By Attorney Farhad Sethna, © 2013
Hervens Timothe, an immigrant from Haiti, received a third chance to find immigration counsel. The Board of Immigration Appeals held on August 29, 2013 that his immigration case should be remanded (returned) to the immigration judge because the immigration judge should have given the reasons for denying him a continuance (extension) to find an attorney.
As background, Mr. Hervens Timothe is pro se (representing himself) in a deportation proceeding. It appears that Mr. Timothe had previously been granted one continuance to find an attorney. He then reappeared before the court and indicated that he still did not have an attorney but that “an organization was working to find a lawyer to represent him in his removal proceedings.”
However, the immigration judge proceeded with the respondent’s case and- most importantly- did not include in his decision why the proceedings were not continued. This was in violation of the Board’s holding in Matter of C-B-, 25 I&N Dec. 888 (BIA 2012) in which the Board indicated that an immigration judge should expressly rule on an alien’s request for a continuance, and if denied, explain the reasons for not granting such a continuance.
The judge’s decision not to continue may have been warranted, but because the judge did not cite the reasons for denying the continuance, Mr. Timothe was able to prevail on appeal.
The Board consequently remanded the case to the Immigration Court for further proceedings. This means Mr. Timothe, should he be able to find an attorney, would be able to present any appropriate applications for relief.
Several important lessons can be learned from this case: first, while it is not necessary to have an attorney in Immigration Court, it is very important for a respondent to seek legal assistance. Remember, the government does not provide attorneys for removal defense as it does in criminal proceedings. Second, related to the first is the fact that immigration law is very complex and there are many strategies which a respondent may not be aware of if he or she represents herself. Third, it also highlights the fact that many times, even immigration judges can make mistakes. Therefore, it is important to be aware of one’s own defense and strategy, as well as have competent counsel to guide a respondent through very complex and extremely important legal proceedings.
Copyright Farhad Sethna, 2013
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.