On August 16, 2018, Attorney General Jefferson Sessions issued Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018), a precedent decision about how immigration judges (IJs) should decide certain motions for a continuance “to await the resolution of a collateral matter.” The decision uses the term “collateral matter” to refer to filings with U.S. Citizenship & Immigration Services (USCIS) and other matters pursued outside of immigration court that could affect the outcome of the removal proceedings. Many noncitizens in removal proceedings are eligible for immigration relief that is adjudicated by USCIS, and that, if granted, would provide them with lawful status and a basis for terminating the removal proceedings.
The Matter of L-A-B-R- decision interprets an immigration regulation that allows IJs to grant continuances “for good cause shown.” 8 CFR § 1003.29. The decision holds that the two principal factors in deciding if good cause has been shown in the context of pursuing “collateral matters” are “(1) the likelihood that the alien will receive the collateral relief, and (2) whether the relief will materially affect the outcome of the removal proceedings.” Id. at 413. It notes that “all relevant factors” should be considered and balanced, including, in addition to the two principal factors, “whether the alien has exercised reasonable diligence in pursuing that relief, DHS’s position on the motion, the length of the requested continuance, and the procedural history of the case.” Id.
The Attorney General gives examples of types of “collateral matters” that would not provide good cause for a continuance, including:
- A continuance to apply for a provisional unlawful presence waiver from USCIS while in removal proceedings (because individuals are ineligible to file these waiver requests while in proceedings that are not administratively closed)
- A collateral attack on a criminal conviction (noting that courts have found this “too ‘tentative’ and ‘speculative’”)
- When the filing has already been denied once and there are no relevant changed circumstances
- When a visa petition beneficiary’s adjustment would be denied by the IJ anyway because of statutory ineligibility or as a matter of discretion, and
- When a respondent’s visa priority date is “too remote to raise the prospect of adjustment of status above the speculative level.”
Id. at 417-18.
The decision states that respondents have the burden to show good cause and should submit evidence in support of the motion, including “copies of relevant submissions in the collateral proceeding, supporting affidavits, and the like.” Id. at 418. The decision directs that IJs must provide a reasoned explanation for granting a continuance. Id.
Notably, Matter of L-A-B-R- did not overrule previous Board of Immigration Appeals (BIA) precedents governing continuances to pursue specific types of “collateral” matters. In Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), the BIA set forth a five-factor balancing test for deciding a continuance motion when a respondent had a pending family-based visa petition, and in Matter of Rajah, 25 I&N Dec. 127 (BIA 2009), the BIA extended Hashmi to the context of employment-based visa petitions. In Matter of Sanchez-Sosa, 25 I&N Dec. 807 (BIA 2012), the BIA articulated a similar test for continuances to pursue U nonimmigrant status. Like L-A-B-R-, the BIA’s test in these previous decisions focused on the likelihood of success. In fact, the Attorney General draws on Hashmi and Rajah in the L-A-B-R- decision.
However, the L-A-B-R- decision takes a different tone than previous BIA decisions on continuances by emphasizing administrative efficiency and implying that respondents seek continuances as a “dilatory tactic” to abuse the immigration process. Id. at 407. It states that the BIA’s precedents on continuances beginning with Hashmi “coincided with a significant rise in the total number of continuances granted by the immigration courts.” Id. at 409. But it fails to mention other relevant factors, such as lengthy USCIS adjudication delays and the administration’s increased immigration enforcement, decreased use of prosecutorial discretion, and increase in the overall number of cases in immigration court.
Whereas previous decisions noted IJs’ “broad discretionary authority over continuances,” Hashmi, 24 I&N Dec. at 788, Rajah, 25 I&N Dec. at 129, Sanchez Sosa, 25 I&N Dec. at 812, the L-A-B-R- decision appears to seek to limit IJs’ discretion in granting continuances and states that “the good-cause requirement is an important check on immigration judges’ authority that reflects the public interest in expeditious enforcement of the immigration laws, as well as the tendency of unjustified continuances to undermine the proper functioning of our immigration system.” L-A-B-R-, 27 I&N Dec. at 406.
The opinion implies that IJs should be careful in their grants of continuances to avoid BIA reversal on interlocutory appeal. Id. at 418-19. The decision’s promotion of efficiency as the core value is reflected by the number of times “efficiency”-related words are used (about 30), in contrast to the number of times the opinion uses the term due process or fairness (zero). Respondents are entitled to due process in removal proceedings, see Reno v. Flores, 507 U.S. 292, 306 (1993), a concept that requires fundamental fairness, see Matter of Toro, 17 I&N Dec. 340 (BIA 1980). A group of retired IJs and former BIA members issued a statement calling the L-A-B-R- decision “the Attorney General’s latest blow to judicial independence.”
