Good Cause for a Continuance in Immigration Proceedings

Citation85 FR 75925
Record Number2020-25931
Published date27 November 2020
CourtExecutive Office For Immigration Review
Federal Register, Volume 85 Issue 229 (Friday, November 27, 2020)
[Federal Register Volume 85, Number 229 (Friday, November 27, 2020)]
                [Proposed Rules]
                [Pages 75925-75941]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2020-25931]
                ========================================================================
                Proposed Rules
                 Federal Register
                ________________________________________________________________________
                This section of the FEDERAL REGISTER contains notices to the public of
                the proposed issuance of rules and regulations. The purpose of these
                notices is to give interested persons an opportunity to participate in
                the rule making prior to the adoption of the final rules.
                ========================================================================
                Federal Register / Vol. 85, No. 229 / Friday, November 27, 2020 /
                Proposed Rules
                [[Page 75925]]
                DEPARTMENT OF JUSTICE
                Executive Office for Immigration Review
                8 CFR Parts 1003 and 1240
                [EOIR 19-0410; Dir. Order No. 02-2021]
                RIN 1125-AB03
                Good Cause for a Continuance in Immigration Proceedings
                AGENCY: The Executive Office for Immigration Review, Department of
                Justice.
                ACTION: Notice of proposed rulemaking.
                -----------------------------------------------------------------------
                SUMMARY: The Department of Justice (``Department'' or ``DOJ'') is
                proposing to define ``good cause,'' in the context of continuances,
                adjournments, and postponements, in its immigration regulations.
                DATES: Written or electronic comments must be submitted on or before
                December 28, 2020. Written comments postmarked on or before that date
                will be considered timely. The electronic Federal Docket Management
                System will accept comments until midnight Eastern Time on that date.
                ADDRESSES: If you wish to provide comment regarding this rulemaking,
                you must submit comments, identified by the agency name and reference
                RIN 1125-AB03 or EOIR Docket No. 198-0410, by one of the two methods
                below.
                 Federal eRulemaking Portal: http://www.regulations.gov.
                Follow the website instructions for submitting comments.
                 Mail: Paper comments that duplicate an electronic
                submission are unnecessary. If you wish to submit a paper comment in
                lieu of electronic submission, please direct the mail/shipment to:
                Lauren Alder Reid, Assistant Director, Office of Policy, Executive
                Office for Immigration Review, 5107 Leesburg Pike, Suite 2616, Falls
                Church, VA 22041. To ensure proper handling, please reference the
                agency name and RIN 1125-AB03 or EOIR Docket No. 19-0410 on your
                correspondence. Mailed items must be postmarked or otherwise indicate a
                shipping date on or before the submission deadline.
                FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director,
                Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
                2616, Falls Church, VA 22041, telephone (703) 305-0289 (not a toll-free
                call).
                I. Public Participation
                 Interested persons are invited to participate in this rulemaking by
                submitting written data, views, or arguments on all aspects of this
                rule via the one of the methods and by the deadline stated above. All
                comments must be submitted in English, or accompanied by an English
                translation. The Department also invites comments that relate to the
                economic, environmental, or federalism effects that might result from
                this rule. Comments that will provide the most assistance to the
                Department in developing these procedures will reference a specific
                portion of the rule; explain the reason for any recommended change; and
                include data, information, or authority that support such recommended
                change.
                 Please note that all comments received are considered part of the
                public record and made available for public inspection at
                www.regulations.gov. Such information includes personally identifying
                information (such as your name, address, etc.) voluntarily submitted by
                the commenter. If you want to submit personally identifying information
                (such as your name, address, etc.) as part of your comment, but do not
                want it to be posted online, you must include the phrase ``PERSONALLY
                IDENTIFIABLE INFORMATION'' in the first paragraph of your comment and
                identify what information you want redacted.
                 If you want to submit confidential business information as part of
                your comment, but do not want it to be posted online, you must include
                the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
                of your comment. You must prominently identify the confidential
                business information to be redacted within the comment. If a comment
                has so much confidential business information that it cannot be
                effectively redacted, all or part of that comment may not be posted on
                www.regulations.gov.
                 Personally identifying information located as set forth above will
                be placed in the agency's public docket file, but not posted online.
                Confidential business information identified and located as set forth
                above will not be placed in the public docket file. The Departments may
                withhold from public viewing information provided in comments that they
                determine may impact the privacy of an individual or is offensive. For
                additional information, please read the Privacy Act notice that is
                available via the link in the footer of http://www.regulations.gov. To
                inspect the agency's public docket file in person, you must make an
                appointment with the agency. Please see the For Further Information
                Contact paragraph above for agency contact information.
                II. Executive Summary
                 The Department of Justice proposes to amend its regulations in
                title 8 to provide a clearer definition of ``good cause'' and the
                situations in which it is shown to warrant a postponement, continuance,
                or adjournment in immigration proceedings. Existing regulations do not
                provide guidance as to what qualifies as ``good cause,'' but only
                provide that ``good cause'' is the standard to be applied when
                determining whether a postponement, continuance, or adjournment is
                appropriate. Cf. 8 CFR 1003.29. This ambiguity has left the Board of
                Immigration Appeals (the ``Board'' or ``BIA'') and federal courts to
                interpret the term on a case-by-case basis. Over time, the Board has
                articulated standards applicable to continuance requests arising in
                various contexts. Some aspects of these standards, however, would
                benefit from further clarification, as the Board's case law does not
                address every context where continuance requests typically arise.
                Moreover, it would simplify matters to have the applicable standards
                for continuances located in a single regulation. To address
                continuances in a more comprehensive and systematic manner, this
                proposed rule would revise 8 CFR 1003.29 and codify standards for what
                constitutes ``good cause'' in different scenarios, including many of
                the factors the case law defines.
                 First, the proposed rule at 8 CFR 1003.29(b)(1) would define ``good
                [[Page 75926]]
                cause'' to require the requesting party to demonstrate a particular and
                justifiable need for a continuance, and to make clear that the burden
                is on the requesting party. It would further provide that immigration
                judges should consider five specified non-exhaustive factors when
                determining whether good cause exists.
                 Second, the proposed rule at 8 CFR 1003.29(b)(2) would codify
                scenarios in which ``good cause'' is not shown. These would include
                where the continuance: Would not materially affect the outcome of the
                proceedings; is requested by a party who has not demonstrated a
                likelihood of obtaining relief in a collateral matter, where such
                relief is the basis for the request; is in order to seek parole,
                deferred action, or the exercise of prosecutorial discretion by the
                Department of Homeland Security (``DHS''); or would cause the
                immigration court to exceed a statutory or regulatory deadline, unless
                an exception applies or the movant demonstrates good cause.
                 Third, the rule would further build on the general standards
                regarding good cause and codify standards or guidelines for
                adjudicating requests for continuances in four common situations:
                Continuances related to collateral immigration applications outside of
                the Executive Office for Immigration Review's (``EOIR'') jurisdiction;
                continuances related to an alien's representation; continuances on an
                immigration judge's own motion; and continuances of a merits hearing.
                III. Background
                 An immigration judge ``may grant a motion for continuance for good
                cause shown.'' 8 CFR 1003.29. The ``continuance for good cause shown''
                language was initially added to the regulations in 1987 to codify
                existing practices and to ``restate[ ] in simpler terms the
                discretionary authority of Immigration Judges to grant continuances for
                good cause shown found in 8 CFR 242.13.'' Aliens and Nationality; Rules
                of Procedure for Proceedings Before Immigration Judges, 52 FR 2931,
                2934 (Jan. 29, 1987); \1\ see also Orders To Show Cause and Warrants of
                Arrest, 28 FR 9504, 9504-05 (Aug. 30, 1963) (codifying 8 CFR 242.13
                (postponement and adjournment of hearing in exclusion proceedings));
                Matter of Sibrun, 18 I&N Dec. 354, 355-58 (BIA 1983) (discussing
                factors for consideration regarding a motion for continuance in
                exclusion proceedings).
                ---------------------------------------------------------------------------
                 \1\ In 1987, the relevant regulation was codified at 8 CFR 3.27.
                See 52 FR at 2934. DOJ subsequently redesignated 8 CFR 3.27 as 8 CFR
                3.29 in 1992. See Executive Office for Immigration Review; Rules of
                Procedures, 57 FR 11568, 11569 (Apr. 6, 1992). Following the
                creation of the Department of Homeland Security in 2003 after the
                passage of the Homeland Security Act of 2002, Public Law 107-296,
                116 Stat. 2135, EOIR's regulations were moved from chapter I of
                title 8 of the CFR to chapter V, and 8 CFR 3.29 was accordingly
                redesignated as 8 CFR 1003.29. See Aliens and Nationality; Homeland
                Security; Reorganization of Regulations, 68 FR 9824, 9830 (Feb. 28,
                2003).
                ---------------------------------------------------------------------------
                 Although the ``good cause'' standard has been used for over 100
                years, see, e.g., Rice v. Ames, 180 U.S. 371, 376 (1901) (discussing an
                Illinois statute that authorized justices of the peace and examining
                magistrates to grant continuances ``on consent of the parties or on any
                good cause shown.'') (internal quotation marks omitted)), and is a
                standard applied in the Immigration and Nationality Act (``INA'' or the
                ``Act''), INA 243(a)(3), 8 U.S.C. 1253(a)(3) (authorizing district
                courts to, for good cause, suspend the sentence and order the release
                of an alien who has failed to comply with a removal order),\2\ the term
                does not have a settled meaning in law. See Matter of L-A-B-R-, 27 I&N
                Dec. 405, 412 (A.G. 2018) (comparing Johnson v. Mammoth Recreations,
                Inc., 975 F.2d 604, 610 (9th Cir. 1992) (``extraordinary circumstances
                [are] a close correlate of good cause''), with Hall v. Sec'y of Health,
                Educ. & Welfare, 602 F.2d 1372, 1377 (9th Cir. 1979) (``Good cause is .
                . . not a difficult standard to meet.'')).
                ---------------------------------------------------------------------------
                 \2\ ``Good cause'' also is used as a standard for evaluating the
                appropriateness of actions elsewhere in EOIR's regulations. See,
                e.g., 8 CFR 1003.3 (extension of briefing schedule); 8 CFR 1003.20
                (change of venue); 8 CFR 1003.25 (waiver of the presence of the
                parties).
                ---------------------------------------------------------------------------
                 Neither the INA nor its implementing regulations presently define
                ``good cause''or how the standard may be met in immigration
                proceedings.\3\ Absent such a statutory or regulatory definition, the
                parameters of ``good cause'' for continuances have developed over time
                through case law. See, e.g., Matter of L-N-Y-, 27 I&N Dec. 755, 759-60
                (BIA 2020) (a speculative and indefinite continuance request due to
                uncertainty surrounding when a collateral visa request will be resolved
                does not demonstrate good cause); Matter of L-A-B-R-, 27 I&N Dec. at
                413-19 (clarifying framework for ``good cause standard'' when a
                respondent requests a continuance to pursue collateral relief); Matter
                of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009) (setting forth factors for
                consideration when determining whether there is ``good cause'' for a
                continuance so that an alien may pursue adjustment of status before the
                United States Citizenship and Immigration Services (``USCIS'')); Matter
                of Rajah, 25 I&N Dec. 127, 130, 135-38 (BIA 2009) (extending the Hashmi
                good cause framework to respondents seeking employment-based visas and
                related relief); In general, case law sets forth multi-factor balancing
                approaches to the good cause standard for motions for a continuance
                under 8 CFR 1003.29.\4\ This rule proposes to codify those parameters
                and add requirements and clarifications where needed.
                ---------------------------------------------------------------------------
                 \3\ One provision of the INA does provide a multi-factor
                definition of ``good cause'' in the context of a district court's
                authority to suspend a criminal sentence imposed after a conviction
                of an alien for failing to take steps to execute a removal order.
                See INA 243(a)(3), 8 U.S.C. 1253(a)(3). Although that particular
                definition is not applicable to immigration proceedings and its
                factors have little bearing on whether good cause exists for a
                continuance in such proceedings, it does demonstrate the default
                approach courts have taken when evaluating ``good cause'' as the
                relevant standard without a precise definition. See Matter of L-A-B-
                R-, 27 I&N Dec. at 412-13.
                 \4\ Additionally, the Attorney General has recognized that the
                same multi-factor test set forth by case law for continuances
                applies in the context of adjournments or postponements requested by
                the parties. See Matter of L-A-B-R-, 27 I&N Dec. at 407 n.1 (``The
                Board and the parties agree that the same good cause standard
                governs continuances under section 1240.6. I operate on the same
                understanding . . . .''); 8 CFR 1240.6 (``After the commencement of
                the hearing, the immigration judge may grant a reasonable
                adjournment either at his or her own instance or, for good cause
                shown, upon application by the respondent or the Service.''); see
                also 8 CFR 1240.45 (adjournments or postponements in the context of
                exclusion proceedings).
                ---------------------------------------------------------------------------
                 In Matter of Sibrun, the Board noted that there was little guidance
                on standards for motions to continue in immigration proceedings and
                turned to standards for continuances in federal criminal procedure at
                that time. 18 I&N Dec. at 355-356. The BIA determined that ``an alien
                at least must make a reasonable showing that the lack of preparation
                occurred despite a diligent good faith effort to be ready to proceed
                and that any additional evidence he seeks to present is probative,
                noncumulative, and significantly favorable to the alien.'' Id. The BIA
                also concluded that ``[b]are, unsupported allegations'' would not be
                sufficient to establish good cause and that the alien was responsible
                for ``specifically articulat[ing] the particular facts involved or
                evidence which he would have presented and otherwise fully explain how
                denial of his motion fundamentally changed the result reached.'' Id. at
                357.
                 After Matter of Sibrun, many published decisions evaluating the
                good cause standard in immigration proceedings involved continuances to
                afford an alien with the time and opportunity to pursue collateral
                relief. See, e.g., Matter of Sanchez Sosa, 25 I&N Dec. 807, 812-13 (BIA
                2012) (outlining factors for consideration in evaluating whether a
                continuance
                [[Page 75927]]
                request to await the adjudication of a U-visa application demonstrates
                good cause); Matter of Rajah, 25 I&N Dec. at 135-38 (applying the
                factors in Matter of Hashmi to evaluation of whether a continuance
                request to await the adjudication of an employment-based immigrant visa
                petition demonstrates good cause); Matter of Hashmi, 24 I&N Dec. at 790
                (outlining factors for consideration in evaluating whether a
                continuance request to await the adjudication of a family-based
                immigrant visa petition demonstrates good cause). In Matter of Hashmi,
                the BIA set forth six non-exhaustive factors for determining whether
                there is good cause for a continuance to accommodate a collateral
                matter, including: The DHS response to the motion to continue; whether
                the underlying visa petition is prima facie approvable; the
                respondent's statutory eligibility for adjustment of status; whether
                the respondent's application for adjustment of status merits a
                favorable exercise of discretion; the reason for the continuance; and
                any other relevant procedural factors. 24 I&N Dec. at 790.
