Saturday, February 28, 2009

Perez-Mirachal (not precedential): IJ Has Discretion To Grant Or Deny Continuance For Post-Conviction Motion Not Yet Filed

Perez-Mirachal v. Muksaey
April 23, 2008
Not Precedential
No. 07-1806
275 Fed. Appx. 141

Judges Sloviter and Jordan with Judge Alarcon from the Ninth Circuit. Opinion by Judge Alarcon. John J. Garzon of Sunnyside, NY for Mr. Perez-Mirachal. Paul Fiorino and Andrew Oliveira of OIL for the government.

The Third Circuit held that an IJ has the discretion to grant or deny a continuance request if the basis is to file a post-conviction motion to attack an underlying criminal conviction if the respondent has not yet filed that post-conviction motion in criminal court.

It is hard to discern any bright-line rules from this case, though, because the Third Circuit emphasized it is a case-by-case analysis.


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