L-N-Y-

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Matter of L-N-Y-, Respondent
Decided January 22, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
In assessing whether to grant an alien’s request for a continuance regarding an
application for collateral relief, the alien’s prima facie eligibility for relief and whether it
will materially affect the outcome of proceedings are not dispositive, especially where
other factors—including the uncertainty as to when the relief will be approved or become
available—weigh against granting a continuance.
FOR RESPONDENT: Khalil J. Khalil, Esquire, Chicago, Illinois
BEFORE: Board Panel: MALPHRUS, Acting Chairman; CREPPY and CASSIDY, Board
Members.
MALPHRUS, Acting Chairman:
In a decision dated May 29, 2019, the Immigration Judge denied the
respondent’s request for a continuance to await the adjudication of his
U nonimmigrant visa petition, which is pending before the United States
Citizenship and Immigration Services (“USCIS”). 	The respondent has
appealed from this decision. 	During the pendency of his appeal, the
respondent submitted a motion to remand based on an informational letter he
received from the USCIS. 	The respondent’s appeal will be dismissed, and
his motion to remand will be denied.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who entered the United
States without being admitted or paroled in 1997. In 2018, he was convicted
of attempted possession of a controlled substance under Illinois law.
In 	January 	2019, 	the 	Department 	of 	Homeland 	Security 	(“DHS”)
detained the respondent and placed him in removal proceedings, charging
him with removability under section 212(a)(6)(A)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2018), as an alien present in
the 	United 	States 	without 	being 	admitted 	or 	paroled, 	and 	section
212(a)(2)(A)(i)(II) of the Act, as an alien convicted of a controlled substance
violation. The Immigration Judge found that the respondent was removable

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as charged under section 212(a)(6)(A)(i) but did not address his removability
under section 212(a)(2)(A)(i)(II) of the Act.1
At a hearing conducted on March 14, 2019, the respondent informed the
Immigration Judge that he planned to file a petition for a U nonimmigrant
visa with the USCIS but was waiting for the relevant authorities to send
him the required law enforcement certification (“LEC”), certifying that he
was helpful to the investigation or prosecution of a criminal incident that
transpired in 2009. 	The Immigration Judge continued the proceedings to
allow the respondent to file an application for relief from removal and to
follow up on the status of the U visa petition.
At a hearing conducted on April 17, 2019, the respondent indicated
that he would not be pursuing an application for relief, but he noted that
he had received the LEC and mailed his petition for a U visa to the
USCIS on April 12, 2019. 	The respondent then applied for waivers of his
inadmissibility pursuant to, among other provisions, section 212(d)(3)(A)(ii)
of the Act. The Immigration Judge set the case for an individual hearing.
At an individual hearing conducted on May 29, 2019, the Immigration
Judge granted the respondent’s request for waivers of inadmissibility,
declined to further continue the proceedings to await the adjudication of his
U visa petition, and ordered him removed from the United States.2
On appeal, the respondent challenges the Immigration Judge’s decision
to deny his request for a continuance to await the adjudication of his U visa
petition. 	While his appeal was pending, the respondent filed a motion to
remand the record to the Immigration Court based on an informational letter
he received from the USCIS dated September 19, 2019. 	In this letter, the
USCIS states that, while it appears that the respondent has established his
eligibility for U nonimmigrant status, the USCIS cannot grant his petition at
this time because the statutory cap for U visas has been reached for the fiscal
year, and the USCIS will not grant his petition until new visas become
available. The record reflects that the respondent remains detained.
1 	The respondent’s removability is not at issue in this case.
2 	Neither party has addressed the Immigration Judge’s decision to grant a waiver of
inadmissibility under 212(d)(3)(A)(ii) of the Act, nor have they raised any issues regarding
his authority to do so. Compare Baez-Sanchez v. Sessions, 872 F.3d 854, 855–56 (7th Cir.
2017), with Matter of Castro-Tum, 27 I&N Dec. 271, 284 n.6 (A.G. 2018). Thus, we need
not discuss these issues further.

