Removal Ramblings: Motions to Continue in Immigration Court

One of the most common questions I find myself asked by potential clients in removal proceedings, particularly when there isn't any relief available, is how can I delay the next court date?

I'm sure there are a multitude of opinions on the subject of continuing a master calendar hearing.  One of the very first things I learned about removal defense as a young attorney is that there is no one right way of doing things.  Many fantastic attorneys have their own ideas, procedures and plans for what works for them.  This holds true even for seemingly simple actions such as motions to continue.

That being said, there are some basic rules I think are applicable before most all immigration courts:

(1) Know your Immigration Judge: I'm probably not the most well-traveled immigration attorney in the world, but even in the few immigration courts I have appeared in, I have noticed a great difference between immigration judges when it comes to a lot of things, including motions to continue.

Some IJs seem to generally dislike continuances regardless of the reasons behind the request.  Others seem to grant one (or even a couple) of continuances for "attorney prep time" as a matter of course.  Usually, most IJs fall somewhere in between.  Knowing what type of IJ you will be making the request to can inform your decision of how to best pursue a motion to continue better than any other factor.

If practicing before an IJ for the first time, call a colleague who has more experience with that particular IJ, post on an AILA listserve, or call the IJ's clerk (doing so can be quite informative).  You can get a good idea of what your IJ is like if you just make the effort.

(2) At least try to come up with a valid reason for continuing a Master Hearing: Admittedly, sometimes it is not easy, and if you have one of those above referenced IJs who as a matter of course will grant at least one continuance based on attorney prep time, by all means, ask for a continuance based on prep time.  The first rule is, after all, know your IJ.  Still, try and least come up with something if you can.  Anything.

If you're evaluating a client's eligibility for a specific form of relief, mention it.  If you have just submitted a PD request to OCC, mention it.  If you have a U visa certification pending, mention it.  If you have an I-13o pending, mention it.  If there is any other reason you feel you need a continuance, mention it.

Whatever you do, don't go into court and ask for a continuance based on the possibility of immigration reform (I've seen it several times this summer) or something equally as ridiculous (the client really wants to save some money, OCC just unexpectedly denied a PD request, etc.).  It doesn't do anything for your client or for your reputation with the court for that matter (which is really just as important at the end of the day).

Never ask for a continuance based on the prospect of comprehensive immigration reform

(3) Know the rules: If you have ever read the Immigration Court Practice Manual (spoiler alert, if you haven't, you should - find it here for free) you probably already know what I'm about to say.  Still, a basic review is not necessarily a bad thing.

First, the immigration courts generally prefer written motions to continue.  In fact, oral motions made in court are generally discouraged, even though they happen all the time.

Even when I file a motion based on attorney prep time, I still try and bring a written motion with me to court.  Really, it just looks better if you show up to court with a written motion the IJ can read and consider as opposed to just showing up and asking for more time.

In the written motion, you need to comply with all the standard filing requirements and be as detailed as possible with regards to the reasons you are asking for the continuance.  Be creative in your writing.  Isn't that what we're supposed to do as attorneys?  I never cease to be amazed at the lengths some attorneys seem to go to in order to avoid writing.  People!  We went to law school for a reason!

At the very least, look at things from the client's perspective.  He or she has just hired a high priced attorney to delay a probable removal. Doesn't it just look better if you have made the effort to write something up for the court?

From the court's perspective, you're coming in prepared.  You know what you're talking about, and when you say you need more time, the IJ, who now knows you take your work seriously, can understand you probably really do need more time.

Finally, the immigration court practice manual encourages parties to make all filings at least fifteen days before the next scheduled master calendar hearing.  While this is sometimes not possible and most IJs I have practiced before seem to view this as more of a guideline than a rule (at least at the master calendar level), some take it very seriously.  I have had experiences where a client hires me a couple of days before a hearing, I overnight a motion to continue to the court and then the IJ denies it for not having been filed more than fifteen days before the hearing.  It is not unheard of.

(4) Make sure you are aware of how many times your client appeared in court before you were hired: This may seem like a no-brainer; it really isn't.  Clients lose papers, forget important details and sometimes they flat out lie.  Some IJs will grant a continuance so a new attorney can figure out what is going on with the case.  Others will demand to know why the respondent waited until right before the hearing to hire an attorney when he or she was explicitly instructed at the last hearing to hire an attorney.  If you know your client has already had several masters, you can focus on possible forms of relief, which brings us to...

(5) If you know what relief your client qualifies for, ask for it: If you think your client has a prima facie cancellation of removal case or a withholding claim that at least passes the laugh test, just ask for the relief.  In most jurisdictions, the individual is probably going to be set out over a year into the future anyways, giving you adequate time to fully evaluate the matter.  So what if it is a weak case?  That extra year or two can make all the difference in the world to your client.  Even more importantly, you buy credibility with the IJ.  You look like an attorney who knows what you want.  On the rare occasion when you do ask for a continuance, the IJ will know you probably really do need one and is more likely going to be more inclined to grant the motion.  We are naive indeed if we fail to realize that IJs begin to notice the tendencies of attorneys who appear before them regularly.

While we're on the subject, I fear that we as attorneys often don't listen well enough to our clients.  We're so worried about whether or not a case is winnable, we don't stop to think about what our clients want.  If a client's claim for relief is not entirely frivolous, explain to the client why the case may or may not succeed, figure out if they want to proceed with the relief and then move forward accordingly.  It is our job as attorneys to frame the arguments and prepare well-organized, persuasive applications for relief.  Great facts make that easier, but great attorneys produce great work product regardless of the facts.  Don't be afraid to do your job, which first and foremost is to represent your clients.  You can't do that effectively without listening to them.

(6) Don't be afraid to ask for a continuance: Even if you have an IJ who is notorious for denying motions to continue, make sure you ask for it if you need one.  If you follow the rules above, you have a higher chance of having your motion approved.  More importantly, you can appeal the decision of an IJ to deny your motion to continue, which can also buy your client more time.

(6) Don't take it personally when your motion to continue is denied: Most IJs are not out to get you or your client personally. Virtually nation-wide, IJs have ridiculous backlogs to deal with and they do not want to make things worse by granting frivolous continuances. Would you?

Furthermore, it is fully within their rights to deny any motion to continue.  They are not obligated to approve anything.

Unless you're like me...

Immigration court is not a place for those who are easily frustrated.  If you take more than a couple of hand picked, perfect cases each year, you will lose the majority of your applications for relief.  Removal defense often feels like a game of 5 card draw where you are stuck with the five cards you've been dealt but the TA gets to peruse the rest of the deck, picking the best cards. Sometimes you get lucky and are dealt five awesome cards.  Most of the time the TA is able to hand pick the best.

The TAs seem to get all the bloody cards

Still, if you're creative and willing and able to learn from failure - regular failure - there's no better place to work than in immigration court. Remember this when filing a motion to continue.