                 Specifically, in Matter of Hashmi, the respondent had requested a
                continuance so that USCIS could have additional time and opportunity to
                adjudicate the Form I-130, Petition for Alien Relative, filed on the
                respondent's behalf, which, if granted, would have rendered the
                respondent prima facie eligible for adjustment of status. See id. at
                787; see also Matter of Garcia, 16 I&N Dec. 653, 657 (BIA 1978)
                (stating that an immigration judge should favorably exercise discretion
                where a prima facie approvable visa petition and adjustment application
                have been submitted in the course of removal hearings), modified on
                other grounds by Matter of Arthur, 20 I&N Dec. 475 (BIA 1992); see
                generally INA 245(a), 8 U.S.C. 1255(a) (requiring, in part, that an
                applicant be eligible to receive an immigrant visa).
                 The BIA later extended the Hashmi framework to continuance requests
                related to other types of collateral proceedings, such as employment-
                based visas and U-visas. See Matter of Sanchez Sosa, 25 I&N Dec. at
                812-13; Matter of L-N-Y-, 27 I&N Dec. at 757; Matter of Rajah, 25 I&N
                Dec. at 130. Notably, in Matter of Sanchez Sosa, the BIA determined
                that the movant must demonstrate that the requested continuance is
                ``for a reasonable period of time.'' 25 I&N Dec. at 815.
                 In Matter of L-A-B-R-, the Attorney General clarified the framework
                governing continuances to accommodate a collateral matter.
                Specifically, the Attorney General determined that where a provision
                uses the term ``good cause,'' but does not define it, immigration
                judges and the BIA should conduct a multi-factor balancing analysis.
                See 27 I&N Dec. at 413. The Attorney General stated that ``[t]he good-
                cause standard [for continuances] requires consideration and balancing
                of all relevant factors in assessing a motion for continuance to
                accommodate a collateral matter'' and noted that such an approach
                ``comports with both the INA and the prevailing treatment of good-cause
                standards, and has received the approval of several federal courts of
                appeals.'' Id. (collecting cases).
                 The Attorney General further explained, however, that not all
                factors relevant to the ``good-cause assessment'' in the context of
                continuances should be weighted equally. Id. Rather, the adjudicator
                ``must focus principally on two factors'' including ``the likelihood
                that the alien will receive the collateral relief'' and ``whether the
                relief will materially affect the outcome of the removal proceedings.''
                Id. Additionally, the Attorney General directed that the adjudicator
                should consider ``whether the alien has exercised reasonable diligence
                in pursuing [collateral] relief, DHS's position on the motion, the
                length of the requested continuance, and the procedural history of the
                case.'' Id. The Attorney General elaborated that ``[i]t may also be
                appropriate to consider the length of the continuance requested, the
                number of hearings held and continuances granted previously, and the
                timing of the continuance motion . . . .'' Id. at 415. The Attorney
                General further stated that the burden to establish good cause is on
                the party seeking the continuance. See id. at 413.
                 Recently, the BIA has stressed that overall prima facie eligibility
                for relief is not dispositive regarding a motion for continuance where
                other factors weigh against continuing the proceedings. See Matter of
                L-N-Y-, 27 I&N Dec. at 758. Specifically, the BIA determined that an
                alien who had demonstrated prima facie eligibility for a U visa did not
                demonstrate good cause for a continuance where the alien did not
                exercise due diligence in applying for the U visa, DHS opposed the
                continuance, and a continuance would undermine administrative
                efficiency. See id. When evaluating administrative efficiency, the BIA
                considered the uncertainty as to when the U visa would be approved or
                become available. See id. at 759. The BIA also directed immigration
                judges to ``consider whether an alien is detained in determining the
                length and number of continuances that are appropriate'' in light of
                the alien's liberty interest and the Government's interest ``to
                reasonably limit the expense of detention.'' Id.
                 Notably, almost every approach to defining ``good cause,'' in the
                context of an alien awaiting a collateral adjudication by DHS or for a
                visa to become current, highlights the importance of visa availability
                in assessing ``good cause.'' See, e.g., Matter of L-A-B-R-, 27 I&N Dec.
                at 418 (``Similarly, because adjustment of status typically requires an
                immediately available visa, INA 245(a), 8 U.S.C. 1255(a), good cause
                does not exist if the alien's visa priority date is too remote to raise
                the prospect of adjustment of status above the speculative level.'');
                Matter of Rajah, 25 I&N Dec. at 136 (``A respondent who has a prima
                facie approvable I-140 and adjustment application may not be able to
                show good cause for a continuance because visa availability is too
                remote.'').\5\ This approach comports with longstanding Board case law.
                See Matter of Quintero, 18 I&N Dec. 348, 350 (BIA 1982) (``In any case,
                the fact that the respondent has an approved visa petition does not
                entitle him to delay the completion of deportation proceedings pending
                availability of a visa number.''), aff'd
                [[Page 75928]]
                sub nom. Quintero-Martinez v. INS, 745 F.2d 67 (9th Cir. 1984)
                (unpublished). It has also been endorsed by federal courts. See, e.g.,
                Chacku v. U.S. Att'y Gen., 555 F.3d 1281, 1286 (11th Cir. 2008)
                (finding that no good cause was shown for a continuance where the
                alien's priority date was years in advance of current visa
                availability). No case law, however, defines how close or remote visa
                availability must be to establish good cause.
                ---------------------------------------------------------------------------
                 \5\ Although Matter of Hashmi did not address visa availability
                per se because the respondent in that case would have a visa
                immediately available upon approval of a Form I-130, the Board did
                note that statutory eligibility for adjustment of status was an
                important element to consider in evaluating a continuance request,
                see Matter of Hashmi, 24 I&N Dec. at 792, and an immediately-
                available visa at the time an adjustment of status application is
                filed is a statutory requirement to adjust status. See INA
                245(a)(3), (i)(2)(B), 8 U.S.C. 1255(a)(3), (i)(2)(B). Similarly, the
                BIA had no occasion to address visa availability in Matter of
                Sanchez Sosa because the annual statutory cap on U visas had not
                been reached at the time of the decision in June 2012, and a U visa
                appears to have been available to the respondent at that time.
                Compare INA 214(p)(2)(A), 8 U.S.C. 1184(p)(2)(A) (establishing an
                annual limit of 10,000 U visas per fiscal year), with USCIS, Victims
                of Trafficking Form I-914 (T) and Victims of Crime Form I-918 (U)
                Visa Statistics (FY 2002-August 2012),Oct. 4, 2012, available at
                https://www.uscis.gov////USCIS//%20and%20Studies/Immigration%20Forms%20Data//I914T-I918U-visastatistics-2012-aug.csv
                (last visited Nov. 18, 2020) (reflecting the approval of 5825 U visa
                applications in fiscal year 2009, 10,073 U visa applications in
                fiscal year 2010, 10,088 U visa applications in fiscal year 2011,
                and 8688 U visa applications through the end of June 2012). The
                Department notes that in accordance with applicable law, USCIS
                approves no more than 10,000 principal petitions for U nonimmigrant
                status each year. Previously reported data suggesting a higher
                number of principal petition approvals may be due to system error,
                duplicate counting of replacement employment authorization
                documents, or other systems processing error. See USCIS, Number of
                Form I-198, Petition for U Nonimmigrant Status By Fiscal Year,
                Quarter, and Case Status: Fiscal Years 2009-2020 Apr. 2020,
                available at https://www.uscis.gov/sites/default/files/document/data/I918u_visastatistics_fy2020_qtr2.pdf (last visited Nov. 18,
                2020).
                ---------------------------------------------------------------------------
                IV. Proposed changes
                A. General Considerations
                 As many stakeholders and experts have recognized, improper uses of
                continuances lead to unnecessary case delays that do not benefit a
                respondent with a valid claim,\6\ DHS, or EOIR. See, e.g., U.S.
                Government Accountability Office, Immigration Courts: Actions Needed to
                Reduce Case Backlog and Address Long-Standing Management and
                Operational Challenges 27, June 2017, available at https://www.gao.gov/assets/690/685022.pdf (last visited Nov. 18, 2020) (``DHS attorneys,
                experts, and other stakeholders we spoke with stated that immigration
                judges' frequent use of continuances resulted in delays and increased
                case lengths that contributed to the backlog.''). Consequently, the
                Department believes it is of critical importance to ensure that
                continuances in immigration court proceedings are granted only for
                actual good cause in a consistent and coherent manner, and it is
                proposing to amend its regulations accordingly.
                ---------------------------------------------------------------------------
                 \6\ As the Supreme Court has recognized, ``[o]ne illegally
                present in the United States who wishes to remain . . . has a
                substantial incentive to prolong litigation in order to delay
                physical deportation for as long as possible.'' INS v. Rios-Pineda,
                471 U.S. 444, 450 (1985). Thus, many aliens obtain a perverse
                benefit from the delays in immigration proceedings. Nevertheless,
                unnecessary delays do harm aliens with valid claims. See Human
                Rights First, The U.S. Immigration Court: A Balooning Backlog that
                Requires Action 5, Mar. 15, 2016, available at https://www.humanrightsfirst.org/sites/default/files/HRF-Court-Backlog-Brief.pdf (``Some unauthorized migrants may benefit from the delays
                and remain longer in the country than they should, but those with
                legitimate grounds for relief from removal, such as many asylum
                seekers, remain in limbo for unnecessarily long periods.''')
                (quoting Institute for the Study of International Migration,
                Georgetown University, Detention and Removal: What now and What
                Next?: Report on an experts' roundtable Georgetown University,
                Washington DC, at 13 (2014)) available at https://isim.georgetown.edu/wp-content/uploads/sites//2019/08/DetentionRemovalv10-1.pdf (last visited Nov. 18, 2020). In short,
                unnecessary delays harm the government's interest in efficient
                adjudications and the enforcement of the laws, an alien's interest
                in the timely resolution of his or her case, especially if the alien
                has a valid claim for relief, and the public's interest in the
                prompt administration of justice.
                ---------------------------------------------------------------------------
                 As neither the INA nor 8 CFR 1003.29 articulate a clear definition
                of ``good cause,'' the Board and the Attorney General have pronounced
                multi-factored tests for adjudicators to use to determine whether to
                grant or deny a motion for a continuance. See, e.g., Matter of L-N-Y-,
                27 I&N Dec. at 758; Matter of L-A-B-R-, 27 I&N Dec. at 413-19; Matter
                of Rajah, 25 I&N Dec. at 130, 135-38; Matter of Hashmi, 24 I&N Dec. at
                790; Matter of Sibrun, 18 I&N Dec. at 355-58. In these decisions, the
                Board and the Attorney General sought to articulate or expound upon a
                standard by which ``good cause'' could be judged.
                 The proposed rule adopts the essence of this standard while
                clarifying the instances in which a continuance would or would not be
                warranted in the exercise of discretion. Further, it retains many of
                the primary considerations of previous agency policies. For example, in
                accordance with Matter of L-A-B-R-, the proposed rule would have
                decisionmakers consider the likelihood that the alien would obtain
                collateral relief and whether the relief would materially affect the
                outcome of the proceeding as primary considerations for whether good
                cause is shown, and establishes that good cause has not been shown
                where the relief sought would not materially affect the outcome.
                Compare Matter of L-A-B-R-, 27 I&N Dec. at 413-19 (indicating that
                immigration judges must ``focus principally on two factors: (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[,]'' among other considerations), with 8 CFR
                1003.29(b)(2)(i) (proposed).
                 The proposed rule would also establish a non-exhaustive list of
                factors for an immigration judge to consider whether a particular and
                justifiable need for a continuance has been met, using many of the
                factors applied by the Board in Matter of Hashmi and by the Attorney
                General in Matter of L-A-B-R-. Compare Matter of Hashmi, 24 I&N Dec. at
                790 (laying out six factors, including but not limited to: (1) DHS's
                response to the motion to continue; (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 of status merits a favorable exercise of
                discretion; (5) the reason for the continuance; and (6) any other
                relevant procedural factors), and Matter of L-A-B-R-, 27 I&N Dec. at
                413 (``The immigration judge should also consider 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.''), with 8 CFR 1003.29(b)(1)(i)-(iv)
                (proposed).
                 Further, the proposed rule maintains the general ``due diligence''
                standard, as well as the movant's burden of proof, as factors for an
                immigration judge to consider. Compare Matter of Sibrun, 18 I&N Dec. at
                355-57 (stating that ``an alien at least must make a reasonable showing
                that the lack of preparation occurred despite a diligent good faith
                effort to be ready to proceed and that any additional evidence he seeks
                to present is probative, noncumulative, and significantly favorable to
                the alien'' and that the alien is responsible for ``specifically
                articulat[ing] the particular facts involved or evidence which he would
                have presented, and otherwise fully explain[ing] how denial of his
                motion fundamentally changed the result reached''), with 8 CFR
                1003.29(b)(1), (b)(1)(i) (proposed).
                 Also, the provision of the proposed rule which limits a good cause
                determination where the continuance relates to collateral immigration
                applications is in line with precedent stating that if visa
                availability is too remote, a continuance may not be warranted. Compare
                8 CFR 1003.29(b)(3)(i)(A), (ii) (proposed), with Matter of L-A-B-R-, 27
                I&N Dec. at 418 (``Similarly, because adjustment of status typically
                requires an immediately available visa, INA Sec. 245(a), 8 U.S.C.
                1255(a), good cause does not exist if the alien's visa priority date is
                too remote to raise the prospect of adjustment of status above the
                speculative level.''), Matter of Rajah, 25 I&N Dec. at 136 (``A
                respondent who has a prima facie approvable I-140 and adjustment
                application may not be able to show good cause for a continuance
                because visa availability is too remote.''), and Matter of Quintero, 18
                I&N Dec. at 350 (``Likewise, the immigration judge's refusal to
                continue the hearing until a visa number was available was proper
                because he may neither terminate nor indefinitely adjourn the
                proceedings in order to delay an alien's deportation.''). Thus, the
                elements of the proposed rule are grounded in previous agency rulings
                and precedents regarding continuances for good cause in immigration
                proceedings.
                 In addition, the Attorney General recognized in Matter of L-A-B-R-
                that the good cause standard is often misapplied or misconstrued in
                immigration proceedings, leading to the overuse of continuances. See 27
                I&N Dec. at 411. Whereas continuances may ```promote efficient case
                management,''' see id. at 407 (quoting United States v.
                [[Page 75929]]
                Tanner, 544 F.3d 793, 795 (7th Cir. 2008)), the overuse of continuances
                undercuts their purpose and leads to the unnecessary delay of
                immigration proceedings, see id. at 411. By articulating a clearly-
                defined good cause standard, the Department believes that it will be
                less likely to be misapplied or misconstrued.
