Ninth Circuit Declines to Punish Immigrants for Government Delay

February 8, 2011

Individuals who seek the assistance of the immigration attorneys at the Los Angeles Law Offices of J Craig Fong often marry their spouses after they are placed into removal proceedings. The question then became: how much patience will the Immigration Judge have while the government determines if it was a "bona fide marriage," or if it one entered solely to save the respondent from deportation?

The Ninth Circuit U.S. Court of Appeals recently determined that an immigration judge cannot deny a request for a continuance simply because the government takes too long to adjudicate cases. In Malilia v. Holder, the Ninth Circuit considered the case of an individual who married his fiancee while he was in removal proceedings. Mr. Malilia's lawyer requested that the judge wait until U.S. Citizenship & Immigration Services made a decision on the petition filed by Mr. Malilia's wife. The judge denied the request for a continuance, finding first, that there was a presumption that Mr. Malilia had married his wife in order to obtain immigration benefits and second, that USCIS would take an "unpredictable period of time" to adjudicate the marriage petition. Because Mr. Malilia was not then eligible for relief, the judge ordered his removal from the United States and Mr. Malilia appealed. During the course of Mr. Malilia's appeal, USCIS determined that the marriage was bona fide and approved the petition.

Ultimately, the Court sided with Mr. Malilia. The Court agreed with the Immigration Judge that a presumption exists. However, the Court noted that the presumption can be overcome by evidence presented by the couple. In other words, the couple must have an opportunity to persuade the government that their marriage is genuine and not for the purpose of obtaining immigration benefits. This process takes time -- months, sometimes years.

While this process is pending, an Immigration Judge should hold the court proceedings and wait for a determination from USCIS. The Court acknowledged the lengthy period of time that it takes for USCIS to make these determinations, but found that for an Immigration Judge to deny a continuance on that basis would punish the individual for the government's delay. Immigration Judges should consider a number of factors when determining whether to grant a continuance in a court case. However, the Court noted that "delay that is not attributable to the respondent augurs in favor of a continuance." The Court remanded Mr. Malilia's case to the Immigration Judge so that he could pursue adjustment of status based upon the approved marriage petition.

Although this decision had a favorable outcome for the respondent, every individual's case is different and involves different issues. If you are in removal proceedings, you should speak with an experienced immigration attorney to consult about all of your options. ---RA