Thursday, March 11, 2010

Tinizaray-Narvaez (not precedential): Erroneous Denial of Continuance Where Expert's Busy Schedule Caused Delay

Tinizaray-Narvaez v. Holder
No. 08-3333
November 24, 2009
Not Precedential

Judges McKee, Nygaard, and Roth. Per Curiam decision. Overturning the BIA and IJ Annie S. Garcy.

IJ Garcy denied a continuance to allow someone seeking cancellation of removal for non-LPRs a chance to make an expert witness available for cross-examination because the expert was not available on the scheduled merits hearing date. An IJ's decision to deny a continuance is reviewed for abuse of discretion. The IJ acted in an arbitrary manner by faulting the immigrant for submitting the expert report just one week before the hearing, missing the court-ordered deadline. It was arbitrary because the IJ blamed the immigrant for unreasonably delaying the effort to get the expert report on time. However, four or five months of the wait to get the report was purely due to the expert's busy schedule and being unable to conduct the evaluation.

A delay of several months due to a specialist's busy schedule is no one's fault. As far as not being available on the hearing date, it was due to the expert's long-scheduled conflicting appointment to attend a conference. The IJ commented that there was no reason to think the immigrant would make good use of a continuance, but there was no basis in the facts of the case for the IJ's comment.


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