                 Finally, an amorphous standard invites inconsistent practices among
                immigration judges and inconsistent results among similarly-situated
                aliens. EOIR currently has over 500 immigration judges see EOIR,
                Immigration Judge Hiring (Oct. 2020), available at https://www.justice.gov/eoir/page/file/1242156/download (last visited Nov. 18,
                2020), and currently there is no consistent practice among them
                regarding many types of frequently-requested continuances. Thus, aliens
                and their representatives seeking similar types of continuances--e.g.,
                time to seek representation or preparation time--often receive varying
                decisions on both the length and number of continuances they receive
                based upon each individual immigration judge's own personal
                understanding of good cause. Further, the current--and comparatively
                inefficient--case-by-case nature of determining good cause, the lack of
                a clear definition of the term, and its consideration through an open-
                ended and largely subjective lens by immigration judges, and the
                necessarily interlocutory posture for addressing continuances that were
                incorrectly granted, all make the subject of good cause for a
                continuance ripe for rulemaking. See Lopez v. Davis, 531 U.S. 230, 244
                (2001) (observing that agency ``is not required continually to revisit
                `issues that may be established fairly and efficienctly in a single
                rule making proceeding''' (quoting Hecker v. Campbell, 461 U.S. 458,
                467 (1983))); Marin-Rodriguez v. Holder, 612 F.3d 591, 593 (7th Cir.
                2010) (``An agency may exercise discretion categorically, by
                regulation, and is not limited to making discretionary decisions one
                case at a time under open-ended standards.'').
                 For these reasons and concerns, the Department proposes, within its
                authority and discretion, a new rule more clearly defining when
                continuances are warranted in immigration court proceedings--and when
                such requests warrant denial in the exercise of discretion--because it
                believes it is of critical importance to ensure that continuances are
                granted only for actual good cause in a consistent and coherent manner.
                 While federal courts have discussed current 8 CFR 1003.29, no
                federal court has limited the reading of the current regulation to one
                specific interpretation of ``good cause'' or ruled out particular
                interpretations of that term as inconsistent with the INA. In fact,
                courts have, when discussing whether good cause existed, often cited
                the Department's existing frameworks favorably. See, e.g., Toure v.
                Barr, 926 F.3d 403, 407-08 (7th Cir. 2019) (discussing and using both
                the Matter of L-A-B-R- and Hashmi frameworks); Flores v. Holder, 779
                F.3d 159, 164 (2d Cir. 2015) (discussing and using the Hashmi factors);
                Ferreira v. U.S. Att'y Gen., 714 F.3d 1240, 1243 (11th Cir. 2013)
                (discussing and using the Board-proposed factors from Hashmi and
                Rajah).
                 Even where courts have considered their own multi-factor tests,
                those courts have not expressly indicated that their framework is
                intended to be the only way to analyze whether good cause exists,
                indicating instead that ``there are no bright-line rules . . . .'' Cui
                v. Mukasey, 538 F.3d 1289, 1295 (9th Cir. 2008). See also, e.g., Ahmed
                v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009); Baires v. INS, 856 F.2d
                89, 92-93 (9th Cir. 1988). Further, all courts continue to maintain the
                general proposition that although certain factors may be considered,
                ``[t]he decision to grant or deny the continuance is within `the sound
                discretion of the judge and will not be overturned except on a showing
                of clear abuse','' indicating that decisions evaluating good cause do
                not purport to make definitive interpretations that would otherwise
                leave no room for agency discretion. Ahmed, 569 F.3d at 1012 (quoting
                Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008)); see
                also C.J.L.G. v. Barr, 923 F.3d 622, 629 (9th Cir. 2019); Cruz Rendon
                v. Holder, 603 F.3d 1104, 1110 (9th Cir. 2010). In short, no court has
                proclaimed a definitive and comprehensive interpretation of when good
                cause exists under 8 CFR 1003.29.
                B. The Proposed Rule
                 In Matter of L-A-B-R-, the Attorney General recognized that the
                ``good cause'' standard is often misapplied in immigration proceedings,
                resulting in the overuse of continuances. See 27 I&N Dec. at 411 (``The
                overuse of continuances in the immigration courts is a significant and
                recurring problem.''). Continuances are an ``important management tool
                for adjudicators,'' intended to promote efficiency by allowing for more
                time in a case where ``it [would] be wasteful and inefficient to plow
                ahead immediately'' due to certain developments in the case, such as
                illness of a key participant. Id. at 407. However, the overuse of
                continuances undermines their purpose and may result in needless delay
                of immigration proceedings. See id. at 411 (``Far from being minor
                procedural matters, unnecessary continuances undermine the detailed
                statutory and regulatory scheme established under the INA.'').
                 Additionally, the Attorney General recognized that good cause
                imposes a clear limitation on the immigration judge's discretion. Id.
                at 407 (stating that ``[t]he good-cause standard is not a mere
                formality that permits immigration judges to grant continuances for any
                reason or no reason at all.''). The ``good cause'' standard provides
                ``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.'' Id. at 406.
                 In light of the unnecessary delays caused by the improper use of
                continuances, the past misinterpretations and misapplications of the
                ``good cause'' standard with respect to continuances, and the limiting
                effect of good cause on an immigration judge's discretion, the
                Department proposes a clearer, more uniform standard to be applied when
                considering good cause for continuances in immigration proceedings.
                Under the proposed rule, good cause generally could be shown when a
                party demonstrates a particular and justifiable need for a continuance.
                The proposed rule would provide immigration judges and the BIA with a
                clear standard by which to determine whether a continuance is warranted
                based on good cause. The Department proposes to place this standard in
                8 CFR 1003.29, which contains the current ``good cause'' provision.
                 Paragraph (a) of the proposed rule's changes to 8 CFR 1003.29 would
                expand upon the language of the current regulation, permitting an
                immigration judge to grant a motion for a continuance for good cause
                shown, provided that the requirements of paragraph (b) are met and that
                the continuance would not cause the adjudication of an asylum
                application by an immigration judge to exceed 180 days in the absence
                of exceptional circumstances. Paragraph (b) of 8 CFR 1003.29, as
                proposed, would provide the minimum standard that must be met in order
                for good cause to exist to grant a motion for a continuance. Consistent
                with current practice, the proposed standard would make clear that the
                burden of demonstrating good cause is
                [[Page 75930]]
                on the party who is requesting that the court take action or that the
                court excuse a prior action. See id.; see also Matter of L-A-B-R-, 27
                I&N Dec. at 413 (``In assessing these factors, the immigration judge
                should also remain mindful that as the party seeking the continuance,
                the alien bears the burden of establishing good cause.'').
                 The proposed standard would require that, to establish good cause,
                a requesting party must be able to offer a particular reason for his or
                her request under the ``particular . . . need for the continuance''
                requirement of paragraph (b). This requirement would codify the
                specificity contemplated by the existing good cause framework. See
                Matter of Sibrun, 18 I&N Dec. at 357 (``[T]he alien must specifically
                articulate the particular facts involved or evidence which he would
                have presented . . . . Finally, all three reasons which counsel
                advances suffer a common defect: They are but bare, unsupported
                allegations lacking the required specific articulation of
                particularized facts and evidence.''). In other words, a party who
                seeks an action that requires a demonstration of good cause would be
                required to show a specific basis for the requested action and not
                merely a generalized desire.
                 In addition, the proposed standard would require that, to establish
                good cause, a requesting party's reason for making the request must be
                ``justifiable.'' Whether a reason for a request is ultimately
                justifiable would depend on specific fairness and efficiency
                considerations at issue in the particular context, see Matter of L-N-Y-
                , 27 I&N Dec. at 759 (``Considering and balancing the relevant primary
                and secondary factors in this case, we agree with the Immigration Judge
                that there was no `good cause' to continue the respondent's proceedings
                to further await the adjudication of his U nonimmigrant visa
                petition.''). The immigration judge should lay out such considerations
                on the record, keeping with current practices. See, e.g., id. at 757-
                60. Thus, although the proposed definition would set forth a generally
                applicable standard for good cause in the context of continuances,
                adjournments, and postponements (collectively ``continuances'' \7\), an
                immigration judge's or the BIA's determination of whether or not an
                action is justifiable would ultimately be decided on a case-by-case
                basis. See Matter of L-A-B-R-, 27 I&N Dec. at 412 (``I conclude that
                under 8 CFR 1003.29, immigration courts should continue to apply a
                multifactor test to assess whether good cause exists for a continuance
                for a collateral proceeding . . . .''). Further, the justifiability
                requirement would be in keeping with existing practice. See, e.g., id.
                at 415 (``Because a delay in an immigration proceeding imposes a burden
                on the immigration judge, DHS, and other aliens pursuing prompt
                hearings, the respondent seeking to avoid a disposition must
                demonstrate that he has a well-founded justification for such
                relief.'').
                ---------------------------------------------------------------------------
                 \7\ The regulations use the terms continuances, adjournments,
                and postponements largely interchangeably, and the same ``good
                cause'' standard governs both continuances under 8 CFR 1003.29 and
                postponements and adjournments under 8 CFR 1240.6 and 1240.45.
                Matter of L-A-B-R-, 27 I&N Dec. at 407 n.1. To eliminate any
                residual confusion, the proposed rule consolidates the location of
                this standard into one regulation, 8 CFR 1003.29, and makes
                conforming edits to 8 CFR 1240.6 and 1240.45 accordingly. Further,
                the proposed rule is not intended to define good cause as it is used
                in any other context outside of 8 CFR 1003.29.
                ---------------------------------------------------------------------------
                 Moreover, in some instances, an alien remains eligible for relief
                even after a removal order has been entered, see e.g., 8 CFR
                214.14(c)(1)(ii), or removal has been effectuated, see e.g., Matter of
                L-N-Y-, 27 I&N Dec. at 760 (``Moreover, as the Immigration Judge noted,
                the respondent may continue to pursue his U visa, even after he is
                removed.''). See also Garcia v. Dep't of Homeland Sec., No. 19-01265,
                2019 WL 7290556, at *6 (N.D. Ill. Dec. 30, 2019) (unpublished) (``The
                governing regulations anticipate that petitioners for U-visas may not
                be present in the United States when their petitions are adjudicated or
                could be removed from the United States during the pendency of the
                petitions.''); accord Alvarez-Espino v. Barr, 959 F.3d 813, 818 (7th
                Cir. 2020) (``USCIS will process the [U visa] application whether or
                not Alvarez-Espino has a final order of removal against him. . . .
                Because Alvarez-Espino can continue to pursue every immigration benefit
                he seeks, the Board did not abuse its discretion in denying his motion
                for remand or for a continuance.''). In such instances, the mere
                conceivability of relief prior to the issuance of a removal order would
                hardly establish good cause for delaying the proceedings, because no
                continuance would be necessary to preserve the alien's ability to
                pursue the collateral matter with another agency. Thus, an alien in
                such circumstances could not demonstrate a particular and justifiable
                need for the continuance because the alien could continue to pursue
                whatever collateral matter he seeks regardless of whether the
                continuance is granted.
                 To demonstrate good cause for a continuance under the proposed
                rule, an alien who seeks a continuance would first have to clearly
                specify his or her reason for requesting it. See Matter of Sibrun, 18
                I&N Dec. at 357 (``[T]he alien must specifically articulate the
                particular facts involved or evidence which he would have presented . .
                . .''). Next, the alien would have to show that the continuance is
                warranted by a particular and justifiable need. See id. at 356-57
                (``Second, for purposes of appeal, even where an alien has made this
                minimum required showing, an immigration judge's decision denying the
                motion for continuance will not be reversed unless the alien
                establishes that that denial caused him actual prejudice and harm and
                materially affected the outcome of his case.''); cf. Matter of Garcia-
                Reyes, 19 I&N Dec. 830, 832 (BIA 1988) (no good cause for a continuance
                to demonstrate rehabilitation when ``[t]here was no showing that the
                respondent was eligible for any form of relief from deportation for
                which rehabilitation would be relevant'').
                 With over 1.2 million cases currently pending, EOIR, Pending Cases,
                New Cases, and Total Completions (July 14, 2020), available at https://www.justice.gov/eoir/page/file/1242166/download (last visited Nov. 18,
                2020), it is imperative that the Department ensures that immigration
                cases are completed in a timely manner. See also EOIR, Memorandum from
                the Attorney General to the EOIR, Renewing Our Commitment to the Timely
                and Efficient Adjudication of Immigration Cases to Serve the National
                Interest, at 2 (Dec. 5, 2017), available at https://www.justice.gov/eoir/file/1041196/download (last visited Nov. 18, 2020) (``The timely
                and efficient conclusion of cases serves the national interest.
                Unwarranted delays and delayed decision making do not.''). Because
                continuances place stress on one of EOIR's scarcest resources--docket
                time--and in light of the growing pressures created by new cases driven
                by continued influxes of illegal immigration, the Department believes
                it is essential to ensure that continuances are used properly and in a
                consistent manner. See U.S. Government Accountability Office,
                Immigration Courts: Actions Needed to Reduce Case Backlog and Address
                Long-Standing Management and Operational Challenges (June 1, 2017) at
                27, 68, 69 available at https://www.gao.gov/assets/690/685022.pdf (last
                visited Nov. 18, 2020) (``DHS attorneys, experts, and other
                stakeholders we spoke with stated that immigration judges' frequent use
                of continuances resulted in delays and increased case lengths that
                contributed
                [[Page 75931]]
                to the backlog. . . . Our analysis . . . showed that the use of
                continuances has grown over time and that, on average, cases that
                experience more continuances take longer to complete. . . . We also
                found that the percentage of completed cases which had multiple
                continuances increased . . . and that, on average, cases with multiples
                continuances took longer to complete than cases with no or fewer
                continuances.'').
                 The Department does not foresee circumstances under which a
                continuance would be justifiable if an alien is unlikely to receive the
                collateral relief requested or, if granted, the collateral relief would
                not materially affect the outcome of the removal proceedings, and these
                two factors would continue to serve as important considerations for
                adjudicators.\8\ See Matter of L-A-B-R-, 27 I&N Dec. at 413.
                ---------------------------------------------------------------------------
                 \8\ ``As with any balancing analysis requiring consideration of
                multiple factors, a respondent's strength on certain factors may
                compensate for a weaker showing on others.'' Matter of L-A-B-R-, 27
                I&N Dec. at 417. For example, ``[a] respondent who makes a
                compelling case that he will receive collateral relief and
                successfully adjust status may receive a continuance even if, for
                instance, he has already received previous continuances.'' Id.
                However, ``because the respondent's likelihood of success in the
                collateral matter is paramount, a truly weak showing on that front
                may be dispositive.'' Id. Additionally, ``[i]n some cases, it will
                be impossible or too uncertain that the respondent will succeed in
                the collateral proceeding itself.'' Id. Consistent with the idea
                that a ``compelling'' case that an alien will receive collateral
                relief may warrant a continuance, Matter of L-A-B-R-, 27 I&N Dec. at
                417, the Department proposes to apply a ``clear and convincing''
                evidentiary standard in assessing whether a respondent has made a
                sufficient showing of the likelihood of obtaining collateral relief
                in order to obtain a continuance based on a collateral matter. Such
                a standard recognizes that neither a prima facie showing of
                eligibility for relief, Matter of L-N-Y-, 27 I&N Dec. at 757-58, nor
                the mere conceivability of possible relief, Matter of L-A-B-R-, 27
                I&N Dec. at 414, is dispositive regarding whether a continuance
                should be granted. It is also consistent with the statutory standard
                for eligibility for one of the most common collateral matters
                arising in immigration proceedings, a request to continue the case
                of an alien who has married a United States citizen or lawful
                permanent resident while in removal proceedings in order to await
                the adjudication of an immigrant visa petition based on the
                marriage. See INA 245(e), 8 U.S.C. 1255(e) (requiring proof by
                ``clear and convincing evidence'' of a bona fide marriage during
                removal proceedings between an alien and a United States citizen or
                lawful permanent resident in order for the alien to avoid having to
                reside outside the United States for two years before the immigrant
                visa petition can be approved).
