CA2 on Continuances, Abuse of Discretion: Martinez Roman v. Garland

Martinez Roman v. Garland

"Petitioner Marco Antonio Martinez Roman (“Martinez”), a native and citizen of Mexico, seeks review of a Board of Immigration Appeals (“BIA”) decision affirming the decision of an Immigration Judge (“IJ”) denying Martinez’s application for cancellation of removal. In re Marco Antonio Martinez Roman, No. A201-347-082 (B.I.A. Sept. 30, 2020), aff’g No. A201-347-082 (Immig. Ct. N.Y. City Apr. 13, 2020). Martinez’s application rested on his assertion that removing him from the United States would cause “exceptional and extremely unusual hardship” to his three young, U.S.-citizen children, whose mother, Martinez testified, was unable to care for them. 8 U.S.C. § 1229b(b)(1)(D). Martinez sought a brief continuance of the merits proceeding to enable him to present live testimony from an expert and three others regarding his children’s health, the family’s circumstances, and the nature and severity of the hardship that his removal would cause. The IJ denied the requested continuance as well as an alternative request to permit the expert to testify by telephone and then found Martinez ineligible for cancellation on the ground that he failed to establish the necessary hardship. The Board of Immigration Appeals affirmed. On review, we conclude that the agency abused its discretion in denying the brief continuance that Martinez sought. The IJ’s denial fell outside the range of permissible decisions because it prevented Martinez from presenting relevant and material testimony in support of his application with regard to the precise ground on which the BIA ruling turned. We therefore GRANT his petition and REMAND the case to the agency for further proceedings consistent with this opinion."

[Hats off to ZOE LEVINE (Ryan Brewer, on the brief), The Bronx Defenders, and John Harland Giammatteo, Lutheran Social Services of New York Immigration Legal Program, for Amici Curiae Former Immigration Judges and Members of the Board of Immigration Appeals!]