J-A-F-S-: Why the Request for More Time Needed Evidence

The May motion changed the purpose of a June hearing

DHS began removal proceedings in 2015. The respondent filed an asylum and withholding application in 2017. In August 2022, he asked for more time to seek prosecutorial discretion from DHS, and the judge granted that request. An individual hearing was later set for January 2, 2025, then moved to June 5 because his lawyer was unavailable.

On May 21, 2025, the respondent filed another continuance motion. He wanted to gather evidence for special-rule cancellation of removal for a battered spouse. DHS opposed it. In its account of the hearing, the Board explained that the judge required the parties to appear but turned the individual hearing into a status conference, effectively granting more time.

At that conference, counsel said the respondent had recently been physically abused by his wife. Counsel wanted to establish the facts, collect evidence and pursue appropriate relief. He also reported past difficulty obtaining the respondent’s communication and cooperation, and said he was considering asking to withdraw.

DHS opposed the request. It argued that eligibility remained speculative, that counsel had not identified the documents being sought or the time needed, and that the case had already been pending for a decade. The judge nevertheless allowed time to investigate possible relief and obtain and submit the respondent’s criminal-history records, including conviction documents.

The Board reviewed the delay before a final removal decision

DHS challenged the continuance through an interlocutory appeal—an appeal of an intermediate ruling while the removal case remained unfinished. The Board explained that it generally does not entertain these appeals. It accepted this one because recurring problems with continuances near individual hearings can become moot before a final appeal allows review.

The Board reviewed the good-cause question de novo, meaning it made its own legal assessment of whether the showing justified more time. It concluded that the judge’s reasons—investigating possible eligibility and obtaining criminal records—did not establish good cause on this record.

The proposed relief needed an evidence-supported path

The continuance regulation, 8 C.F.R. section 1003.29, requires good cause. In its good-cause analysis, the Board applied the framework from Matter of L-A-B-R-, 27 I&N Dec. 405, 413–417 (A.G. 2018). It focused on the likelihood that the proposed relief would succeed and whether it would materially affect the removal case. It also considered diligence, DHS’s opposition, efficiency, the requested period and the prior hearing history.

The timing changed what the judge needed to evaluate. The Board acknowledged that time to investigate eligibility is often appropriate at the start of proceedings. By the individual-hearing stage, the Board explained, a judge generally should not grant more time based only on a speculative assertion that newly identified relief might be available. Here, both the prospect of relief and the work needed to pursue it remained uncertain.

The proposed relief was special-rule cancellation under 8 U.S.C. section 1229b(b)(2), which the immigration judge can consider in removal proceedings. For the spousal route raised here, the statute addresses battery or extreme cruelty by a spouse who is or was a U.S. citizen or lawful permanent resident, along with other requirements. The USCIS Form I-360 self-petition seeks immigrant classification under INA section 204(a). Our U, T, VAWA and SIJS evidence guide discusses that separate application.

The Board found in its assessment of the proposed relief that the motion included neither a cancellation application nor evidence of marriage to a U.S. citizen or permanent resident and battery or extreme cruelty. The Board found no reasonable likelihood of satisfying the relief requirements on that submission. The Board noted that counsel’s statements were not evidence. The judge needed supporting material to evaluate those eligibility questions.

The statute gives useful context for gathering that evidence. Section 1229b(b)(2)(D) directs consideration of “any credible evidence relevant to the application,” while leaving credibility and weight to the Attorney General’s sole discretion. That provision addresses the evidence considered on the cancellation application. For a continuance request, the practical task is to explain what evidence is already available, what remains to be obtained and how that work supports the proposed application.

The criminal history needed an answer

The relationship and abuse evidence were only part of the problem. The Board also found no showing that the respondent could establish good moral character or deserved a favorable discretionary decision. It referred to DHS evidence indicating 2023 convictions for spousal battery, false imprisonment, preventing or dissuading a witness from reporting, and damaging a wireless communication device.

Under 8 C.F.R. section 1240.8(d), the person seeking relief must establish eligibility and show that relief should be granted as a matter of discretion. In this case, the judge wanted the conviction records collected during the additional time. The Board concluded that failing to present those records before the scheduled individual hearing showed a lack of diligence. It treated that omission as a reason to deny more time.

That distinction matters when preparing a request. The actual criminal records allow counsel to assess the legal consequences of the convictions and address the discretionary concerns they raise. In J-A-F-S-, the Board’s reasoning centered on the missing showing of good character and favorable discretion, together with the failure to present the records. A useful submission needed to address those concerns alongside the newly reported abuse.

The current statute also has a specific rule for good moral character when certain acts or convictions are connected to the abuse. For an act or conviction that does not disqualify the applicant under section 1229b(b)(2)(A)(iv), section 1229b(b)(2)(C) permits a favorable character finding if the judge finds that it was connected to the abuse and that a waiver is otherwise warranted. That makes the actual conviction records and their context important to counsel’s eligibility review.

The disclosure date and the abuse date needed separate explanations

The motion said the respondent had told counsel about the abuse less than a month before the hearing. The Board observed that the date of the alleged abuse was unclear. Those are separate questions: When something happened, when the person disclosed it, and what counsel did after learning of it can each affect the explanation for needing more time.

The Board’s discussion of diligence also addresses the uncertainty about timing. The Board found diligence unproved and said the respondent’s communication with counsel might have been responsible. It also expressly noted that the judge had not asked why the respondent had not raised his possible eligibility earlier.

For a person discussing abuse with counsel, the useful next step is a careful chronology. Counsel needs to understand when the events occurred, when they were disclosed, what information was available and what caused any delay in preparation. Where an explanation remains uncertain, the request should identify the uncertainty and the work needed to resolve it.

The requested period also lacked an endpoint. The respondent did not specify how much time was needed to investigate eligibility. The Board weighed that omission with the decade-long proceeding and earlier continuances. The Board also pointed to the resources a late continuance can waste: judges’, counsel’s and witnesses’ time, interpreter costs and staff time spent rescheduling the hearing. The Board also recognized that repeated delays can work against a person seeking relief as country conditions or personal circumstances change.

A concrete investigation plan would give the judge something more useful to evaluate: Which records are missing? What has counsel already done to obtain them? What factual question remains? How does the requested period relate to that work? These are practical ways to address the gaps identified in this decision. Our continuance motion guide separately explains filing and attendance requirements.

The case returned for an individual hearing on applicable relief

The Board’s remand order sustained DHS’s appeal, vacated the June 5 continuance and remanded for further proceedings. It directed the judge to promptly schedule a final individual hearing to consider any applicable relief from removal.