                ---------------------------------------------------------------------------
                 However, a continuance would most likely not be justifiable solely
                because a collateral matter ``could conceivably provide relief from
                removal.'' Matter of L-A-B-R-, 27 I&N Dec. at 414. Indeed, if this were
                the standard for good cause, then every continuance request for a
                collateral matter would demonstrate good cause, because most such
                requests posit at least a theoretical possibility of obtaining relief.
                The standard in proposed paragraph (b)(2)(i) comports with the recent
                direction of the Attorney General that motions for continuances should
                be granted only sparingly. See Matter of L-A-B-R-, 27 I&N Dec. at 407
                (asserting that, in the course of ordinary litigation, the burden
                placed on proceedings ``counsels against continuances except for
                compelling reasons'') (citing Morris v. Slappy, 461 U.S. 1, 11 (1983)).
                Although these two factors are important, most continuance requests to
                allow for collateral matters allege a likelihood of obtaining the
                collateral relief, and nearly all such requests posit that the
                collateral matter would materially impact the proceedings--otherwise
                there would be no need to seek the collateral matter. Thus, the
                proposed rule notes that although these two factors are significant,
                adjudicators should also consider other factors: ``(i) The amount of
                time the movant has had to prepare for the hearing and whether the
                movant has exercised due diligence to ensure preparedness for that
                hearing; (ii) The length and purpose of the requested continuance,
                including whether the reason for the requested continuance is dilatory
                or contrived; (iii) Whether the motion is opposed and the basis for the
                opposition, though the opponent does not bear the burden of
                demonstrating an absence or lack of good cause; (iv) Implications for
                administrative efficiency; and (v) Any other relevant factors for
                consideration.'' Compare id., with Matter of L-A-B-R-, 27 I&N Dec. at
                413 (``The immigration judge should also consider 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.'').
                 A continuance would most likely not be justifiable where the alien
                ``appears to be seeking interim relief as a way of delaying the
                ultimate disposition of the case'' or has not taken practicable
                measures to proceed at the scheduled hearing, such as ``pursuing
                collateral relief in advance of the noticed hearing date.'' Matter of
                L-A-B-R-, 27 I&N Dec. at 413. A continuance would also not likely be
                justifiable where the alien expresses an intention to file for
                collateral relief at a future date or where the alien has unreasonably
                delayed filing for collateral relief. Id. at 416. Through the proposed
                rule, the Department indicates that, subject to an exception, a request
                for a continuance in order to later apply for a visa generally would
                not constitute good cause. To the contrary, an alien should generally
                exercise diligence in any activity that forms the basis of the
                continuance request, and a lack of such diligence undermines a putative
                showing of good cause. Cf. Mazariegos-Paiz v. Holder, 734 F.3d 57, 66
                (1st Cir. 2013) (``Parties have an obligation to exercise due diligence
                in marshaling evidence. Viewed in this light, the IJ's denial of the
                petitioner's mid-trial request for a continuance was not an abuse of
                discretion.''); Perez-Mirachal v. Att'y Gen., 275 F. App'x 141, 144 (3d
                Cir. 2008) (unpublished) (``We conclude that the Immigration Judge did
                not abuse his discretion in denying the motion for a continuance. At
                the time the motion for continuance was filed, Perez-Mirachal had not
                yet filed any motions challenging his conviction in the criminal
                court.''); Matter of Sibrun, 18 I&N Dec. at 357-58 (``Accordingly, we
                find that counsel has failed to establish that after more than 3 months
                of representing the applicant she reasonably could not have been
                prepared to proceed . . . .'').
                 The proposed rule also would clarify that seeking collateral action
                in the form of an exercise of prosecutorial discretion, which is solely
                within the purview of DHS and is beyond the authority of the
                immigration judge to grant, does not warrant continuing the
                proceedings. See 8 CFR 1003.29(b)(2)(ii). There is no need to continue
                a case in order to seek parole, deferred action, or the exercise of
                prosecutorial discretion by DHS, because such actions are far beyond
                the authority of an immigration judge to grant and may be granted by
                DHS at any time regardless of whether immigration proceedings are
                pending. See also Matter of W-Y-U-, 27 I&N Dec. 17, 19 (BIA 2017)
                (``The role of the Immigration Courts and the Board is to adjudicate
                whether an alien is removable and eligible for relief from removal in
                cases brought by the DHS. We lack the authority to review the DHS's
                decision to institute proceedings, which involves the exercise of
                prosecutorial discretion.'') (citing Matter of G-N-C-, 22 I&N Dec. 281,
                284 (BIA 1998)), overruled by Matter of Castro-Tum, 27 I&N Dec. 271
                (A.G. 2018); \9\ see,
                [[Page 75932]]
                e.g., Matter of Quintero, 18 I&N Dec. at 350 (``Furthermore, since the
                respondent can request deferred action status at any stage in the
                proceedings, the immigration judge did not err in refusing to adjourn
                the hearing to allow him to pursue that relief.''); cf. Matter of
                Yazdani, 17 I&N Dec. 626, 630 (BIA 1981) (same). Since the exercise of
                prosecutorial discretion is a matter within the exclusive jurisdiction
                of the DHS, it follows that in considering administrative closure, an
                immigration judge cannot review whether an alien falls within the DHS's
                enforcement priorities or will actually be removed from the United
                States. See Matter of Quintero, 18 I&N Dec. at 350 (stating that
                ``deferred action status is a function of the District Director's
                prosecutorial authority,'' which neither Immigration Judges nor the
                Board can review); cf. Matter of P-C-M-, 20 I&N Dec. 432, 434 (BIA
                1991) (stating that the likelihood that an alien will be deported is
                not a factor to be considered in a bond determination), overruled on
                other grounds by Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018);
                Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 505 (BIA 1980) (``Once
                deportation proceedings are commenced, the immigration judge must order
                deportation if the evidence supports the charge.'').
                ---------------------------------------------------------------------------
                 \9\ Matter of Castro-Tum itself has been abrogated within the
                Fourth and Seventh Circuits, though it continues to apply to
                immigration proceedings outside those circuits. See Romero v. Barr,
                937 F.3d 282, 292-94 (4th Cir. 2019); Morales v. Barr, 963 F.3d 629,
                639-40 (7th Cir. 2020). The Department also recently proposed
                rulemaking to codify the principle, consistent with both Matter of
                Castro-Tum and other regulations, that immigration judges and
                appellate immigration judges lack free-floating authority to
                administratively close cases. See Appellate Procedures and
                Decisional Finality in Immigration Proceedings; Administrative
                Closure, 85 FR 52491, 52503-04 (Aug. 26, 2020).
                ---------------------------------------------------------------------------
                 Further, the Department remains committed to ensuring that
                adjudicators follow statutory directives, including relevant timelines
                reflecting clear Congressional expectations that certain types of cases
                would be adjudicated within clear time parameters. See, e.g., INA
                208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii) (stating that ``in the
                absence of exceptional circumstances, final administrative adjudication
                of the asylum application, not including administrative appeal, shall
                be completed within 180 days after the date an application is filed'').
                To that end, the proposed rule would clarify that good cause is not
                established when a continuance request would cause an immigration court
                to exceed a statutory or regulatory adjudication deadline, unless the
                request meets any exception to those deadlines.
                 The proposed rule also addresses common contexts for continuance
                requests in order to provide adjudicators with clearer standards and
                guidance. For instance, the proposed rule discusses continuances based
                on collateral immigration applications, proposing that ``a continuance
                request to allow an alien or a petitioner to apply for an immigrant
                visa or to wait for an immigrant visa for which the alien is the
                beneficiary to become available'' generally would not demonstrate good
                cause.
                 This default standard is in line with the current framework, which
                provides that because adjustment of status generally requires an
                immediately available visa, good cause does not exist if the alien's
                priority date or visa eligibility is too remote. See, e.g., Matter of
                L-A-B-R-, 27 I&N Dec. at 418 (``Similarly, because adjustment of status
                typically requires an immediately available visa, INA 245(a), 8 U.S.C.
                1255(a), good cause does not exist if the alien's visa priority date is
                too remote to raise the prospect of adjustment of status above the
                speculative level.''); Matter of Quintero, 18 I&N Dec. at 350 (``[T]he
                fact that the respondent has an approved visa petition does not entitle
                him to delay the completion of deportation proceedings pending
                availability of a visa number.'').
                 Notwithstanding the general rule, the Department recognizes there
                may be situations in which it is appropriate to continue a case to
                await the adjudication of an immigrant visa petition by USCIS.
                Consequently, the proposed rule contains an exception that may
                establish good cause. To fall within the exception, the motion for a
                continuance would need to satisfy the three elements of that exception.
                Id.
                 First, the proposed rule requires the approval of the visa
                application or petition to provide ``an immediately-available visa to
                the alien'' or ``a visa to the alien with a priority date six months or
                less from the immediate action application date provided in the Visa
                Bulletin published by the Department of State for the month in which
                the continuance request is made,'' in recognition that an application
                for adjustment of status generally requires an immediately available
                visa at the time an application is filed. See, e.g., INA 245(a)(3),
                (i)(2)(B), 8 U.S.C. 1255(a)(3), (i)(2)(B).
                 Acknowleding that certain circumstances the likelihood of an
                immigrant visa being available is no longer remote or speculative, even
                if it is not quite immediately available. Case law has not defined how
                near or remote visa availability should be to support a finding of good
                cause, however. Matter of L-A-B-R-, 27 I&N Dec. at 418 (``Similarly,
                because adjustment of status typically requires an immediately
                available visa, INA 245(a), 8 U.S.C. 1255(a), good cause does not exist
                if the alien's visa priority date is too remote to raise the prospect
                of adjustment of status above the speculative level.''); Matter of
                Rajah, 25 I&N Dec. at 136 (``A respondent who has a prima facie
                approvable I-140 and adjustment application may not be able to show
                good cause for a continuance because visa availability is too
                remote.''); Matter of Quintero, 18 I&N Dec. at 350 (``In any case, the
                fact that the respondent has an approved visa petition does not entitle
                him to delay the completion of deportation proceedings pending
                availability of a visa number.''). Consequently, individual
                adjudicators may take different views regarding how remote is too
                remote to warrant a continuance, which in turn may lead to inconsistent
                results for otherwise similarly-situated aliens. Thus, the proposed
                rule would establish a clear, uniform boundary for remoteness based on
                the Visa Bulletin published every month by the Department of State. See
                22 CFR 42.51(b) (providing for the allocation of immigrant visa numbers
                by the Department of State). Although the priority dates in the Visa
                Bulletin do not always move at predictable intervals, the Department
                believes that using a date six months or less from the priority date
                reflected in the Visa Bulletin for filing visa applications \10\ for
                the month in which the continuance request is made represents the
                clearest and most appropriate boundary for assessing remoteness for
                purposes of determining whether good cause exists. In particular, using
                a date no later than six months after the priority date calculated by
                the Department of State ``justifying immediate action in the
                application process,'' see, e.g., U.S. Department of State, Visa
                Bulletin for September 2020, No. 38 vol. X, available at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2020/visa-bulletin-for-september-2020.html (last visited Oct. 26, 2020), as
                the cutoff for assessing remoteness strikes the right balance between
                providing a reasonable opportunity for an alien to obtain visa-based
                relief and avoiding indeterminate
                [[Page 75933]]
                delays based on visas that may not be current for a significant period
                of time.
                ---------------------------------------------------------------------------
                 \10\ The Visa Bulletin contains two charts of priority dates for
                each broad category of visas, family-based and employment-based.
                See, e.g., U.S. Department of State, Visa Bulletin for September
                2020, No. 38 vol. X, available at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2020/visa-bulletin-for-september-2020.html (last visited Oct. 26, 2020). The first chart
                lists final action dates, i.e., visas with a priority date earlier
                than the date on the final action chart are available. The second
                chart reflects dates for filing visa applications within a timeframe
                justifying immediate action in the application process. The dates in
                the second chart are generally later than the first, and applicants
                for immigrant visas who have a priority date earlier than the
                application date in the second chart may assemble and submit
                required documents to the Department of State's National Visa
                Center.
                ---------------------------------------------------------------------------
                 Second, to establish good cause for a continuance related to an
                immigrant visa, an alien would need to demonstrate a prima facie
                eligibility for that visa and, if applicable, for adjustment of status
                and any necessary waiver(s) based on the visa approval, including
                establishing reason, as a matter of discretion, for adjustment of
                status and granting of any necessary waivers. This requirement is in
                line with the Department's past frameworks, which considered ``whether
                the underlying visa petition [wa]s prima facie approvable.'' Matter of
                L-A-B-R-, 27 I&N Dec. at 414 (``Three of the five main good-cause
                factors enumerated in Hashmi and Rajah pertained to the likelihood of
                these efforts' success: `whether the underlying visa petition is prima
                facie approvable[.]' ''); see also Matter of Rajah, 25 I&N Dec. at 130
                (citing the factors in Matter of Hashmi, including prima facie
                approvability of the underlying visa petition, in assessing whether a
                continuance is warranted to await the adjudication of a pending
                employment-based visa petition); Matter of Hashmi, 24 I&N Dec. at 790
                (``In determining whether to continue proceedings to afford the
                respondent an opportunity to apply for adjustment of status premised on
                a pending visa petition, a variety of factors may be considered,
                including . . . whether the underlying visa petition is prima facie
                approvable[.]'').
                 Third, to establish good cause for a continuance related to an
                immigrant visa, the request must establish that the immigration judge
                has jurisdiction over any application for adjustment of status,
                including any necessary waivers in conjunction with that application,
                based on approval of the underlying visa. This requirement recognizes
                both the futility and the waste of scarce resources associated with
                continuing a case for an issue over which an immigration judge
                ultimately lacks any authority to provide relief, as well as the
                reality, discussed supra, that many forms of relief remain available to
                aliens even if their removal proceedings have concluded. See, e.g.,
                Alvarez-Espino, 959 F.3d at 818 (``USCIS will process the [U-visa]
                application whether or not Alvarez-Espino has a final order of removal
                against him. . . . Because Alvarez-Espino can continue to pursue every
                immigration benefit he seeks [outside of removal proceedings], the
                Board did not abuse its discretion in denying his motion for remand or
                for a continuance.'').
