Immigration Litigation = Middle School Debate Club?

Remember "Debate Club" in middle school?  You go up and argue for 5 minutes, then your opponent gets 5, then you get 1, then they get 1?  Except often you are arguing one thing, and they aren't arguing the other side of what you just said, they're arguing something totally different?  And neither side ever really debates quite the same thing?  Immigration Litigation is really quite similar. 

In removal (deportation) proceedings, you can ask the judge to continue/adjourn the case (schedule it for a later date) by asking for a continuance.  According to the federal regulations, at 8 C.F.R. § 1003.29, the Immigration Judge can continue proceedings if "good cause" is shown.

Okay, so what's good cause?  The Board of Immigration Appeals, who write opinions that the Immigration Judges have to follow, have held that when someone has a pending petition from an immediate relative (meaning that if the petition is approved they are immediately eligible to apply for adjustment of status, a fancy way of saying apply for their green card in the United States), that pending petition constitutes good cause.  Matter of Hashmi, 24 I. &. N. 785, 787 (BIA 2009). Then they said the same for employment-based petitions where an immigrant visa is immediately available, good cause is shown.  In re Rajah, 25 I. & N. Dec. at 135-36 (2009).

Both Board cases say that relying solely on case completion goals (Immigration Judge's are supposed to finish so many of their pending cases each year so as not to get backlogged) is not permissible, that they have to consider all issues and balance all the factors before denying a continuance request.

We have a case where the client is removable for criminal issues.  When we were before the Immigration Judge ("IJ"), we explained he had hired a criminal attorney and filed motions to reopen and vacate his convictions because his criminal lawyer never told him the immigration consequences of the guilty pleas and he would have plead to more serious offenses and faced more jail time if he could have avoided mandatory deportation.

If our client succeeds with the motions (New York Criminal Procedure Law 440 motions), he would not be removable from the United States, the judge would terminate proceedings, and he'd go back to being a permanent resident.  Rather than decide whether these pending motions constituted "good cause," the Trial Attorneys ("TAs," attorneys for the Department of Homeland Security who argue why a person is removable, the civil law equivalent of what a prosecutor is in criminal court) said, "Hey, well until the criminal courts reopen the case, he's still convicted.  Since he's still convicted and removable, there's no reason to continue the case."  The IJ agreed without explaining whether or how he balanced all the factors he was supposed to.

Just like middle school debate.  We say we have a reason to continue, they say he's still convicted of his crimes without saying why our reason isn't a good reason.  Very frustrating, but quite typical.  Seems like arguments that your guilty plea is unconstitutional because you were provided ineffective assistance by your criminal lawyer might constitute a good reason to prolong removal proceedings and delay possible deportation when there is a good chance the criminal court will later vacate the conviction, doesn't it?  DHS and the IJ don't seem to see it that way.