HASHMI
24 I. & N. Dec. 785 (2009)
Rule of Law:
An alien's unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending family-based visa petition should generally be granted if approval of the visa petition would render the alien prima facie eligible for adjustment of status, and Immigration Judges must consider a specific set of factors in determining good cause for such continuances, without relying on case completion goals.
Facts:
- Ajmal Hussain Shah Hashmi, a native and citizen of Pakistan, entered the United States as a visitor on October 22, 2000.
- Hashmi married a United States citizen in 2001.
- Hashmi's wife filed a Petition for Alien Relative (Form I-130) on his behalf.
- Hashmi admitted the allegations of fact and conceded the charges of removability.
- Hashmi informed the Immigration Judge that he intended to apply for adjustment of status based on his marriage and the pending I-130 petition.
- The adjudication of Hashmi’s I-130 was delayed, partly due to the movement of his file between the USCIS office and the DHS attorney’s office.
Procedural Posture:
- Ajmal Hussain Shah Hashmi was served with a Notice to Appear (Form I-862) on July 30, 2003, initiating removal proceedings before an Immigration Judge.
- Hashmi requested multiple continuances (four initial ones) from the Immigration Judge to allow the USCIS time to adjudicate his I-130 petition.
- On March 29, 2005, the Immigration Judge denied Hashmi's fifth continuance request, citing Department of Justice 'case completion goals' and the extensive time the I-130 had been pending.
- Hashmi appealed the Immigration Judge's decision to the Board of Immigration Appeals (BIA, an intermediate appellate court).
- On July 31, 2006, the BIA affirmed the Immigration Judge's denial, citing the number of continuances and finding Hashmi had not shown prejudice; the BIA also (impermissibly, per the Third Circuit) found that Hashmi contributed to the delay.
- Hashmi filed a petition for review of the BIA's decision with the United States Court of Appeals for the Third Circuit (an intermediate appellate court).
- On July 7, 2008, the Third Circuit granted Hashmi's petition for review, finding the Immigration Judge's denial an abuse of discretion (because it was based solely on case-completion goals) and the BIA's fact-finding impermissible, then vacated the BIA’s prior order and remanded the case back to the BIA for further proceedings.
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Issue:
What factors should an Immigration Judge consider when determining whether to grant a continuance of ongoing removal proceedings for a respondent who has a pending family-based visa petition (Form I-130), which is a prerequisite for an application for adjustment of status?
Opinions:
Majority - Greer
Yes, an Immigration Judge should consider a specific set of factors to determine whether to grant a continuance of removal proceedings for a respondent with a pending family-based visa petition that could lead to adjustment of status. The Board of Immigration Appeals (BIA) acknowledges that Immigration Judges possess broad discretionary authority to grant continuances for 'good cause shown,' as outlined in 8 C.F.R. § 1003.29. Drawing from its precedent in Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), the BIA reaffirms the general rule that discretion should be favorably exercised when a prima facie approvable visa petition and adjustment application have been submitted in ongoing removal proceedings. This presumption is rooted in the significant interest at stake—the opportunity for lawful permanent resident status. However, the BIA clarifies that this is not an inflexible rule requiring a continuance in every case. To guide Immigration Judges, the BIA enumerates five non-exhaustive factors for consideration: (1) the Department of Homeland Security’s response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and any other relevant procedural factors. The BIA emphasizes that the ultimate focus of this inquiry is the apparent likelihood of success of the adjustment application. Crucially, the BIA explicitly states, consistent with the Third Circuit’s ruling in Hashmi v. Attorney General of U.S., 531 F.3d 256 (3d Cir. 2008), that an Immigration Judge's compliance with case completion goals is not a proper factor for denying a continuance. The Immigration Judge is required to articulate, balance, and explain all relevant factors in their decision.
Analysis:
This case significantly clarifies the 'good cause' standard for granting continuances in removal proceedings when an alien is pursuing adjustment of status through a family-based visa petition. By establishing a specific, multi-factor test, the BIA provides concrete guidance to Immigration Judges, reducing the potential for arbitrary denials based on external pressures like case completion goals. This decision balances the need for judicial efficiency with an alien's fundamental right to pursue eligible relief, ensuring that individuals with genuinely plausible paths to legal status are afforded a fair opportunity. Future cases will rely on this framework to assess the propriety of continuance denials, making it harder for Immigration Judges to summarily dismiss requests without a thorough and reasoned analysis of the enumerated factors.
