Jersey City, New Jersey – On July 9, 2020, the Third Circuit Court of Appeals affirmed in Mirambeaux v. Attorney General that the circuit court does not have jurisdiction to review an immigration judge’s discretionary denial of a request to continue (postpone) a hearing.

Mirambeaux’s case was heard on the detained docket at the Elizabeth Immigration Court. He had at least three hearings, including a testimonial hearing on his application for withholding of removal, before requesting a continuance at the next hearing to obtain documents. The immigration judge denied the request and ordered Mirambeaux removed. The appeal to the BIA was dismissed because the BIA found no error in the immigration judge’s decision. Mirambeaux filed a petition for review before the Third Circuit.

At the Third Circuit, Mirambeaux argued the denial of the continuance was a Due Process violation because the speed at which his removal proceedings progressing prevented him from having a full and fair hearing. The Third Circuit concluded Mirambeaux’s argument was wholly insubstantial and frivolous. The Court reached this conclusion because Mirambeaux did not even attempt to argue or demonstrate how the denial of the continuance prejudiced his case. Demonstrating prejudice is a requirement for establishing a Due Process violation. The court also rejected Mirambeaux’s argument that the denial of the continuance constituted a question of law because the continuance decision was discretionary.

The Court’s decision is notable because denials of requests for continuances are common. The immigration court is supposed to evaluate numerous factors to determine if a continuance if warranted. There is no indication in the decision that such an evaluation was conducted. There is also no discussion of whether an immigration judge’s failure to consider the proper factors could be a violation of Due Process. This is one way the court left the door open to a Due Process argument.

Another way the court left the door open to a Due Process argument is for a respondent who requested a continuance and demonstrated how the denial of the continuance prejudiced his/her case. Since Mirambeaux did not even make an argument that he was prejudiced, the court never analyzed whether a properly argued and documented claim of prejudice could establish a Due Process violation or not.

Understanding the impact of the decision is vital for anyone in immigration court. The immigration judges are under strict orders and monitoring to move their cases quickly, regardless of fairness to the respondents. The newly appointed judges under the Trump administration are particularly unconcerned about respondents’ rights and Due Process. It is virtually guaranteed in immigration court these days that a respondent’s motion for continuance will be denied, which is why it is vital for any such request to extensively and carefully document why the continuance is merited and why the respondent will be prejudiced by a denial.

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