In sum, while the L-A-B-R- decision does not overrule previous BIA precedents on continuances, it does appear to intend to make it harder for IJs to grant continuances to respondents who are seeking relief in other forums. It suggests that administrative efficiency is an appropriate factor to consider in denying a continuance request, it directs already overburdened IJs who wish to grant a continuance to provide reasons on the record, “evaluat[ing] and balancing . . the relevant good-cause factors,” and it suggests that DHS consent is not a sufficient basis for granting a continuance nor should IJs “improperly shift the burden to DHS to demonstrate the absence of good cause.” Id. at 416.
- Filing Motions for a Continuance to Pursue “Collateral” Relief. Practitioners should argue why the continuance is justified under the “good cause” standard, drawing on L-A-B-R- and BIA precedents. The motion should be supported by evidentiary submissions. Because L-A-B-R- requires IJs to assess the likelihood of success, practitioners should include evidence that tends to show this, such as copies of relevant filings. Practitioners should carefully review all evidence before submission to ensure that it does not introduce inconsistencies or other problematic or sensitive information into the record. Practitioners should also be mindful that IJs do not have authority to adjudicate, or institutional competence to assess, certain types of immigration relief such as Special Immigrant Juvenile Status, T, and U petitions. Denial of a continuance based on erroneous assessment of the petition’s validity in these circumstances could provide a strong basis for appeal. Given the decision’s statement that a mere expression of the “intention to file for collateral relief at some future date or where the respondent appears to have unreasonably delayed filing for collateral relief until shortly before the noticed hearing” is not grounds for a continuance, id. at 416, it is important to make a record of diligence in pursuing the relief. Practitioners should cite all relevant factors for granting a continuance and not just rely on the factors articulated in L-A-B-R-. In a given case, these may include the respondent’s age, disability, status as a survivor of abuse, or delay outside of the respondent’s control, such as USCIS processing times.
- Other Types of Continuances. The Matter of L-A-B-R- standard does not explicitly apply to other types of continuance requests, such as a pro se respondent’s continuance to obtain counsel, an attorney preparation continuance, or a continuance request by the Department of Homeland Security for example because they do not have the file on the day of the hearing. Practitioners may wish to consult CLINIC’s article about a 2017 EOIR policy memorandum on continuances for tips on seeking other types of continuances. All continuance requests are governed by the good cause standard, however, and L-A-B-R- as well as BIA precedents and EOIR guidance should be relied on to the extent they are relevant to the particular type of continuance sought.
The L-A-B-R- decision, along with other administrative policies that make it more difficult for noncitizens to pursue immigration relief available to them by law, highlight the need for practitioners with strong removal defense skills who can advocate competently and zealously for vulnerable noncitizen clients. Practitioners seeking additional training on immigration court practice should consider CLINIC’s training for nonprofit immigration attorneys and fully accredited representatives (in partnership with the National Institute for Trial Advocacy), trainings for partially accredited representatives seeking to become fully accredited, and relevant webinars and practice advisories.
 See also M. Keller, Chief Immigration Judge, Executive Office for Immigration Review, Operating Policies and Procedures Memorandum 17-01: Continuances, at 1 (July 31, 2017) (continuance guidance “not intended to limit the discretion of an [IJ]”).
 The decision uses the term “efficient,” “efficiency,” “expeditious,” or “inefficient” 14 times; “timely” once, “streamline” once, “burden” caused by continuances four times, “delay” or “delaying tactic” 11 times, and “dilatory tactics” once. It also uses the words “overuse,” “unjustified,” “illegitimate,” “unnecessary,” and “abuse” when discussing continuances.
 Contrast Matter of Hashmi, which stated that case completion goals were not a proper factor in deciding a continuance request. 24 I&N Dec. at 793-94.
 The decision does not appear to require IJs to create such a record in denying a continuance.
 Contrast this with previous BIA precedents, which directed that “proceedings ordinarily should be continued” where “DHS affirmatively expresses a lack of opposition,” without needing to conduct further analysis and noted that DHS opposition should be reasonable and supported by the record to warrant denial of a continuance. Hashmi, 24 I&N Dec. at 791; see Sanchez Sosa, 27 I&N Dec. at 813.