Matter of L. Ramirez: No More Presumption of a Continuance for U Visa Applicants

For fourteen years, a crime victim with a prima facie approvable U visa petition could expect removal proceedings to wait. That expectation came from Matter of Sanchez Sosa. It is gone.

The three holdings

In the Board’s words: “There is no presumption in favor of a continuance for aliens who have filed a prima facie approvable U visa petition with United States Citizenship and Immigration Services.” Second: judges deciding whether good cause exists for a continuance based on a pending petition or future visa availability “should apply the balancing test set forth in Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018), while keeping in mind the importance of the secondary factors and that good cause does not exist if visa availability is remote.” Third: “Aliens are not entitled to delay completion of their removal proceedings pending availability of a visa.”

The case

The respondent, a Mexican national, was placed in proceedings in June 2017 and filed a U petition that September based on a 2016 armed robbery. After an initial continuance in 2018 for attorney preparation, a continuance to await the U petition was granted in August 2019 over DHS opposition, with a warning that continuances would not be indefinite. In January 2020 the judge denied a further continuance and ordered removal. The Board affirmed. It found that the primary L-A-B-R- factors — the likelihood the petition would be approved and that it would affect the outcome — favored the respondent, but that the secondary factors controlled: the request was open-ended; the petition, already pending more than a year when the judge ruled, still had not been adjudicated more than six years later; it had been filed a year and a half after the crime; and DHS opposed.

What changes in practice

A U petition remains a path to status, and USCIS still adjudicates it. What has changed is what happens in immigration court while that petition waits in a queue that is now measured in years. A judge is no longer expected to continue the case; the applicant must show good cause under L-A-B-R-, and the Board has told judges that the wait itself — “remote” visa availability — weighs against a continuance. Timing matters: a petition filed promptly after the crime, before proceedings begin, will read differently from one filed late.

For a person with a pending U petition and a removal case, the question to put to counsel is what the record shows on each L-A-B-R- factor and what other relief is available if the continuance is denied. A removal order does not extinguish a U petition, but it changes everything about how the next years go.

This article is general legal information about a recent precedent decision, not legal advice, and does not create an attorney-client relationship. Whether good cause for a continuance exists depends on the specific record. Consult a qualified immigration attorney about your own case. This website is attorney advertising.