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II. ANALYSIS
A. Motions for Continuances
An Immigration Judge may in his or her discretion grant a continuance
“for good cause shown.” 	8 C.F.R. § 1003.29 (2019); see also Matter of
L-A-B-R-, 27 I&N Dec. 405, 405 (A.G. 2018). We have held that in assessing
whether there is “good cause” to grant a continuance to await the adjudication
of a U visa petition, Immigration Judges should consider several factors,
including: “(1) the DHS’s response to the motion; (2) whether the underlying
visa petition is prima facie approvable; and (3) the reason for the continuance
and other procedural factors.” 	Matter of Sanchez Sosa, 25 I&N Dec. 807,
813–14 (BIA 2012).
In Matter of L-A-B-R-, 27 I&N Dec. at 413, the Attorney General refined
this analytical framework, holding that Immigration Judges and this Board
must consider and balance “all relevant factors” in assessing whether there
is “good cause” to continue proceedings to accommodate a collateral matter
before 	another 	authority—such 	as 	a 	visa 	petition 	before 	the 	USCIS.
According to the Attorney General, the primary factors we should consider
in assessing whether to grant such a continuance are: “(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.” 	Id. 	However,
the 	Attorney 	General 	indicated 	that 	we 	must 	also 	consider 	relevant
“secondary factors,” which include, but are not limited to, “the [alien’s]
diligence in seeking collateral relief, [the] DHS’s position on the motion for
continuance, and concerns of administrative efficiency.” 	Id. at 415 (citing
Matter of Hashmi, 24 I&N Dec. 785, 790, 793 (BIA 2009)).3 	It is also
“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. 	“As with any balancing analysis requiring
consideration of multiple factors, [an alien’s] strength on certain factors may
compensate for a weaker showing on others.” Id. at 417.
B. Respondent’s Request for Continuance
There is no dispute that the respondent is prima facie eligible for a U visa
and that a grant of his visa petition by the USCIS would materially affect the
outcome of his removal proceedings. However, in assessing whether to grant
an alien’s request for a continuance regarding an application for collateral
3 	In Matter of Hashmi, 24 I&N Dec. at 790, we also stated that whether an alien’s
application for relief merits a favorable exercise of discretion is relevant to assessing a
continuance request. However, this factor is not at issue in this case.

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relief, these primary factors are not dispositive. This is especially so where,
as here, there are relevant secondary factors that weigh against continuing
the proceedings—in particular, the respondent’s lack of diligence in pursuing
a U visa, the DHS’s opposition to a continuance, and concerns regarding
administrative efficiency, which include the uncertainty as to when a visa
will be approved or become available and the respondent’s detained status.
See id. at 415–17.
The Immigration Judge did not clearly err in finding that the respondent
had not exercised due diligence in pursuing a U visa. 	As noted, the
respondent’s petition for a U visa is premised on a criminal incident that
transpired in 2009—a decade before he filed his petition with the USCIS.
The respondent has not shown what specific steps, if any, he took to pursue
a U visa between 2009 and the time he filed his petition.
It is significant, moreover, that despite being potentially eligible for a
U visa since 2009, the respondent only filed his petition for U nonimmigrant
status a month before his removal hearing.4 Under these circumstances, the
respondent’s delayed pursuit of a U visa was unreasonable and indicative of
a lack of due diligence. 	See id. at 416 (stating that an Immigration Judge
should not grant a continuance “where the respondent appears to have
unreasonably delayed filing for collateral relief until shortly before [his]
hearing”); cf. Toure v. Barr, 926 F.3d 403, 409 (7th Cir. 2019) (upholding
the denial of a continuance based on an alien’s lack of diligence where the
alien “was eligible to apply for [a] waiver . . . on December 3, 2014, but he
waited until July 11, 2017, just three months before his long-scheduled merits
hearing[,]” to apply for it).
With 	regard 	to 	the 	DHS’s 	position, 	it 	opposed 	the 	respondent’s
continuance request below based on his unreasonable delay in petitioning for
a U visa. 	It additionally argued that it will take a considerable amount of
time for the USCIS to adjudicate his petition.
“An immigration judge should also consider administrative efficiency in
deciding whether to grant a continuance, since at bottom, continuances are
themselves intended to promote efficient case management.” 	Matter of
L-A-B-R-, 27 I&N Dec. at 416. 	Neither party provided the Immigration
Judge 	with 	an 	estimated 	processing 	time 	for 	the 	adjudication 	of 	the
respondent’s visa petition before the USCIS. 	See Matter of Castro-Tum,
27 I&N Dec. 271, 287 (BIA 2018) (providing that an Immigration Judge may
4 	Counsel asserts on appeal that the respondent was not aware of the availability of
U nonimmigrant status until he consulted with counsel. There is no basis in the testimony
or evidence in the record for that assertion, which, in any case, is insufficient by itself to
establish that the respondent exercised due diligence in pursuing a U visa. See Matter of
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980) (“Counsel’s arguments are not
evidence . . . .”).

