Washington, DC — In the latest of a series of decisions undermining access to due process and the independence of our immigration courts, Attorney General Jeff Sessions last week greatly restricted the ability of immigration judges to grant continuances–a critical tool judges need to ensure proper adjudication of children’s protection claims. In Matter of L-A-B-R-, the Attorney General underscored that continuances should only be granted for “good cause.” The Attorney General explained that “good cause” should consider the likelihood that an individual’s application for relief will be granted and that any such relief will make a difference in the outcome of the individual’s deportation proceedings.
This heightened standard—far from a mere procedural nuance–hinders the full and fair consideration of claims by those who have survived harrowing violence, abuse, trafficking and crime, and risks the return of thousands of children to danger or even death.
The Decision Results in a Perversion of Justice and Contravenes Congressional Intent
Many unaccompanied children are eligible for humanitarian protection. Those applications, including asylum, Special Immigrant Juvenile (SIJ) status, and humanitarian visas for victims of severe trafficking and other crime, are adjudicated by U.S. Citizenship and Immigration Services (USCIS). Continuances allow judges to permit their colleagues in other agencies and courts—who Congress gave jurisdiction over these matters—to fully and appropriately consider a child’s application for legal relief. In SIJ cases, for example, jurisdiction is shared by state courts, which make certain factual findings about the child’s circumstances and best interests that may indicate eligibility for SIJ, and USCIS, which ultimately adjudicates the child’s petition for legal immigration status. This shared jurisdiction, envisioned outside the realm of immigration court, reflects Congress’ understanding that decisions about family law and child protection are best made by state courts, owing to their longstanding expertise and authority over family matters.
The Attorney General’s decision would require immigration judges to make assessments about the likely outcome of SIJ cases and other applications that are within the jurisdiction of other courts and agencies. To receive humanitarian protection, individuals frequently must await adjudication of an application for relief by USCIS as well as the availability of a corresponding visa. Under the inquiry set forth by the Attorney General, immigration judges can deny continuances as a matter of discretion or if they deem the availability of a visa “too remote” to suggest the individual will ultimately obtain legal status. Currently, children that the government has already deemed eligible for relief as abused or abandoned children are enduring long waits under a current visa shortage. Inquiries of this kind could effectively deprive children of the ability to meaningfully access protections that they are entitled to under the law. As a result, children may be deported to grave harm or violence from which they fled.
The Decision Overlooks the Needs and Realities of Unaccompanied Children
Matter of L-A-B-R- limits the use of continuances for individuals making an application before USCIS for legal relief from removal.
Many unaccompanied children do not have attorneys to represent them at their initial appearances in immigration court. As such, these children may be unfamiliar with the legal options available to them and unable to prepare relevant applications in advance of court proceedings. Additional concerns, including trauma related to past harm or violence, may hinder the ability of children to provide details and information necessary to substantiate their claims for humanitarian protection in an open and busy courtroom during public hearings. The denial of continuances in these circumstances creates insurmountable barriers to protection for children in the greatest need and risks the return of children to harm or danger, despite their eligibility for relief.
The Decision Further Undermines the Independence and Discretion of Judges
The Attorney General’s decision limits the ability of immigration judges to grant continuances in their own discretion and further requires judges to document in writing the reasons for any continuances related to collateral relief. These requirements, coupled with recent performance goals and case completion requirements, place new burdens on immigration judges and undermine their ability to manage their dockets to ensure due process for all who appear before them.
Media Contact: Megan McKenna, firstname.lastname@example.org, 202-631-9990