Friday, July 18, 2008

Immigration judge abused discretion when motion for continuance was denied as a result of delay caused by Department of Homeland Security

[This case summarized by Ahmed Soliman, legal intern, Federal & Community Defender for the Eastern District of Pennsylvania.]

In United States v. Hashmi, No. 06-3934, (3rd Cir. July 7, 2008), the court addressed whether an immigration judge abused his discretion after denying a continuance, agreed to by the government, simply because the case was pending for a period of time longer than the 18 months suggested by the "case completion goals" set by the Department of Justice, despite the fact that the Department of Homeland Security was the cause of the case’s delay, and not the defendant.

The court ruled that the immigration judge did indeed abuse his discretion, stating that the case completion goals were merely a guide, not a rule that should trump consideration of the individual circumstances of each case. In the case of Hashmi, the court found that the circumstances causing a delay in the case proceedings were "absurd" since one division of the Department of Homeland Security was withholding the document that would move forward the Hashmi case being tried by another division of the Department of Homeland Security.

Hashmi is a native of Pakistan and came to the United States on a tourist visa, which expired after six months. However, Hashmi remained in the United States and eventually married an American citizen who filed I-130 petition for her new husband. Although petition, as it was filled out, showed no prior wife, Hashmi submitted the divorce decree for his prior marriage during the I-130 application process and denied any intent to conceal his prior marriage.

Hashmi was served on July 30, 2003 with a Notice to Appear for overstaying his visa (an allegation Hashmi admitted to, but also requested an adjustment of status due to his pending I-130 petition). It was the division of the Department of Homeland Security in charge of Hashmi’s I-130 petition that sent out the divorce decree to be authenticated, and sent another portion of Hashmi’s file to the government attorney in charge of Hashmi’s removal from the United States (the same attorney who failed to return the file, which held up Hashmi’s I-130 petition). Without the completed petition, Hashmi could not move forward with his removal trial.

The Judge overseeing the removal proceedings eventually ruled that the delays in moving forward with the proceedings went beyond the period of time suggested by the case completion goals, and therefore ordered Hashmi removed from the country.

As further logic for their holding, the court pointed out the fact that to rule otherwise would set a poor precedent, a precedent that would encourage the Department of Homeland Security to commit a similar "catch 22" in the future, against people who have a legitimate petition to remain in this country.

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