCIS.  USCIS has exclusive jurisdiction over the adjudication of U status applications.  The Immigration Judge denied the Respondent’s request for a continuance so that the application could be adjudicated, denied the other forms of relief he was seeking and ordered him removed. 

The regulations state that an “Immigration Judge may grant a motion for continuance for good cause shown.”  8 CFR § 1003.29.  The regulations do not define what constitutes “good cause” but the BIA in past decisions has elaborated on the standard that should be used.  In Sanchez Sosa, the BIA applied those factors in the U status context.  The BIA set forth the following factors an Immigration Judge should consider in deciding whether to grant a motion to continue while a U status application is pending:  1) DHS’ response to the motion; 2) whether the underlying visa petition is prima facie approvable; and 3) the reason for the continuance and other procedural factors.

Factor One:  DHS’ Position.  The BIA states that if DHS does not oppose a continuance, the Immigration Judge should grant the continuance unless there are unusual and supported reasons for not doing so.  Matter of Sanchez Sosa, citing Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009).  Furthermore, the BIA states that while DHS opposition that is reasonable and supported by the record should be given significant consideration, “unsupported opposition does not carry much weight.”  Matter of Sanchez Sosa at 813. 

Factor Two:  Prima Facie Eligibility.  If DHS opposes the continuance or there are other reasons for further inquiry, the Immigration Judge should focus on the Respondent’s prima facie eligibility for U status.  The Immigration Judge should consider whether the Respondent is likely to be able to show that she has suffered substantial physical or mental abuse as a result of qualifying criminal activity.  The Immigration Judge must then determine whether the Respondent has been helpful or is likely to be helpful to law enforcement in the investigation or prosecution of the crime.  If there are inadmissibility issues, the Immigration Judge should consider the likelihood USCIS will approve the waiver.   In order for the Immigration Judge to make this determination of prima facie eligibility, the Respondent should provide the Immigration Judge with a copy of the I-918 application, any request for a waiver of the grounds of inadmissibility and the receipt notice from USCIS.  If the Respondent has provided proof of filing, appears to meet the eligibility requirements, and has not caused any delay on the case, then there is sufficient support for the granting of a continuance. Id. At 814.

Factor Three:  Reasons for the Continuance and Other Factors.  Lastly, the BIA finds that the Immigration Judge may consider the length of time the application has been pending, the number of continuances that have already been granted and other relevant considerations before deciding whether to grant the motion to continue.  Id. at 815. 

Matter of Sanchez Sosa provides a useful framework for individuals in removal proceedings who are seeking a continuance while their U status applications are adjudicated by USCIS.