                 The Board has previously recognized that many reasons militate
                against granting a motion to reopen based on an underlying application
                over which an immigration judge and the Board lack jurisdiction:
                 As a practical matter, Immigration Judges and the Board have
                limited and finite adjudicative and administrative resources, and
                those resources are best allocated to matters over which we do have
                jurisdiction. Among the costs of reopening final proceedings in
                cases such as the one before us, where we have no [authority] over
                the underlying relief requested, are the practical and
                administrative difficulties associated with maintaining open cases
                that would rely on outside considerations and would become part of
                already-crowded dockets. Immigration Judges, for example, would be
                required to schedule and oversee matters over which they play no
                substantive role, because the cases would once again be on their
                docket. If the application is ultimately denied, the Immigration
                Judge is placed in the position of having to enter a further order
                or decision that simply sets forth information provided by others,
                assuming such information is actually provided to the Immigration
                Judge in a timely manner. There would be nothing to preclude the
                respondent from filing an appeal to the Board from such an order,
                unnecessarily adding to our pending case load, and despite the fact
                that we would have no review authority over aspects of that
                decision.
                 Matter of Yauri, 25 I&N Dec. 103, 110-11 (BIA 2009).\11\
                ---------------------------------------------------------------------------
                 \11\ The Department notes that in Singh v. Holder, 771 F.3d 647
                (9th Cir. 2014), the Ninth Circuit held that the Board possessed sua
                sponte authority to reopen a proceeding involving an application
                over which it lacked jurisdiction and to effectively grant a stay of
                removal, notwithstanding its decision in Matter of Yauri. See Singh,
                771 F.3d at 652. Singh, however, did not address the Board's
                determination in Yauri that it would not exercise its discretion--
                even with its sua sponte authority--to reopen cases involving
                applications over which it lacked authority. Compare id. at 653
                (``Because the BIA denied Singh's motion only for lack of authority,
                we grant the petition and remand to the BIA.''), with Matter of
                Yauri, 25 I&N Dec. at 110 (``Finally, and separately from any
                question of jurisdiction, with regard to untimely or number-barred
                motions to reopen, we conclude that sua sponte reopening of
                exclusion, deportation, or removal proceedings pending a third
                party's adjudication of an underlying application that is not itself
                within our [authority] ordinarily would not be warranted as a matter
                of discretion.'')). Singh also did not address the availability of a
                stay of removal from DHS in circumstances in which DHS has sole
                authority over the application at issue. See generally 8 CFR 241.6.
                Singh is binding only within the Ninth Circuit, and its
                jurisdictional holding regarding the Board is inapplicable to the
                proposed rule. Moreover, the Department does not find its reasoning
                persuasive enough to graft onto the proposed rule so as to establish
                immigration judge authority to indefinitely stay removal
                proceedings.
                ---------------------------------------------------------------------------
                 Although the Board recognized that these considerations may be
                different for pending proceedings, it did so, in part, with the
                understanding that the Department would engage in rulemaking on the
                issue, which the proposed rule now does. Id. at 111 n.8. Consequently,
                it did not purport to settle the issue of the appropriateness of
                continuances in situations in which the immigration judge lacks
                jurisdiction over the underlying application. Id. (``Thus, while we
                acknowledge the arguments raised surrounding the question whether
                proceedings can or should be continued when an arriving alien's
                adjustment application is pending with the USCIS, our decision in this
                case does not resolve that issue.''). Moreover, as the Board noted, an
                alien with an application pending before DHS may request a stay of
                removal, if necessary, to await the adjudication of a collateral
                application. See id. at 112; 8 CFR 241.6(a). The potential availability
                of a stay of removal from DHS further diminishes any need to keep
                immigration proceedings open in circumstances in which an immigration
                judge or the Board can take no action on a collateral application.
                 Allowing immigration judges to continue cases for applications over
                which they lack jurisdiction--and, thus, for which they can take no
                action other than to continue proceedings for an uncertain and unknown
                amount of time--is also tantamount to granting either deferred action,
                an indefinite continuance, an exercise of prosecutorial discretion, or
                an indefinite stay of proceedings, especially because there is no
                prohibition on an alien filing repeated applications. Such action is
                contrary to established case law. See Matter of Silva-Rodriguez, 20 I&N
                Dec. 448, 449-50 (BIA 1992) (undue delay by an immigration judge may
                frustrate or circumvent statutory purpose of prompt immigration
                proceedings); Matter of Quintero, 18 I&N Dec. at 350 (an immigration
                judge ``may neither terminate nor indefinitely adjourn the proceedings
                in order to delay an alien's deportation'' and ``[o]nce deportation
                proceedings have been initiated by the District Director, the
                immigration judge may not review the wisdom of the District Director's
                action, but must execute his duty to determine whether the deportation
                charge is sustained by the requisite evidence in an expeditious
                manner.''); Matter of Roussis, 18 I&N Dec. 256, 258 (BIA 1982) (``It
                has long been held that when enforcement officials . . . choose to
                initiate proceedings against an alien and to prosecute those
                proceedings to a conclusion, the immigration judge is obligated to
                order deportation if the evidence supports a finding of deportability
                on the ground charged.''); see also Matter of Yazdani, 17 I&N Dec. 626,
                630 (BIA 1991) (``However, so long as the enforcement officials . . .
                choose
                [[Page 75934]]
                to initiate proceedings against an alien and to prosecute those
                proceedings to a conclusion, the immigration judge and the Board must
                order deportation if the evidence supports a finding of deportability
                on the ground charged.''). It also infringes on DHS's authority to
                enforce the immigration laws, see generally INA 103(a)(1), 8 U.S.C.
                1103(a)(1), and DHS's prosecutorial discretion to determine which cases
                should proceed and which ones should be terminated or paused for a
                significant amount of time. See Matter of Quintero, 18 I&N Dec. at 350
                (``Consequently, the prosecutorial discretion exercised in granting
                deferred action status is committed exclusively to [now DHS]
                enforcement officials. . . . Inasmuch as deferred action status is a
                function of the District Director's prosecutorial authority, neither
                the immigration judge nor the Board may grant such status or review a
                decision of the District Director to deny it.''); cf. Lopez-Telles v.
                INS, 564 F.2d 1302, 1304 (9th Cir. 1977) (``Rather, these decisions
                plainly hold that the immigration judge is without discretionary
                authority to terminate deportation proceedings so long as enforcement
                officials . . . choose to initiate proceedings against a deportable
                alien and prosecute those proceedings to a conclusion. The immigration
                judge is not empowered to review the wisdom of the [now DHS] in
                instituting the proceedings. . . . This division between the functions
                of the immigration judge and those of [now DHS] enforcement officials
                is quite plausible and has been undeviatingly adhered to by the [now
                DHS].'').
                 In short, the Department finds that the practical resource concerns
                associated with reopening proceedings for applications over which an
                immigration judge lacks jurisdiction apply equally to continuance
                requests in the same circumstances and that those concerns outweigh any
                minimal potential benefit to an alien in seeking a stay of pending
                proceedings from an immigration judge, particularly because aliens may
                seek a stay of removal from DHS if necessary.\12\ Cf. Matter of Yauri,
                25 I&N Dec. at 111 (``Given our lack of jurisdiction over this category
                of adjustment applications, and because a process exists for requesting
                a stay from the DHS, the administrative and practical costs of
                reopening weigh heavily in our discretionary analysis.'').
                ---------------------------------------------------------------------------
                 \12\ The Department notes that an immigration judge's decision
                is generally subject to appeal, 8 CFR 1003.1(b)(3), that the current
                median time to decide a typical appeal is 323 days, see Appellate
                Procedures and Decisional Finality in Immigration Proceedings;
                Administrative Closure, 85 FR 52491, 52508 n.39 (Aug. 26, 2020), and
                that most aliens who are not in custody during their removal
                proceedings are not immediately detained by DHS once those
                proceedings conclude. Thus, even without a continuance from an
                immigration judge, most, if not all, aliens will have ample time to
                obtain a decision on any collateral application before even needing
                to seek a stay of removal.
                ---------------------------------------------------------------------------
                 The proposed rule discusses other restrictions related to this
                general rule for immigrant visas and the noted exception. For instance,
                the approval of a visa petition or application contemplated in the
                general rule and the exception does not include interim relief, prima
                facie determinations, parole, deferred action, bona fide determinations
                or any similar dispositions short of final approval of the visa
                application or petition because these are examples of disposition[s]
                short of final approval that do not demonstrate good cause. These
                restrictions are in line with the general admonition against
                continuances based on relief that is speculative. See, e.g., Matter of
                L-A-B-R-, 27 I&N Dec. at 418 (``Similarly, because adjustment of status
                typically requires an immediately available visa, INA 245(a), 8 U.S.C.
                1255(a), good cause does not exist if the alien's visa priority date is
                too remote to raise the prospect of adjustment of status above the
                speculative level.''); Matter of Quintero, 18 I&N Dec. at 350 (``[T]he
                fact that the respondent has an approved visa petition does not entitle
                him to delay the completion of deportation proceedings pending
                availability of a visa number'').
                 Further, the proposed rule would also provide that an immigration
                judge may not grant a continuance to an alien in removal proceedings
                based on a visa application or petition based on a marriage entered
                into during any pending administrative or judicial proceedings
                regarding the alien's right to be admitted or remain in the United
                States, including during the pending removal proceedings, unless the
                alien establishes by clear and convincing evidence that the marriage
                was entered into in good faith and in accordance with the laws of the
                place where the marriage took place and the marriage was not entered
                into for the purpose of procuring the alien's admission as an immigrant
                and no fee or other consideration was given (other than a fee or other
                consideration to an attorney for assistance in preparation of a lawful
                petition) for the filing of the petition or application. This
                restriction, which reflects the statutory prohibition in section 245(e)
                of the Act, 8 U.S.C. 1255(e), on granting adjustment of status based on
                marriages entered into during immigration proceedings unless the alien
                establishes, inter alia, that the marriage was entered into in good
                faith, also adheres to precedent regarding the need to establish prima
                facie eligibility for relief in order to obtain a continuance for a
                collateral matter related to that relief. See Matter of L-A-B-R-, 27
                I&N Dec. at 413-18; cf. Matter of Velarde-Pacheco, 23 I&N Dec. 253, 256
                (BIA 2002) (``[A] properly filed motion to reopen may be granted, in
                the exercise of discretion, to provide an opportunity to pursue an
                application for adjustment where . . . the motion presents clear and
                convincing evidence indicating a strong likelihood that the
                respondent's marriage is bona fide . . . .''), modified on other
                grounds by Matter of Lamus-Pava, 25 I&N Dec. 61 (BIA 2009). It would
                further acknowledge that potential fraud or dilatory tactics go to the
                viability of the visa petition and the ultimate discretionary
                consideration of any subsequent application, such that a continuance
                may be unwarranted because the relief is too speculative or even
                prohibited outright. See Matter of Hashmi, 34 I&N Dec. at 792 (``If
                other visa petitions filed on the respondent's behalf have been denied,
                those petitions and the USCIS's determinations could also be presented
                and considered. These prior filings or other evidence of potential
                fraud or dilatory tactics may impact the viability of the visa petition
                underlying the motion.''); see also Pedreros v. Keisler, 503 F.3d 162,
                166 (2d Cir. 2007) (finding no abuse of discretion when a continuance
                was denied because there was ``no basis to conclude that the denial of
                the I-130 petition had any likelihood of being overturned on appeal'');
                Morgan v. Gonzales, 445 F.3d 549, 552 (2d Cir. 2006) (finding that
                there was no abuse of discretion when a continuance was denied for the
                adjudication of a second visa petition when the first ``stemm[ed] from
                a marriage that had already been determined to lack bona fides'').
                 In addition to the general rule and exception regarding
                continuances based on immigrant visa applications or petitions, the
                proposed rule contains a similar general rule and exception for non-
                immigrant visas, such as a U visa, premised on similar concerns. A
                continuance request to apply for a non-immigrant visa or to wait for a
                non-immigrant visa to become available, including any applicable
                waiver, would not demonstrate good cause unless the receipt of the non-
                immigrant visa, including any applicable waiver, vitiates or would
                vitiate all grounds of removability with which the alien has been
                charged and the alien demonstrates that final approval of the visa
                application or petition and receipt
                [[Page 75935]]
                of the actual visa, including approval and receipt of any applicable
                waiver, has occurred or will occur within six months of the request for
                a continuance. As with continuance requests based on immigrant visas,
                the receipt of interim relief, prima facie determinations, parole,
                deferred action, bona fide determinations or any similar dispositions
                short of approval of the actual visa application or petition would not
                constitute receipt of the actual visa or evidence that the actual visa
                will be received within six months of the request for a continuance.
                These provisions also align with the general admonition against
                continuances to await collateral matters that are speculative or
                remote. See Matter of L-A-B-R-, 27 I&N Dec. at 418.\13\
                ---------------------------------------------------------------------------
                 \13\ As discussed supra, Matter of Sanchez Sosa, 25 I&N Dec.
                807, had no occasion to consider the impact of the remoteness of a
                non-immigrant visa on the alien's continuance request. The other
                factors considered by the Board in Matter of Sanchez Sosa in
                determining the appropriateness of a continuance to await a non-
                immigrant visa are generally subsumed within the proposed rule.
                Accordingly, the proposed rule does not deviate from Matter of
                Sanchez Sosa, but rather clarifies it in the context of non-
                immigrant visas whose availability is remote.
                ---------------------------------------------------------------------------
                 The proposed rule also would address continuance requests regarding
                discrete collateral non-visa adjudications by DHS--e.g., the
                adjudication of an asylum application filed with DHS by an alien who
                has been determined to be a genuine unaccompanied alien child in
                proceedings pursuant to section 208(b)(3)(C) of the Act, 8 U.S.C.
                1158(b)(3)(C), the adjudication of a Form I-751 waiver filed with DHS
                under Matter of Stowers, 22 I&N Dec. 605 (BIA 1999),\14\ or the
                adjudication of an application for Temporary Protected Status (``TPS'')
                by an alien in removal proceedings at the time a country is designated
                for TPS unless the charging document, if established, would render the
                alien ineligible for TPS, 8 CFR 1244.7(d). In these circumstances, DHS
                has initial jurisdiction over the application at issue for an alien in
                immigration proceedings, and if DHS does not grant it, it can be
                renewed before the immigration judge. Consequently, an immigration
                judge may grant such a continuance if (A) the alien has been found
                removable as charged; (B) the alien has established prima facie
                eligibility for the underlying benefit; (C) the alien has provided
                evidence that the application has been filed with DHS and remains
                pending with DHS; (D) DHS has initial jurisdiction over the application
                at issue even for an alien in immigration proceedings; (E) there are no
                other applications pending before the immigration judge; and (F) the
                non-approval of the application would transfer jurisdiction to the
                immigration judge to review and adjudicate the application. This part
                of the proposed rule would not only recognize the existence of various
                applications over which DHS and the Department share jurisdiction, but
                also that DHS exercises initial jurisdiction even while the alien is in
                removal proceedings before the Department, and it promotes the
                efficient movement of cases on EOIR's docket. It also exemplifies a
                situation where ``an impending factual development [would] alter the
                course of the case,'' such that it would be ``wasteful and inefficient
                to plow ahead immediately.'' Matter of L-A-B-R-, 27 I&N Dec. at 407. If
                an alien has established prima facie eligibility for a non-visa benefit
                application over which DHS has original jurisdiction, but which may be
                renewed before an immigration judge if not approved by DHS, then the
                Department has an interest in having the non-visa benefit adjudicated
                before proceeding on its own.
