5th Cir.: IJ can’t deny continuance based solely on length of delay in approving I-130

The 5th Circuit adopted the BIA’s recent holding in Matter of Hashmi that an IJ may not deny a continuance solely because it is likely to take a long time to approve a petition.  Hassan v. INS, 110 F.3d 490, 492 (7th Cir. 1997); Bull v. INS, 790 F.2d 869, 872 (11th Cir. 1986); Del Rosario v. Mukasey, 295 F. App’x 180, 181 (9th Cir. 2008); Pedreros v. Keisler, 503 F.3d 162, 165 (2d Cir. 2007)).

Accordingly, the Court held “that the IJ abused his discretion by denying Wu’s motion for continuance solely based on the length of the delay in obtaining approval of his wife’s I-130 application.”  Wu, No. 08-60073, slip op. at 4.

The Court then explained with approval the BIA’s 5-part analysis in Matter of Hashmi that “the IJ should evaluate” when considering a motion for a continuance based on a pending I-130.   Wu, No. 08-60073, slip op. at 3-4.  “The BIA stated that the IJ should evaluate the following five factors: (1) the DHS’s position on 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 merits a favorable exercise of discretion; and (5) the reason for the continuance and any other relevant procedural factors.” Wu, No. 08-60073, slip op. at 3-4 (quoting Matter of Hashmi, 24 I&N Dec. at 785).  Since the IJ in Wu’s case did not use Hashmi’s five-step process, the 5th Circuit remanded the case to the BIA with instructions to remand the case back to IJ for a consideration of the Hashmi factors.  Wu, No. 08-60073, slip op. at 4.

As the Fifth Circuit noted, there is a steady trend in the federal courts to affirm the BIA’s long-standing position that an IJ may not deny a continuance for no other reason than that CIS is taking a long time to process an I-130.