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only grant “a reasonable adjournment” (quoting 8 C.F.R. § 1240.6 (2018))).
The respondent is therefore requesting a continuance for an unknown and
potentially lengthy period of time. 	As noted, moreover, the USCIS has
informed the respondent that the statutory cap for U visas has been reached
and they will not grant his petition until new visas become available. 	It is
uncertain when this will occur. Cf. Matter of L-A-B-R-, 27 I&N Dec. at 418
(“[G]ood cause does not exist if the alien’s visa priority date [when the visa
will actually become available] is too remote to raise the prospect of
[collateral relief] above the speculative level.”).
Consistent 	with 	the 	Attorney 	General’s 	directive 	to 	“consider
administrative efficiency” in assessing whether there is “good cause” for a
continuance regarding collateral relief, Immigration Judges should also
consider an alien’s detained status. Id. at 416. The Immigration Courts and
the Board expedite the adjudication of cases involving detained aliens,
recognizing the liberty interest of detained aliens and the interest of the
Government to reasonably limit the expense of detention. See Immigration
Court Practice Manual, § 9.1(e), at 130 (Sept. 26, 2019) (“Proceedings for
detained aliens are expedited.”); see also Board of Immigration Appeals
Practice Manual, § 4.7(a)(ii), at 64 (Sept. 23, 2019) (providing expedited
briefing deadlines for detained cases); cf. Matter of Quintero, 18 I&N Dec.
348, 350 (BIA 1982) (observing that Immigration Judges have a “duty” to
resolve immigration 	proceedings 	“in an expeditious 	manner”). 	Thus,
Immigration 	Judges 	should 	consider 	whether 	an 	alien 	is 	detained 	in
determining the length and number of continuances that are appropriate.
Granting 	an 	indeterminate 	continuance 	greatly 	impacts 	administrative
efficiency in a typical case, but particularly where, as here, the alien is
detained.
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. 	8 C.F.R. § 1003.29.
Specifically, we have considered the respondent’s lack of diligence, the
DHS’s opposition, and the concerns of administrative efficiency in this case,
which include the speculative and indefinite nature of his continuance
request, given the uncertainty as to when a U visa will be approved or become
available, and the respondent’s detained status. 	We conclude that these
factors outweigh the respondent’s prima facie eligibility for a U visa and the
impact that the approval of his visa may have on proceedings. 	The
respondent has not otherwise argued or demonstrated that his request for a

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continuance is “for a reasonable period of time.” 	Matter of Sanchez Sosa,
25 I&N Dec. at 815.5
C. Due Process
“In order to establish a denial of the right to due process, [the respondent]
must show that he was prejudiced by the [Immigration Judge’s] actions.”
Souley v. Holder, 779 F.3d 720, 724 (7th Cir. 2015) (per curiam). 	The
Immigration 	Judge’s 	decision 	to 	deny 	the 	respondent’s 	request 	for 	a
continuance did not “cause[] him actual prejudice and harm [or] materially
affect[] the outcome of his case.” Matter of Villarreal-Zuniga, 23 I&N Dec.
886, 891 (BIA 2006). It is undisputed that the USCIS has yet to approve the
respondent’s U visa petition.6 Moreover, as the Immigration Judge noted,
the respondent may continue to pursue his U visa, even after he is removed.
See 8 C.F.R. § 214.14(c)(1)(ii), (5)(i)(B) (2019).7
The Immigration Judge’s written revisions to the transcript of his oral
decision also did not prejudice the respondent. 	These revisions are minor,
mostly 	grammatical, 	edits 	that 	do 	not 	impact 	the 	substance 	of 	the
Immigration Judge’s decision. The inaccuracies that the respondent alleges
5 	The respondent argues that his removal proceedings should be terminated. However,
we agree with the Immigration Judge’s decision not to terminate these proceedings. See
Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45 (BIA 2012) (stating that an Immigration
Judge may terminate proceedings in “specific circumstances consistent with the law and
applicable regulations”). The parties may file a joint motion to terminate these proceedings
without prejudice pursuant to 8 C.F.R. § 214.14(c)(1)(i) (2019). Matter of Sanchez Sosa,
25 I&N Dec. at 812 n.5.
6 	Because the informational letter submitted on appeal reflects that the USCIS has not
approved the respondent’s visa petition, it is unlikely that it would change the Immigration
Judge’s decision to deny a continuance. Accordingly, this letter does not warrant remand.
See Matter of L-A-C-, 26 I&N Dec. 516, 526 (BIA 2015) (“A motion to remand for the
purpose of presenting additional evidence . . . will only be granted if the evidence . . . would
likely change the result in the case.”). Finally, to the extent that the respondent argues that
remand would permit him to seek a redetermination of his custody status, it is well
established that bond proceedings are “separate and apart from, and shall form no part of,
any . . . removal hearing or proceeding.” 8 C.F.R. § 1003.19(d) (2019).
7 	The USCIS provides instructions on its website regarding the process for applying for
a U visa from “outside the United States.” 	USCIS, Victims of Criminal Activity:
U Nonimmigrant Status, https://www.uscis.gov/humanitarian/victims-human-trafficking-
other-crimes/victims-criminal-activity-u-nonimmigrant-status (June 12, 2018) (follow
“U nonimmigrant status” hyperlink; then follow “Applying for U Nonimmigrant Status
(U Visa)” hyperlink); see also U.S. Dep’t of State, Visas for Victims of Criminal Activity,
https://travel.state.gov/content/travel/en/us-visas/other-visa-categories.html (follow
“Visas for Victims of Criminal Activity” hyperlink; then follow “What is the difference
between U nonimmigrant status and U nonimmigrant visa?” hyperlink) (last visited Jan. 15,
2020) (providing same for applicants who are “overseas”).

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are in the Immigration Judge’s decision also do not materially impact the
outcome of this case. Finally, the respondent’s assertion that he was deprived
of “meaningful appeal” because of unidentified “transcription errors” is
without merit. Accordingly, the respondent’s appeal will be dismissed and
his motion to remand will be denied.
ORDER: The appeal is dismissed.
FURTHER ORDER: The motion to remand is denied.