                ---------------------------------------------------------------------------
                 \14\ Aliens who receive lawful permanent resident status on a
                conditional basis pursuant to section 216 of the Act, 8 U.S.C.
                1186a, are required to file a petition on Form I-751 to remove the
                conditions within two years of the anniversary of obtaining that
                status. INA 216(d)(2)(A), 8 U.S.C. 1186a(d)(2)(A). Aliens who cannot
                meet the petition requirements may file for a waiver of them under
                certain circumstances, which is also filed on Form I-751. Id.;
                1186a(c)(4). DHS has initial jurisdiction over the waiver
                application, and if DHS does not approve it, it may be renewed
                before an immigration judge. Longstanding Board case law holds that
                where an alien is prima facie eligible for a Form I-751 waiver, the
                alien's proceedings should be continued to allow DHS to adjudicate
                it. See Matter of Stowers, 22 I&N at 613-14.
                ---------------------------------------------------------------------------
                 The proposed rule also addresses another context for continuance
                requests, those related to matters of an alien's representation. Nearly
                two-thirds of all respondents in removal proceedings have
                representation, and nearly ninety percent of those seeking asylum have
                representation, see EOIR, Current Representation Rates (Apr. 15, 2020),
                available at https://www.justice.gov/eoir/page/file/1062991/download;
                thus, it is important for the Department to ensure that representation
                does not undermine the orderly procedure of the immigration courts and
                is not a hindrance to fair and timely adjudications. Moreover, just as
                a criminal defendant ``may not manipulate his right to counsel to
                undermine the orderly procedure of the courts or subvert the
                administration of justice,'' United States v. Thibodeaux, 758 F.2d 199,
                201 (7th Cir. 1985), so, too, an alien in civil immigration proceedings
                cannot manipulate his statutory right to counsel at no expense to the
                government, INA 292, 8 U.S.C. 1362, or any associated due process
                rights recognized by circuit courts to delay proceedings or subvert the
                administration of justice by immigration courts, cf. Gomez-Medina v.
                Holder, 687 F.3d 33, 38 (1st Cir. 2012) (``There is also a strong
                interest in not allowing manipulations of the [immigration] system in
                order to cause delay.''); United States v. Poston, 902 F.2d 90, 96
                (D.C. Cir. 1990) (Thomas, J.) (``[T]he right to counsel cannot be
                insisted upon in a manner that will obstruct an orderly procedure in
                courts of justice, and deprive such courts of the exercise of their
                inherent powers to control the same. The public has a strong interest
                in the prompt, effective, and efficient administration of justice; the
                public's interest in the dispensation of justice that is not
                unreasonably delayed has great force.'' (citations and internal
                quotation marks omitted)). To that end, the proposed rule would lay out
                six contexts for guiding adjudicators in determining whether a
                continuance related to representation establishes good cause.
                 First, the proposed rule provides, ``[a]n immigration judge is not
                required to grant a continuance to any alien in removal proceedings to
                secure representation if the time period described in section 239(b)(1)
                of the [INA] has elapsed and the alien has failed to secure counsel.''
                Second, an immigration judge, would be able to, in his or her
                discretion, grant one continuance for not more than 30 days to allow an
                alien to secure representation if the date of the alien's initial
                hearing occurs less than 30 days after the Notice to Appear's service
                date and the alien demonstrates that dilidgence in seeking
                representation since that date. Consistent with section 239(b) of the
                Act, 8 U.S.C. 1229(b), those two proposed provisions contemplate that
                the Act already grants respondents a reasonable amount of time to
                secure counsel prior to the first hearing, but that additional time may
                be necessary in discrete instances.\15\ Cf. Hidalgo-Disla v.
                [[Page 75936]]
                INS, 52 F.3d 444, 447 (2d Cir. 1995) (finding an immigration judge's
                decision to proceed with a hearing after providing an alien 26 days to
                seek counsel was not erroneous and dismissing as frivolous an appeal
                asserting that it was); Ghajar v. INS, 652 F.2d 1347, 1348-49 (9th Cir.
                1981) (``Ghajar's assertion that she was denied due process because she
                was not granted a second continuance to allow her attorney further time
                to prepare for the deportation hearing is without merit. . . . One full
                month elapsed between the date of the show cause order and the date on
                which the hearing ultimately took place. . . . The immigration judge
                did not abuse his discretion in refusing to grant a second
                continuance.'').
                ---------------------------------------------------------------------------
                 \15\ These proposed rule also adopts a feature of a prior
                regulation that governed immigration court proceedings for
                approximately 30 years and limited aliens to one continuance to seek
                representation unless ``sufficient cause'' for more time was shown.
                See 8 CFR 242.13 (1986) (``A continuance of the hearing for the
                purpose of allowing the respondent to obtain representation shall
                not be granted more than once, unless sufficient cause for the
                granting of more time is shown.''). No reason was given for
                departing from that limitation in the mid-1980s, and there is no
                indication that it was unworkable. See Aliens and Nationality; Rules
                of Proceedings Before Immigration Judges, 50 FR 51693 (Dec. 19,
                1985) and 52 FR 2931 (Jan. 29, 1987) (proposing and then finalizing,
                without substantive discussion, a change to the language in 8 CFR
                242.13 to eliminate the general limitation of only one continuance
                for an alien to seek representation). Moreover, in light of the
                subsequent enactment of section 239(b)(3) of the Act, 8 U.S.C.
                1229(b)(3), the Department believes returning to a variation of the
                prior system best effectuates the intent and purpose of the
                representation-related provisions of the Act by recognizing that the
                Act grants a reasonable amount of time to secure representation but
                that additional time may be necessary in limited circumstances.
                ---------------------------------------------------------------------------
                 Indeed, nothing in that part of the Act prohibits ``the Attorney
                General from proceeding against an alien pursuant to section 240 [8.
                U.S.C. 1229a] if the time period described in paragraph (1) [i.e. ten
                days between the service of a Notice to Appear and the first hearing]
                has elapsed and the alien has failed to secure counsel.'' INA
                239(b)(3), 8 U.S.C. 1229(b)(3). Thus, although aliens possess a
                statutory right to representation at no expense to the government, see
                INA 292, 8 U.S.C. 1362, that right is qualified by Congress's further
                determination that a period of ten days after an alien has been served
                with a Notice to Appear is a sufficient time to allow the alien to seek
                such representation before the intial hearing date in removal
                proceedings, see INA 239(b), 8 U.S.C. 1229(b). Although Congress's
                determination in INA 239(b)(3), 8 U.S.C. 1229(b)(3), may have been
                overlooked in litigation regarding the denial of further continuances
                for an alien to seek representation, the Department declines to ignore
                the clear statutory text of that section in the instant NPRM.
                 Currently, aliens in removal proceedings generally have ample time
                to seek representation if they exercise diligence.\16\ For a detained
                case, the median time between service of the NTA on an alien and filing
                it with an immigration court is 11 days and the median time between the
                receipt of the NTA by an immigration court and the first hearing is 27
                days; for a non-detained case, the comparable medians are 41 and 226
                days, respectively. Thus, most aliens already have a reasonable and
                realistic amount of time to obtain representation. Cf. Matter of C-B-,
                25 I&N Dec. 888, 889-90 (BIA 2015) (aliens should receive a fair
                opportunity to secure counsel).\17\ Nevertheless, the Department
                recognizes that in limited circumstances, an alien exercising diligence
                may need additional time.\18\ Thus, if an alien's hearing occurs less
                than 30 days after the service of the Notice to Appear, and the alien
                demonstrates that he or she was diligent in securing counsel, the
                proposed rule provides that a continuance of up to 30 days may be
                warranted.\19\
                ---------------------------------------------------------------------------
                 \16\ The Department recognizes that not all aliens will obtain
                representation even though they have ample time to seek it. For
                example, some aliens do not secure representation because they do
                not wish to pay the fee charged by a potential representative. Cf.
                Al Khouri v. Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004) (``It would
                be nonsensical to recognize a constitutional entitlement to a
                continuance based on counsel's withdrawal when petitioners
                themselves are responsible for the withdrawal [due to failing to pay
                counsel].''). Further, many representatives, due to ethical or
                professional responsibility obligations, will not take cases of
                aliens who are ineligible for any relief or protection from removal
                (e.g., an alien with an aggravated felony drug trafficking
                conviction who has no fear of persecution or torture in his or her
                home country) because they do not wish to charge money for
                representation when representation will not affect the outcome of
                the proceeding. These situations illustrate only that some aliens
                may not ultimately secure counsel for reasons common to issues of
                representation in all civil cases--i.e., the cost of the
                representation and the strength of the case--not that aliens do not
                generally have ample time to seek representation. See United States
                v. Torres-Sanchez, 68 F.3d 227, 231 (8th Cir. 1995) (``Although
                Torres-Sanchez expressed some frustration over his attempt to obtain
                counsel, that frustration, in our view of the record, stemmed from
                his realization that he faced the inevitable consequence of
                deportation, not from a lack of opportunity to retain counsel. In
                any event, the mere inability to obtain counsel does not constitute
                a violation of due process.'').
                 \17\ The Board has not defined what a reasonable and realistic
                amount of time is for purposes of obtaining representation, and the
                respondent in Matter of C-B- was given only eight days between the
                issuance of an NTA and his first hearing, in apparent contravention
                of section 239(b)(1) of the Act, 8 U.S.C. 1229(b)(1). See Matter of
                C-B-, 25 I&N Dec. at 889. Nevertheless, Matter of C-B- cannot be
                interpreted to contradict the Act, and the Act clearly indicates
                that 10 days between the service of an NTA and the first hearing is
                a sufficient amount of time to obtain representation. See INA
                239(b)(3), 8 U.S.C. 1229(b)(3). Accordingly, the proposed rule is
                not in tension with Matter of C-B- and does not deviate from
                recognizing the statutory parameters for providing time for a
                respondent to obtain representation.
                 \18\ The rule does not countenance additional time, however, in
                situations where an alien initially chooses to proceed without
                counsel and then belatedly reconsiders that decision after being
                found removable. See Michel v. INS, 206 F.3d 253, 259 (2d Cir. 2000)
                (``We cannot require the IJ to postpone a proceeding every time a
                party believes that the hearing is going badly, and, as a result,
                seeks to re-think his or her decision to forego representation.'').
                 \19\ There is no current, consistent practice among immigration
                judges regarding either the number or length of continuances to seek
                representation. Accordingly, the proposed rule would also
                standardize motions practice in this area based on a recognition
                that most aliens have already received a significant amount of time
                to seek counsel prior to their first hearing but that in discrete
                instances, additional time may be necessary. Such standardization
                will benefit both practitioners and adjudicators by making
                procedural expectations both clear and consistent across all cases
                in removal proceedings. It will also ensure that aliens are not
                dilatory in seeking representation. Moreover, the Department
                believes an additional continuance of up to 30 days constitutes a
                reasonable amount of additional time for diligent aliens to continue
                seeking representation, because it would give a diligent alien
                potentially up to 40 days total to seek representation after being
                served with an NTA, which is in line with the minimum median total
                amount of time currently, 38 days.
                ---------------------------------------------------------------------------
                 Third, the proposed rule would provide that good cause may not be
                found on the basis of a representative's assertion that his or her
                workload or obligations in other cases prevent preparation because
                professional responsibility obligations require that representatives do
                not take on no more cases than they can handle. See Operating Policies
                and Procedures Memorandum (OPPM) 17-01, Continuances (Jul. 31, 2017) at
                5-6 (``In addition, frequent or multiple requests for additional
                preparation time based on a practitioner's workload concerns related to
                large numbers of other pending cases should be rare and warrant careful
                review.''). The regulations already require representatives to provide
                competent and diligent representation for their clients, and it would
                not constitute good cause if a representative is not abiding by those
                requirements. See, e.g., 8 CFR 1003.102(o) (deeming the failure to
                provide competent representation to a client grounds for discipline),
                1003.102(q) (deeming the failure to act with reasonable diligence and
                promptness in representing a client grounds for discipline).
                 Fourth, under the proposed rule, an immigration judge will not be
                permitted to grant more than one continuance in removal proceedings for
                preparation time that is separate from the normal preparation time
                between hearings. Further, any such continuance solely for preparation
                may be granted prior to pleading to the allegations and charges in a
                Notice to Appear, but will not be granted for more than 14 days. This
                proposed rule recognizes that a significant amount of preparation time
                is already built into immigration proceedings, especially between a
                master calendar hearing and an individual merits hearing. See, e.g.,
                [[Page 75937]]
                Paris-Mendez v. Barr, 814 F. App'x 247, 250 (9th Cir. 2020)
                (unpublished) (``First, [respondent's] counsel decided not to prepare
                for an individualized hearing on September 20, 2016 until a few days
                prior, when she had five months to do so. Clearly, this did not justify
                a continuance.''); Islam v. U.S. Att'y Gen., 748 F. App'x 961, 963
                (11th Cir. 2018) (unpublished) (``The morning of Islam's removal
                hearing, attorney Zubaida Iqbal moved for a continuance on the ground
                that she had been hired the day before and needed time to prepare, but
                Iqbal had entered a notice of appearance in Islam's proceeding [two
                months earlier] and represented him at his bond hearing. And Iqbal's
                motion to continue was identical to the one she filed before Islam's
                bond hearing. The immigration judge did not abuse his discretion by
                refusing to further delay Islam's removal hearing when Iqbal failed to
                appear at the hearing or to explain in her motion why a continuance was
                necessary when she was familiar with Islam's case and the documents
                relating to his applications for relief.''); Aguilar Delgado v.
                Gonzales, 139 F. App'x 851, 853 (9th Cir. 2005) (unpublished) (``The
                agency did not abuse its discretion by denying a continuance, however,
                as it had given him fourteen months from his initial hearing where he
                appeared with counsel to prepare his case, and Aguilar Delgado chose to
                fire his attorney immediately preceding the hearing.'').
                 Consistent with an attorney's ethical duties of competence and
                diligence, 8 CFR 1003.102(o) and (q), additional time for putative and
                generalized ``preparation'' contributes to unnecessary delay and raises
                questions about the true purpose of the requested delay. Moreover, many
                instances of an alleged lack of preparation are actually due to the
                respondent's behavior, and the withholding of information by a
                respondent from his or her representative leading to that
                representative's lack of preparedness does not demonstrate good cause.
                See, e.g., Paris-Mendez, 814 F. App'x at 250-51 (``Second, with respect
                to the assertion that the petitioner's counsel learned for the first
                time on the morning of the hearing that the petitioner identified
                himself as a Jehovah's Witness and that he allegedly suffered
                persecution in Mexico because of his religion, it is puzzling that the
                petitioner's counsel was so informed at the last minute, when she had
                previously helped the petitioner with completing his Form I-589 . . .
