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EOIR proposes regs to further narrow continuances in immigration court

  1. Original Date Announced

    November 27, 2020

    EOIR proposes regulations to better define “good cause” and when it may apply to postponement, continuance, or adjournment. Among the changes of the proposed rule:

    • “Good cause” is defined to require a demonstration of "a particular and justifiable need" for a continuance.
    • Good cause is not shown where a continuance: (i) would not materially affect the outcome of the proceedings; (ii) is requested by a party who has not demonstrated a likelihood of obtaining collateral relief; (iii) is requested to seek parole, deferred action, or DHS' prosecutorial discretion; or (iv) would cause the immigration court to exceed a statutory or regulatory deadline (absent an exception to the deadline or a demonstration of good cause).
    • Awaiting visa processing or a priority date to become current is not good cause for a continuance, unless the request can satisfy three requirements: (i) the request involves an immediately available visa or one with a priority date within 6 months of being current, (ii) the respondent demonstrates prima facie eligibility for the visa (including the favorable exercise of discretion and any necessary waivers), and (iii) the IJ has jurisdiction to adjudicate the application for adjustment of status (and any necessary waivers).
    • Continuances may not be granted where a visa petition is based on a marriage entered into during administrative or judicial proceedings, unless the respondent proves by "clear and convincing evidence" that the marriage is bona fide and not entered into for immigration reasons.
    • Similar continuance rules apply to U visa applicants and unaccompanied minors.
    • Continuances to obtain legal representation would be restricted, with an exception made where a hearing occurs less than 30 days after the service of the NTA and the respondent shows due diligence in finding counsel (whereupon the respondent may get up to another 30 days).
    • Generally, continuances may not be given on the basis of attorney workload, attorney scheduling conflicts, or attorney need for more preparation time.
    • IJs may not continue a case on their own motion, except in clearly-specified circumstances.
    • Continuances of merits hearings are strongly discouraged. Where such continuances are granted, they should be limited to 30 days.

    [ID #1191]

    85 Fed. Reg. 75925: Good Cause for a Continuance in Immigration Proceedings

Current Status

Not in effect

Original Trump Policy Status

Status: Proposed
Trump Administration Action: Rule
Subject Matter: Hearings and Adjudications
Agencies Affected: EOIR

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