Manik Ahmed was working as a chef specializing in Indian cuisine at a Los Angeles restaurant when he applied for a permanent work visa, called an I-140, in 2003. The U.S. Department of Homeland Security denied his request, but he appealed through an administrative process.
While waiting for his appeal to be decided, Ahmed, a citizen of Bangladesh who had come illegally to the United States in 1995, was notified that the federal government had begun removal proceedings against him. During his first hearing before an immigration judge, he sought a continuance pending the resolution of his administrative appeal. An immigration judge in Los Angeles initially granted that request for six months. But during his next hearing, in 2005, the result was much different.
"At that point, he asked: 'Can I get another six months continuance?' And she made the refrain: 'I'm not keeping this on my calendar,' " said Matthew Taggart, a lawyer at Los Angeles-based Gibson, Dunn & Crutcher, referring to the immigration judge who denied the continuance. Taggart, along with Jesse A. Cripps Jr., another lawyer at Gibson Dunn in Los Angeles, took over Ahmed's case after the Board of Immigration Appeals affirmed the immigration judge's decision.
On June 24, the U.S. Court of Appeals for the 9th Circuit reversed that decision, which the panel referred to as "arbitrary and unreasonable."
PACKED DOCKETLawyers in Los Angeles involved in representing immigrants seeking permanent residency in the United States said the ruling speaks to their ongoing frustration with multiple governmental agencies that often don't coordinate with one another. The problem is particularly acute in Los Angeles, which has more immigration judges than any other region and a noticeably crowded docket, they said.
But a busy calendar alone isn't necessarily enough reason to deny a continuance, the 9th Circuit reasoned.
"The excuse of keeping your calendar moving is not good enough," said John Ayala, a partner at Cobos & Ayala, an immigration firm in Los Angeles. "The significance of this is that these I-140 decisions sometimes get reversed and the continuance allows for it to play out. The fact that the government is taking months, if not years, to resolve these appeals should not place a negative consequence on the person who is before the judge facing the threat of expulsion from the United States."
In its ruling, the 9th Circuit expressed concern about blaming a petitioner for delays caused by administrative agencies. Similar issues were raised in recent rulings by the 2d and 7th circuits, both of which sided with petitioners. "Here, the [judge] abused her discretion by failing to provide any explanation for her decision, and failing to take into account any of the facts and circumstances of Ahmed's case that were relevant to the grant or denial of a continuance," Judge David R. Thompson wrote for the 9th Circuit panel.
Charles Miller, a spokesman for the U.S. Department of Justice, declined to comment on the decision.
In Los Angeles, some immigration judges — but not all — have refused to grant continuances of removal proceedings while administration petitions are pending, said Curtis Pierce, of the Law Offices of Curtis F. Pierce, an immigration firm in downtown Los Angeles. "After this holding, hopefully, more will."
The decision also reflects the mounting pressures facing the 28 immigration judges in Los Angeles, all of whom have extensive workloads. In Los Angeles, immigration judges often book multiple hearings at the same time, Pierce said. "They're under a lot of pressure to get cases completed, so generally they don't like to continue matters for these kinds of appeals," Pierce said. "Appeals could go on indefinitely."
Crowded dockets aren't unique to Los Angeles, of course. Immigration courts nationwide have experienced a 19% increase in the backlog of cases since 2006, according to a report issued in June by the Transactional Records Access Clearinghouse at Syracuse University that analyzes data about the federal government. The clearinghouse attributed the backlog to the shortage of immigration judges.
To fill the immigration courts, the Justice Department plans to hire 19 new judges this year and has requested 28 additional immigration judges during fiscal year 2010, which begins in September, said Miller, at the Justice Department. As of April, there were 234 immigration judges in the United States, he said.
Still, an increase in numbers won't give immigration judges authority to speed up the processing time for permanent work visas, said Tim Barker, managing partner of the Los Angeles office of Fragomen, Del Rey, Bernsen & Loewy, who represents employers who sponsor immigrants in obtaining I-140s. "The problem is [that] the immigration judge doesn't have the jurisdiction to adjudicate the I-140s, so the immigration judge has to indefinitely delay the deportation proceedings to wait for the other hand of the government to act," he said.
The processing of I-140s could speed up in coming months, however. On June 29, U.S. Citizenship and Immigration Services resumed a program that allows petitioners to get their I-140s applications processed within 15 days if they pay a $1,000 fee.
The government suspended the service in 2007 due to a backlog that prevented the agency from completing processing of I-140s within 15 days, according to Kathryn Mattingly, a spokeswoman at the agency. As a consequence, Barker said, it often took 12 to 14 months to process I-140 applications.
In any event, the I-140 appeal is still pending in Ahmed's case, which now goes before an immigration judge overseeing the government's removal proceedings, Taggart said.
"When it's remanded," Taggart said, "he will be in the same posture as before."
Contact Amanda Bronstad at amanda.bronstad@incisivemedia.com.