                .''); Ahmed v. Gonzales, 185 F. App'x 665, 666 (9th Cir. 2006)
                (unpublished) (``Moreover, it was Ahmed's fault that his new attorney
                was not prepared. He hired her just before the hearing and did not
                inform her that the INS had revoked his visa.''); see also Ghajar v.
                INS, 652 F.2d at 1348-49 (``Ghajar's assertion that she was denied due
                process because she was not granted a second continuance to allow her
                attorney further time to prepare for the deportation hearing is without
                merit'').
                 Nevertheless, the Department recognizes that in rare cases, an
                attorney may need additional time to prepare to plead to the charges in
                the NTA, and the proposed rule would allow a continuance of up to 14
                days to do that.\20\
                ---------------------------------------------------------------------------
                 \20\ The proposed rule recognizes that substantial preparation
                time is already built into the current framework of immigration
                proceedings. For example, an attorney who contests charges of
                removability may be given time to brief the charges or the case may
                be set for a hearing on the charges, and the proposed rule does not
                limit the time immigration judges allow for briefing schedules or
                the scheduling of hearings related to contested charges of
                removability. Accordingly, representatives who contest grounds of
                removability will likely have additional time to address the
                charges, though that time will not fall under the rubric of a
                continuance for attorney preparation. Similarly, the normal time
                between a master calendar hearing and an individual merits hearing
                should provide an attorney ample time for preparation, as the
                attorney will have already presented a prima facie case for relief
                in order to obtain a merits hearing date in the first instance.
                There is no current, consistent practice among immigration judges
                regarding either the number or length of so-called ``attorney prep''
                continuances. Accordingly, the proposed rule would also standardize
                motions practice in this area based on a recognition that the
                natural procedural progression of a case already contains a
                significant amount of built-in preparation time, that most typical
                preparatory activities--e.g., writing briefs, contesting
                removability, filing applications or motions to terminate
                proceedings, and assembling evidence--occur during this time and
                outside of a court hearing, and that representatives may submit
                written pleadings and applications for relief without the need for a
                hearing to do so. Such standardization will benefit both
                practitioners and adjudicators by making procedural expectations
                both clear and consistent across all cases in removal proceedings.
                It will also ensure that hearing time is not wasted considering
                activities that are normally performed during the time between
                scheduled hearings and that representatives do not engage in
                dilatory tactics simply to prolong proceedings as much as possible.
                Although the current framework already contains substantial
                preparation time for either contesting removability or pursuing an
                application for relief, the Department nevertheless recognizes that
                it cannot account for every single scenario in which an attorney may
                allege a need for preparation time. Accordingly, in rare cases
                outside of the typical scenarios outlined above, the proposed rule
                recognizes an immigration judge's ability to grant an additional
                continuance for attorney preparation time of up to 14 days, which is
                a reasonable amount of time for a diligent and competent attorney to
                assess an issue beyond those otherwise contemplated in this proposed
                rule.
                ---------------------------------------------------------------------------
                 Fifth, the proposed rule would provide that good cause will not be
                found due to a representative's scheduling conflict in another court if
                that conflict that existed at the time the immigration judge scheduled
                the hearing in open court and the representative did not raise it at
                the time. This change supports the standard that a practitioner's
                workload must be controlled and managed so that each matter can be
                handled competently, 8 CFR 1003.102(q). If the representative's
                scheduling conflict in another court arises after the immigration
                hearing in removal proceedings was scheduled, an immigration judge may
                grant a continuance (of no more than 14 days) only if that conflict
                involves the court appointment of a representative to a case and the
                immigration judge was notified of the conflict in a timely manner.
                 The proposed rule recognizes that in certain jurisdictions
                representatives may be appointed as criminal defense attorneys through
                a panel process in furtherance of a criminal defendant's constitutional
                right to representation. See, e.g., 18 U.S.C. 3006A. Understanding that
                the constitutional rights of criminal defendants outweigh the
                inconvenience to the civil nature of immigration proceedings occasioned
                by a scheduling conflict and that criminal trials, especially of
                detained defendants, generally take precedence over civil proceedings,
                see, e.g., United States Courts, FAQs: Filing a Case, https://www.uscourts.gov/faqs-filing-case#faq-When-will-the-court-reach-a-decision-in-my-case? (last visited Nov. 5, 2020) (the scheduling of
                criminal cases is assigned a higher priority than the scheduling of
                civil cases in federal court), the proposed rule would contain an
                exception such that good cause may be found for a conflict that arises
                after an immigration hearing is scheduled due to the appointment of a
                respondent's representative in a criminal case, provided that the
                attorney timely notifies the immigration court of the conflict.\21\
                ---------------------------------------------------------------------------
                 \21\ The proposed rule also recognizes that attorneys may also
                be appointed in discrete types of civil proceedings, e.g. habeas
                proceedings. Accordingly, the rule is not limited to appointments in
                criminal cases and contains an exception for a conflict arising due
                to a subsequent appointment in any type of case, provided that the
                attorney timely notifies the immigration court of the conflict.
                ---------------------------------------------------------------------------
                 This proposed rule recognizes the disregard shown to immigration
                courts by practitioners who either misleadingly inform the immigration
                judge that they do not have a conflict when scheduling a future hearing
                or take on cases in other courts after the immigration court hearing
                has been scheduled knowing that a conflict exists. Such disregard for
                the time of an immigration judge and the resources of the immigration
                court
                [[Page 75938]]
                does not demonstrate good cause.\22\ Sixth, if the respondent's
                representative fails to appear for a scheduled hearing, the proposed
                rule would provide that the immigration judge may grant a continuance
                of no more than 14 days. This provision recognizes that, while
                representatives are expected to attend their clients' hearings, see id.
                1003.102(l), 1003.102(o), 1003.102(q), 1003.102(r), a respondent should
                not necessarily be penalized for his or her representative's failure to
                appear. Therefore, a continuance in these instances may be warranted,
                though it should be only for a limited duration of 14 days to ensure
                that an alien's case does not become stale due to any undue delay.
                ---------------------------------------------------------------------------
                 \22\ The proposed rule recognizes that cases are sometimes
                scheduled outside of open court. In such situations, the limitation
                on good cause due to a scheduling conflict by a representative
                outlined in the proposed rule would not apply, though any
                continuance request in such a situation would still have to
                affirmatively demonstrate good cause. Moreover, the representative
                would need to file the continuance request within 14 days of the
                issuance of the scheduling notice by the immigration court.
                ---------------------------------------------------------------------------
                 The proposed rule would also address continuances made on an
                immigration judge's own motion. In doing so, it would recognize that
                although there are multiple circumstances in which an immigration judge
                should continue a case on his or her own motion, those circumstances
                are closely circumscribed and should generally be rare. It also
                recognizes that the good cause standard ``plainly confines the
                discretion of immigration judges to grant continuances . . . [r]ather
                than giving `unfettered discretion to grant or deny a continuance.' ''
                Matter of L-A-B-R-, 27 I&N Dec. at 407 (quoting Ahmed, 569 F.3d at
                1014). Thus, the proposed rule would generally preclude an immigration
                judge from granting a continuance on his or her own motion except in
                clearly-specified circumstances.\23\
                ---------------------------------------------------------------------------
                 \23\ These circumstances would include those in which a
                continuance is required pursuant to 8 CFR 1003.47; there is evidence
                of serious illness of the alien, representative, or immigration
                judge, or serious illness or death of the spouse, child, or parent
                of the alien, representative, or immigration judge; the immigration
                judge is otherwise absent and no other immigration judge is
                available to preside over the hearing; there are technical
                difficulties with the immigration court's computer, recording
                system, or video teleconferencing system that prevent the case from
                being heard or recorded; the Department of Homeland Security or the
                Department of Health and Human Services fails to produce a detained
                alien for the hearing; an interpreter is necessary for the hearing,
                but is unavailable or unqualified; the record of proceedings is
                unavailable; the respondent did not appear at a hearing due to
                detention by a law enforcement entity, or due to a deficient notice
                and service of a new notice of hearing can correct the deficiency;
                the immigration judge began a hearing but was unable to complete it
                due to no fault of the parties; the court is closed for hearings at
                the time of the hearing; or unforeseen exceptional or extraordinary
                circumstances beyond the control of the alien, the alien's
                representative, government counsel, or the immigration judge.
                ---------------------------------------------------------------------------
                 All of these enumerated reasons are obvious instances where it
                would be unreasonable or impossible for an immigration judge to proceed
                with a hearing and, thus, warrant a continuance. See, e.g., Matter of
                L-A-B-R-, 27 I&N at 407 (``There are times when the prudent use of
                continuances may advance the efficient enforcement of the immigration
                laws. . . . When a key participant falls ill, for instance, . . . it
                can be wasteful and inefficient to plow ahead immediately.'') (emphasis
                added); cf. Matter of W-A-F-C-, 26 I&N Dec. 880, 882-83 (BIA 2016)
                (holding that where DHS seeks to re-serve a respondent to effect a
                notice to appear that was defective under the regulatory requirements
                for serving minors under the age of 14, a continuance should be granted
                for that purpose).
                 Additionally, this list includes a catch-all provision providing
                authority for an immigration judge to sua sponte continue a case in
                situations in which unforeseen exceptional or extraordinary
                circumstances \24\ beyond the control of the alien, the alien's
                representative, government counsel, or the immigration judge arise. The
                Department recognizes that no regulation can account for every possible
                scenario in which a continuance may be appropriate notwithstanding the
                provisions outlined in the proposed rule and that in rare cases, a
                continuance may be warranted for reasons wholly beyond the control of
                the parties and the immigration judge. Consequently, the proposed rule
                provides a catch-all mechanism for an immigration judge to grant a
                continuance in such rare circumstances.
                ---------------------------------------------------------------------------
                 \24\ The use of ``unforeseen exceptional or extraordinary
                circumstances'' as a standard for rare scenarios not falling into
                any other category is not intended to reflect statutory or
                regulatory definitions of those terms used in other contexts. See,
                e.g., INA 240(e)(1), 8 U.S.C. 1229a(e)(1); 8 CFR 1208.4(a)(5).
                Rather, it reflects the rare nature of such fact patterns that would
                warrant a continuance notwithstanding any other regulatory
                provision. Thus, this standard could warrant a continuance
                notwithstanding other provisions in truly rare or unique situations
                where an attorney faced a genuinely unforeseeable workload issue or
                a respondent faced an atypical need for additional time to obtain
                counsel (e.g., prior counsel has engaged in unethical or
                unprofessional behavior preventing the respondent from obtaining new
                counsel).
                ---------------------------------------------------------------------------
                 Finally, the proposed rule discusses continuances of merits
                hearings, including merits hearings on applications for relief or
                protection and merits hearings on contested charges of removability.
                Under the proposed rule, continuances of merits hearings are strongly
                disfavored, and should only be granted in specific circumstances or
                upon motion by either party. Accord EOIR OPPM 17-01 (``Such [merits]
                hearings are typically scheduled far in advance, which provides ample
                opportunity for preparation time, and often involve interpreters or
                third-party witnesses whose schedules have been carefully accommodated.
                Moreover, slots for individual merits hearings cannot be easily filled
                by other cases, especially if the decision to continue the hearing is
                made close in time to the scheduled date. Although some continuances of
                individual merits hearings are unavoidable, especially in situations
                involving an unexpected illness or death, the continuance of an
                individual merits hearing necessarily has a significant adverse ripple
                effect on the ability to schedule other hearings across an immigration
                judge's docket. Thus, such a request should be reviewed very carefully,
                especially if it is made close in time to the hearing.'').
                 The proposed rule contemplates that, following the scheduling of a
                merits hearing, parties have ample time to prepare for the hearing and
                that they should be ready to proceed at that date. If a motion for a
                continuance were granted in such an instance, the need to reschedule
                would unnecessarily delay the adjudication of the respondent's case.
                While there are circumstances in which a continuance is warranted, the
                proposed rule would embody a primary desire to not continue merits
                hearings. To do so would be to unduly disregard EOIR's mission of
                adjudicating cases expeditiously and efficiently, as well as to
                potentially undermine consideration of an application for relief for an
                alien whose case is already prepared for the hearing and whose evidence
                may otherwise go stale during any continuance. Accordingly, the
                proposed rule would note that continuances of merits hearings should
                only be granted in compelling circumstances outlined in the proposed
                rule, including unforeseen exceptional or extraordinary circumstances
                based on a motion by either party, and should be granted for no more
                than 30 days. An additional continuance of that length is a reasonable
                amount of time to address the issue that necessitated the continuance
                while also ensuring that evidence does not go stale or that the
                parties' preparation for the merits hearing is not otherwise vitiated.
                [[Page 75939]]
                V. Regulatory Requirements
                A. Regulatory Flexibility Act
                 The Department has reviewed this regulation in accordance with the
                Regulatory Flexibility Act (5 U.S.C. 605(b)) and has determined that
                this rule will not have a significant economic impact on a substantial
                number of small entities. The proposed rule would not regulate ``small
                entities'' as that term is defined in 5 U.S.C. 601(6). Only
                individuals, rather than entities, are placed in immigration
                proceedings, and only immigration judges, not entities, adjudicate
                requests for continuances.
                B. Unfunded Mandates Reform Act of 1995
                 This rule will not result in the expenditure by State, local, and
                tribal governments, in the aggregate, or by the private sector, of $100
                million or more in any one year, and it will not significantly or
                uniquely affect small governments. Therefore, no actions were deemed
                necessary under the provisions of the Unfunded Mandates Reform Act of
                1995.
                C. Congressional Review Act
                 This rule is not a major rule as defined by section 804 of the
                Congressional Review Act. 5 U.S.C. 804. This rule will not result in an
                annual effect on the economy of $100 million or more; a major increase
                in costs or prices; or significant adverse effects on competition,
                employment, investment, productivity, innovation, or on the ability of
                United States-based companies to compete with foreign-based companies
                in domestic and export markets.
                D. Executive Order 12866 and Executive Order 13563
                 The Office of Information and Regulatory Affairs of the Office of
                Management and Budget (``OMB'') has determined that this proposed rule
                is not a ``significant regulatory action'' under section 3(f) of
                Executive Order 12866. It will neither result in an annual effect on
                the economy greater than $100 million nor adversely affect the economy
                or sectors of the economy. It does not pertain to entitlements, grants,
                user fees, or loan programs, nor does it raise novel legal or policy
                issues. It does not create inconsistencies or interfere with actions
                taken by other agencies. Accordingly, this rule is not a significant
                regulatory action subject to review by OMB pursuant to Executive Order
                12866.
                 Executive Order 13563 directs agencies to assess all costs and
                benefits of available regulatory alternatives and, if regulation is
                necessary, to select regulatory approaches that maximize net benefits
                (including potential economic, environmental, public health, and safety
                effects, distributive impacts, and equity). Executive Order 13563
                emphasizes the importance of using the best available methods to
                quantify costs and benefits, reducing costs, harmonizing rules, and
                promoting flexibility. The Department certifies that this regulation
                has been drafted in accordance with the principles of Executive Order
                13563.
