Time, Due Process, and Representation: An Empirical and Legal Analysis of Continuances in Immigration Court
By David Hausman & Jayashri Srikantiah
Since 2014, U.S. immigration courts have expedited the cases of many children and families fleeing persecution in Mexico and Central America. This Article conducts an empirical and legal analysis of this policy, revealing that reasonable time between immigration court hearings is necessary to protect the statutory and constitutional rights to legal representation. A large majority of immigrants facing deportation—including those part of the recent surge of children and families from Central America and Mexico—appear at their first deportation hearing without a lawyer, often because they cannot afford one.
When an immigrant appears without a lawyer and does not expressly waive his or her right to counsel, the immigration judge (IJ) must grant a continuance that allows a reasonable period of time for an immigrant to search for and retain counsel. Yet existing law does not specify what period of time is reasonable, and the courts of appeals disagree over how closely to scrutinize an IJ’s decision to deny a continuance.
In this Article, we use schedule data from the Executive Office Immigration Review to show that the length of a continuance has a large effect on immigrants’ likelihood of finding counsel, of appearing at subsequent hearings, and of eventually avoiding removal. Our analysis demonstrates that shorter continuances for unrepresented children and families prevented many from finding counsel and avoiding deportation. In light of these findings, we examine the due process and statutory consequences of an IJ’s decision to deny a continuance or to grant an overly short continuance. We conclude by recommending that initial continuances of fewer than ninety days should be presumptively invalid.