BIA Decision on Continuances, Matter of Mayen

The Board of Immigration Appeals issued a decision on January 22, 2020, titled Matter of Mayen, 27 I&N Dec. 755. This decision came following an appeal by an individual denied a continuance in immigration court. The reason for requesting the continuance was to allow time for USCIS to adjudicate a pending U Nonimmigrant Status Petition, usually called a U Visa.

This decision is significant because the Trump Administration has struggled to increase the speed at which cases are decided in immigration court, and with it the number of people who can be deported. That has largely failed as the number of cases in court has skyrocketed past one million and many cases still take years to process. Reducing the number of continuances granted has been a big goal.

Additionally, under a former decision titled Matter of Sanchez Sosa, 25 I&N Dec. 807 (BIA 2012), which created a kind of presumption of exercising discretion to continue a case if there is a pending U Visa application so long as it is considered “prima facie approvable.” That typically meant that if it was likely to be approved or USCIS had indicated that it would approve it, if not for lack of visas, the case should generally be continued.

The decision in Matter of Mayen does not overrule this important decision, but it does confuse the issue enough that it will likely harm people trying to continue cases based on pending U Visas. People in immigration court proceedings will likely be hearing many of the same factors cited in Matter of Mayen in the coming months and years, such as:

• Lack of diligence in pursuing a U Visa, such as waiting years after a crime was committed to file, will count against continuances
• Uncertainty about when a visa could be issued, a real concern when waiting times might be over a decade
• DHS’ opposition to continuances, which are now generally certain
• An individuals status as being in custody weighing in favor of speedy cases
• The speculative and indefinite nature of continuance requests
• Denying a continuance does not actually case the individual prejudice

How might individuals respond to these issues in their own cases? Most likely their lawyers will have to cope with the endlessly increasing burden of proving every single element of every case, as is occurring in many areas of immigration law. Some potential reactions to this new decision might include:

• Affirmatively documenting the reasons why someone was not diligent in filing a U Visa when a crime was committed, such as not knowing about the U Visa as a form of relief or for other reasons
• Explaining why being detained is not always contrary to an individual’s interest, especially if they fear persecution, torture and death in another country
• U Visa relief is not always speculative if it is a prima facie showing
• The indefinite nature of continuance requests is actually due to the government removing immigration judges’ ability to administratively close cases or otherwise manage cases that might be pending for years
• Denying a continuance does result in actual prejudice because USCIS typically issues deferred action notices and work permits to those with approvable cases, and the delay in doing so is entirely on USCIS’ side