                 The proposed rule would provide additional clarity for adjudicators
                across many issues arising from the most types of requests for a
                continuance in immigration proceedings. Although the proposed
                regulation would provide clearer guidance for adjudicators in
                considering continuance requests, it does not change the nature or
                scope of the role of an immigration judge during immigration
                proceedings. Immigration judges are already trained to consider all
                relevant legal issues in assessing a request for a continuance, and the
                proposed rule does not propose any changes that would make adjudicating
                such requests more challenging than they currently are. If anything,
                the proposed rule would make adjudicating motions for a continuance
                easier and more efficient by providing clearer standards than the
                current, amorphous ``good cause'' standard. Accordingly, the Department
                does not expect the proposed changes to increase the adjudication time
                for immigration court proceedings.
                 The Department notes that the proposed changes may result in fewer
                continuances being granted; but, because such requests are inherently
                fact-specific, because there may be multiple reasons behind a
                continuance request, and because the Department does not granularly
                track multiple bases for a continuance, the Department cannot quantify
                precisely the expected decrease. Moreover, the denial of a continuance
                says little about the ultimate outcome of an alien's proceedings which
                depends on particular facts and an individual alien's eligibility for
                relief or protection, including relief that may be granted even after
                proceedings have concluded. Thus, the impact of the proposed rule on
                the outcomes of particular cases cannot be modeled with any degree of
                precision. Nevertheless, in general, the Department expects the
                proposed rule to result in fewer continuances which would enhance the
                efficiency of immigration proceedings in the aggregate, benefit aliens
                with valid claims who would otherwise have to wait longer to receive
                relief or protection, and vindicate the government and the public's
                interests in the prompt administration of justice. Similarly, a
                reduction in multiple, lengthy continuances may also provide some
                benefit to attorneys, particularly pro bono attorneys, who would not
                need to commit to representation for several years if the hearing
                process worked more efficiently. See, e.g., Human Rights First, The
                U.S. Immigration Court at 5 (``In a February 2016 survey conducted by
                Human Rights First of 24 pro bono coordinators at many of the nation's
                major law firms, nearly 75 percent of pro bono professionals indicated
                that delays at the immigration court are a significant or very
                significant negative factor in their ability to take on a pro bono case
                for legal representation before the court.''). Thus, for the reasons
                explained above, the expected costs of this proposed rule are likely to
                be de minimis, whereas the benefits to all parties, though not
                precisely quantifiable, are significant.
                E. Executive Order 13132 (Federalism)
                 This rule will not have substantial direct effects on the States,
                on the relationship between the national government and the States, or
                on the distribution of power and responsibilities among the various
                levels of government. Therefore, in accordance with section 6 of
                Executive Order 13132, it is determined that this rule does not have
                sufficient federalism implications to warrant the preparation of a
                federalism summary impact statement.
                F. Executive Order 12988 (Civil Justice Reform)
                 This rule meets the applicable standards set forth in sections 3(a)
                and 3(b)(2) of Executive Order 12988.
                G. Paperwork Reduction Act
                 This rule does not propose new or revisions to existing
                ``collection[s] of information'' as that term is defined under the
                Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter
                35, and its implementing regulations, 5 CFR part 1320.
                List of Subjects
                8 CFR Part 1003
                 Administrative practice and procedure, Aliens, Immigration, Legal
                Services, Organization and functions (Government agencies).
                8 CFR Part 1240
                 Administrative practice and procedure, Aliens.
                [[Page 75940]]
                 Accordingly, for the reasons set forth in the preamble, and by the
                authority vested in the Director, Executive Office for Immigration
                Review, by the Attorney General Order Number 4910-2020, the Department
                proposes to amend chapter V of title 8 of the Code of Federal
                Regulations as follows:
                Title 8 of the Code of Federal Regulations
                PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
                 1. The authority citation for part 1003 continues to read as
                follows:
                 Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
                1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
                1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
                2 Reorg. Plan No. 2 of 1950; 3 CFR, 19491953 Comp., p. 1002; section
                203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510
                of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 1505 of Pub.
                L. 106-554, 114 Stat. 2763A-326 to -328.
                0
                2. Revise Sec. 1003.29 to read as follows:
                Sec. 1003.29 Continuances.
                 (a) Subject to paragraph (b), the immigration judge may grant a
                motion for continuance for good cause shown, provided that nothing in
                this section shall authorize a continuance that causes the adjudication
                of an asylum application by an immigration judge to exceed 180 days in
                the absence of exceptional circumstances, consistent with section
                208(d)(5)(iii) of the Act and 8 CFR 1003.10(b).
                 (b) (1) In general. Subject to paragraphs (2) through (6), good
                cause is shown when a movant demonstrates a particular and justifiable
                need for the continuance. To determine whether good cause has been
                established, an immigration judge should consider the following non-
                exhaustive list of factors:
                 (i) The amount of time the movant has had to prepare for the
                hearing and whether the movant has exercised due diligence to ensure
                preparedness for that hearing;
                 (ii) The length and purpose of the requested continuance, including
                whether the reason for the requested continuance is dilatory or
                contrived;
                 (iii) Whether the motion is opposedand the basis for the
                opposition, though the opponent does not bear the burden of
                demonstrating an absence or lack of good cause;
                 (iv) Implications for administrative efficiency; and
                 (v) Any other relevant factors for consideration.
                 (2) Good cause not shown. (i) Good cause for a continuance is not
                shown when the continuance would not materially affect the outcome of
                removal proceedings or, for a continuance request based on a collateral
                matter, when the alien has not demonstrated by clear and convincing
                evidence a likelihood of obtaining relief on the collateral matter.
                 (ii) A request for a continuance in order to seek parole, deferred
                action, or the exercise of prosecutorial discretion by DHS does not
                demonstrate good cause.
                 (iii) A request for a continuance that would cause an immigration
                court to exceed a statutory or regulatory adjudication deadline does
                not demonstrate good cause unless the request meets the standard of any
                statutory or regulatory exception to the deadline.
                 (3) Continuances of removal proceedings related to collateral
                immigration applications. (i) Subject to paragraph (b)(3)(ii) of this
                section, a continuance request to allow an alien or a petitioner to
                apply for an immigrant visa or to wait for an immigrant visa for which
                the alien is the beneficiary to become available does not demonstrate
                good cause unless:
                 (A) (1) The approval of the visa application or petition provides
                or would provide an immediately-available visa to the alien, or
                 (2) The approval of the visa application or petition provides or
                would provide a visa to the alien with a priority date six months or
                less from the immediate action application date provided in the Visa
                Bulletin published by the Department of State for the month in which
                the continuance request is made;
                 (B) The alien has demonstrated prima facie eligibility for the
                underlying visa and, if applicable, for adjustment of status and any
                necessary waiver(s) based on the approval of that visa, including
                establishing that the alien would warrant adjustment of status and any
                necessary waiver(s) as a matter of discretion; and
                 (C) The immigration judge has jurisdiction over any application for
                adjustment of status, including any necessary waiver(s) in conjunction
                with that application, based on approval of the underlying visa.
                 (ii) (A) For purposes of paragraph (b)(3)(i) of this section,
                approval of a visa petition or application does not include interim
                relief, prima facie determinations, parole, deferred action, bona fide
                determinations or any similar dispositions short of final approval of
                the visa application or petition. The seeking of any of these
                dispositions or of any disposition short of final approval of the visa
                application or petition does not demonstrate good cause.
                 (B) Notwithstanding paragraph (b)(3)(i) of this section, an
                immigration judge may not grant a continuance to an alien in removal
                proceedings based on a visa application or petition based on a marriage
                entered into during any pending administrative or judicial proceedings
                regarding the alien's right to be admitted or remain in the United
                States, including during the pending removal proceedings, unless the
                alien establishes by clear and convincing evidence to the satisfaction
                of the immigration judge that the marriage was entered into in good
                faith and in accordance with the laws of the place where the marriage
                took place and the marriage was not entered into for the purpose of
                procuring the alien's admission as an immigrant and no fee or other
                consideration was given (other than a fee or other consideration to an
                attorney for assistance in preparation of a lawful petition) for the
                filing of the petition or application.
                 (iii) Subject to paragraph (b)(3)(iv) of this section, a
                continuance request to apply for a non-immigrant visa or to wait for a
                non-immigrant visa to become available, including any applicable
                waiver, in removal proceedings does not demonstrate good cause unless
                 (A) Receipt of the non-immigrant visa, including any applicable
                waiver, vitiates or would vitiate all grounds of removability with
                which the alien has been charged; and
                 (B) The alien demonstrates that final approval of the visa
                application or petition and receipt of the actual visa, including
                approval and receipt of any applicable waiver, has occurred or will
                occur within six months of the request for a continuance.
                 (iv) For purposes of paragraph (b)(3)(iii) of this section, the
                receipt of interim relief, prima facie determinations, parole, deferred
                action, bona fide determinations or any similar dispositions short of
                approval of the actual visa application or petition does not constitute
                receipt of the actual visa or evidence that the actual visa will be
                received within six months of the request for a continuance
                 (v) An immigration judge may grant a continuance in removal
                proceedings to await the adjudication of a non-visa application by DHS
                over which DHS has initial jurisdiction in the following circumstances:
                 (A) The alien has been found removable as charged;
                 (B) The alien has established prima facie eligibility for the
                underlying benefit;
                [[Page 75941]]
                 (C) The alien has provided evidence that the application has been
                filed with DHS and remains pending with DHS;
                 (D) DHS has initial jurisdiction over the application at issue even
                for an alien in immigration proceedings;
                 (E) There are no other applications pending before the immigration
                judge; and
                 (F) The non-approval of the application would transfer jurisdiction
                to the immigration judge to review and adjudicate the application.
                 (4) Continuances related to an alien's representation. (i) Subject
                to paragraph (b)(4)(ii) of this section, an immigration judge is not
                required to grant a continuance to any alien in removal proceedings to
                secure representation if the time period described in section 239(b)(1)
                of the Act has elapsed and the alien has failed to secure counsel.
                 (ii) In the immigration judge's discretion, an immigration judge
                may grant one continuance to an alien in removal proceedings to secure
                representation if the date of the alien's initial hearing occurs less
                than 30 days after the date the alien was served with a Notice to
                Appear and the alien demonstrates that the alien has been diligent in
                seeking representation since that date. Such a continuance shall be for
                a reasonable period of time but shall not exceed 30 days.
                 (iii) Because representatives are presumed to take on no more cases
                than they can handle in accordance with professional responsibility
                obligations of diligence and competence, a representative's assertions
                about his or her workload or obligations in other cases do not
                constitute good cause.
                 (iv) An immigration judge shall grant no more than one continuance
                in removal proceedings to an alien or his representative for
                preparation time, separate from the normal preparation time between
                hearings. Such a continuance may be granted solely for preparation
                prior to pleading to the allegations and charges in a Notice to Appear.
                Such continuance shall be granted for no more than 14 days.
                 (v) A representative's scheduling conflict in another court that
                existed at the time the immigration judge scheduled the hearing in
                removal proceedings for which the representative seeks a continuance
                and that the representative did not disclose at the time the hearing
                was scheduled does not constitute good cause, unless the immigration
                judge scheduled the case outside of open court. An immigration judge
                may grant a continuance due to a representative's scheduling conflict
                in another court arising after the immigration hearing in removal
                proceedings was scheduled in open court, but only if it involves the
                court appointment of a representative to a case and the immigration
                judge was notified of the conflict in a timely manner. Such continuance
                shall be granted for no more than 14 days. A representative requesting
                a continuance of a hearing scheduled outside of open court due to a
                scheduling conflict in another court that existed at the time the
                immigration court hearing notice was issued must file a motion for a
                continuance with 14 days of the issuance of the immigration court
                hearing notice.
                 (vi) Upon motion by a respondent in removal proceedings, an
                immigration judge may grant a continuance of no more than 14 days in a
                case in which the respondent's representative failed to appear for a
                scheduled hearing.
                 (5) Continuances on an immigration judge's own motion. An
                immigration judge may not grant a continuance on his or her own motion,
                except in the following circumstances:
                 (i) A continuance is required pursuant to Sec. 1003.47;
                 (ii) There is evidence of serious illness of the alien or serious
                illness or death of the spouse, child, or parent of the alien;
                 (iii) There is evidence of serious illness or death of the alien's
                representative or serious illness or death of the spouse, child, or
                parent of the alien's representative;
                 (iv) There is a serious illness of the immigration judge or serious
                illness or death of the spouse, child, or parent of the immigration
                judge;
                 (v) The immigration judge is absent and no other immigration judge
                is available to preside over the hearing;
                 (vi) There are technical difficulties with the immigration court's
                computer, recording system, or video teleconferencing system that
                prevent the case from being heard or recorded;
                 (vii) The Department of Homeland Security or the Department of
                Health and Human Services fails to produce a detained alien for the
                hearing;
                 (viii) An interpreter is necessary for the hearing and either an
                interpreter is unavailable or the interpreter present is unqualified;
                 (ix) The record of proceedings is unavailable;
                 (x) The respondent did not appear at a hearing because the
                respondent was detained by a law enforcement entity;
                 (xi) The respondent did not appear at a hearing due to a deficient
                notice and service of a new notice of hearing can correct the
                deficiency;
                 (xii) The immigration judge began a hearing but was unable to
                complete it due to no fault of the parties;
                 (xiii) The court is closed at the time of the hearing; or
                 (xiv) Unforeseen exceptional or extraordinary circumstances beyond
                the control of the alien, the alien's representative, government
                counsel, or the immigration judge require a continuance.
                 (6) Continuances of merits hearings. A continuance of a merits
                hearing on an alien's application for relief or protection from removal
                or a merits hearing on a contested charge of removability prior to or
                on the date of the hearing is strongly disfavored. Such continuances
                should only be granted in circumstances otherwise listed in paragraphs
                (b)(4)(v), (vi), or, upon motion by either party, paragraph (b)(5) of
                this section, and should be granted for no more than 30 days.
                PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
                UNITED STATES
                 3. The authority for part 1240 continues to read as follows:
                 Authority: 8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226,
                1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202
                and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L.
                105-277 (112 Stat. 2681).
                 4. Revise Sec. 1240.6 to read as follows:
                Sec. 1240.6 Postponement and adjournment of hearing.
                 Adjournments in removal proceedings are governed by the provisions
                of 8 CFR 1003.29(b).
                 5. Revise Sec. 1240.45 to read as follows:
                Sec. 1240.45 Postponement and adjournment of hearing.
                 Adjournments in deportation proceedings are governed by the
                provisions of 8 CFR 1003.29(b).
                James R. McHenry III,
                Director, Executive Office for Immigration Review, Department of
                Justice.
                [FR Doc. 2020-25931 Filed 11-25-20; 8:45 am]
                BILLING CODE 4410-30-P
                

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT