Continuances after Patel: Second Circuit Confirms Judicial Review & Re-states the “Good-Cause/Prima-Facie–Eligibility” Test – Commentary on Hernandez Flores v. Bondi (2025)

1. Introduction

Hernandez Flores v. Bondi, No. 23-6714 (2d Cir. Aug. 14 2025), is a significant immigration decision that clarifies two pressing post-Patel questions:

Whether federal courts retain jurisdiction to review Immigration Judges’ (IJs) denials of continuances in removal proceedings, despite the Supreme Court’s expansive jurisdiction-stripping reading of 8 U.S.C. § 1252(a)(2)(B)(i) in Patel v. Garland, 596 U.S. 328 (2022).
What constitutes “good cause” for a continuance when the non-citizen seeks time to become statutorily eligible for cancellation of removal under 8 U.S.C. § 1229b(b).

Petitioner Saul Hernandez Flores, a Mexican national unlawfully present in the United States since 2002, requested multiple continuances so he could accrue facts (birth of a U.S.-citizen child; potential marriage) that might satisfy the statutory hardship requirement. Both the IJ and the Board of Immigration Appeals (BIA) denied the final continuance and a subsequent motion to remand that alleged ineffective assistance of counsel (IAC). The Second Circuit—over a jurisdictional concurrence—rejected the petition.

2. Summary of the Judgment

The Court (Judge Lynch writing per curiam, joined by Judge Lee) held:

Jurisdiction. Sanusi v. Gonzales remains good law; § 1252(a)(2)(B)(i) does not strip jurisdiction over denials of continuances because such rulings precede the merits decision on discretionary relief. Thus the Court applied a traditional abuse-of-discretion review.
Good-Cause Standard. The IJ correctly applied the analytical framework of Matter of L-A-B-R-, 27 I.&N. Dec. 405 (A.G. 2018). Because Hernandez could not yet show prima facie eligibility—most critically, that a qualifying relative would suffer “exceptional and extremely unusual hardship,” 8 U.S.C. § 1229b(b)(1)(D)—the denial of the fourth continuance was within the “range of permissible decisions.”
Ineffective Assistance. The BIA properly denied remand: (a) counsel’s advice not to pursue a last-minute marriage was objectively reasonable given the presumption of marriage fraud in removal proceedings; and (b) petitioner failed to produce corroborating evidence of the stepchild’s alleged mental-health hardship, so no Strickland-type prejudice was shown.

Judge Park concurred in the judgment but argued that Patel abrogates Sanusi; hence § 1252(a)(2)(B)(i) should bar review of the continuance issue. The majority’s holding therefore creates an express circuit precedent on the point.

3. Detailed Analysis

3.1 Precedents Cited & Their Influence

Patel v. Garland (2022). Expansively interpreted § 1252(a)(2)(B)(i) to bar review of “any and all decisions” relating to the grant or denial of discretionary relief. The concurrence would extend Patel to continuances; the majority confines Patel to merits-stage decisions.
Sanusi v. Gonzales (2d Cir. 2006). Earlier Second Circuit precedent permitting review of continuance denials. The panel majority reaffirmed it, finding no direct conflict with Patel. This reaffirmation is itself the new precedent.
Matter of L-A-B-R- (A.G. 2018). Established factors for “good cause” continuances (diligence; materiality; collateral vs. immigration relief). The IJ imported that test and the BIA endorsed applying it even when the continuance is sought to collect additional evidence, not to await collateral proceedings.
Wilkinson v. Garland (2024). Latest Supreme Court exposition on the four statutory prongs for cancellation; quoted by the panel to emphasize the high “exceptional and extremely unusual hardship” threshold.
Other Second Circuit cases (Morgan, Castellanos-Ventura, Paucar, etc.) supplied the abuse-of-discretion and Strickland-type IAC frameworks.

3.2 Court’s Legal Reasoning

a. Jurisdictional Holding. The majority invoked the “presumption of review” (Bowen; Kucana) and read Patel narrowly, i.e., its “first-step factual findings” language applies inside discretionary relief determinations, not to antecedent, calendar-management decisions. Because an IJ’s continuance decision simply schedules proceedings, it is not itself a § 1229b “judgment.” This interpretation preserves judicial oversight over potential arbitrariness in docket control.

b. Good-Cause Analysis. Applying L-A-B-R-, the IJ confirmed:

Petitioner had already received three continuances; additional delay would not likely alter outcome without evidence of hardship.
Paternity evidence was incomplete (no certified birth certificate at hearing) and hardship to a newborn, standing alone, rarely meets the extremely-unusual benchmark.
Other statutory prerequisites (10 years’ presence, good moral character, no disqualifying convictions) were unsubstantiated.

Finding these gaps, the court held the IJ acted within her broad calendar discretion. Emphasis on “prima facie eligibility before delay” signals to litigants that continuances will hinge on concrete, not speculative, eligibility.

c. Ineffective Assistance. Using the BIA’s Lozada framework and federal Strickland standards, the panel noted:

No evidence of the stepchild’s hardship (medical or psychological records, expert affidavits).
Counsel’s decision not to recommend a marriage—presumptively suspect when entered during proceedings—was a reasonable strategic choice.
Therefore, no prejudice: petitioner could not show a “reasonable probability” of winning cancellation even with optimal lawyering.

3.3 Potential Impact of the Judgment

Continuance Jurisdiction Post-Patel. By distinguishing Patel, the Second Circuit creates a clear circuit split with the Fifth and Ninth Circuits (Ikome, Figueroa Ochoa) that treat continuance denials as unreviewable. The issue is now primed for Supreme Court resolution.
Heightened Prima Facie Burden. The decision reinforces that an applicant requesting time to create or supplement eligibility must already possess—or be able to proffer imminently—evidence meeting all statutory prongs, especially the stringent hardship standard.
IAC in Immigration Context. The Court underscores that speculative benefits (e.g., future marriage, hypothetical hardship) rarely suffice to show Strickland prejudice. Strategic avoidance of potentially fraudulent marriages is within counsel’s reasonable range.
Administrative Efficiency. IJs can rely on Hernandez Flores to deny serial continuances where eligibility “remains speculative,” reducing docket backlog.

4. Complex Concepts Simplified

Continuance. A postponement of a scheduled hearing. In immigration court it pauses removal proceedings to let the non-citizen obtain evidence, complete paperwork, or await an external decision.
Cancellation of Removal (Non-LPR). A discretionary remedy that, if granted, wipes out the removal order and confers lawful permanent resident status. Requires: (1) 10 years of continuous physical presence; (2) good moral character; (3) no certain criminal bars; and (4) “exceptional and extremely unusual hardship” to a U.S.-citizen/LPR spouse, parent, or child.
Exceptional and Extremely Unusual Hardship. A statutorily elevated hardship standard—far above “extreme hardship”—that usually demands serious medical, psychological, or other extraordinary detriment to the qualifying relative.
Ineffective Assistance of Counsel (IAC). In immigration matters, evaluated under the Lozada/Strickland framework: deficient performance + prejudice (reasonable probability of different outcome).
§ 1252(a)(2)(B)(i) Jurisdictional Bar. A provision stripping federal courts of power to review “any judgment regarding the granting of relief” like cancellation. Debate centers on whether preliminary decisions (like continuances) fall within this bar.

5. Conclusion

Hernandez Flores v. Bondi offers two lasting lessons. First, within the Second Circuit, litigants retain a federal forum to challenge IJ denials of continuances, notwithstanding Patel. Second, a successful continuance motion tied to cancellation of removal must be anchored in robust, near-complete evidence of every statutory element, especially the rigorous hardship requirement. The decision narrows the path for speculative delay strategies and clarifies counsel’s professional obligations. Whether the Supreme Court will harmonize the emerging circuit split on § 1252(a)(2)(B)(i) remains to be seen, but for now Hernandez Flores stands as the leading authority on continuances in the post-Patel landscape.