BIA Ruling Limits When Immigration Judges Must Grant Continuances to Find a Lawyer
29 I&N Dec. 839 (BIA 2026) Interim Decision #4234 Matter of A-K-R-, Respondent: Decided August 14, 2026.
The U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals Holds:
(1) The Immigration Judge properly denied the respondent’s request for a further
continuance to seek legal counsel based on a lack of good cause, consistent with the
governing statutes and regulations.
(2) The only statutory or regulatory time requirement that is necessary to safeguard an
alien’s privilege of legal counsel is that the first hearing may not be scheduled earlier
than 10 days after service of the notice to appear as set forth in section 239(b)(1) of the
Immigration and Nationality Act, 8 U.S.C. § 1229(b)(1). Matter of C-B-, 25 I&N Dec.
888 (BIA 2012), modified.Further stating, “An Immigration Judge may grant a continuance in his or her discretion
“for good cause shown.” 8 C.F.R. § 1003.29 (2020); see also Matter of
Sibrun, 18 I&N Dec. 354, 355–57 (BIA 1983). An alien in removal
proceedings has the statutory and regulatory privilege of being represented
by counsel of their choice at no expense to the Government. See sections
240(b)(4)(A) and 292 of the Immigration and Nationality Act (“INA”),
8 U.S.C. §§ 1229a(b)(4)(A), 1362 (2024); 8 C.F.R. §§ 1003.16(b), 1240.3,
1240.11(c)(1)(iii) (2026). To secure this privilege, Congress has provided
that: (1) the notice to appear for removal proceedings shall indicate that the
alien may be represented by counsel and include a list of attorneys available
to represent the alien pro bono; and (2) the first hearing date shall not be
scheduled earlier than 10 days after service of the notice to appear. INA
§ 239(a)(1)(E), (b)(1)–(3), 8 U.S.C. § 1229(a)(1)(E), (b)(1)–(3) (2024). The
statute further provides that “[n]othing in this subsection may be construed
to prevent the Attorney General from proceeding against an alien pursuant to
section 240 if the [10-day] time period described in paragraph (1) has elapsed
and the alien has failed to secure counsel.” INA § 239(b)(3), 8 U.S.C.
§ 1229(b)(3).”
Thus, The BIA cuts back the old Matter of C-B- standard that required judges to give a “reasonable and realistic” chance to find a lawyer, and replaced it with a hard floor — only the 10-day minimum between NTA service and the first hearing is legally required. After that, judges have much more discretion to deny further continuances.
On August 14, 2026, the Board of Immigration Appeals (BIA) issued a precedent decision, Matter of A-K-R-, 29 I&N Dec. 839 (BIA 2026), that changes how much time an Immigration Judge must give a respondent to find an attorney before proceeding with their case. The decision pulls back from a standard the Board had set years earlier — and it has real consequences for anyone in removal proceedings who is trying to find a lawyer but goes to the first hearing without one. By all means, continue to ask for continuances if you do not have counsel at the first hearing, but know that with this decision, IJs have more force to deny that request.
What Happened in the Case
The respondent, a native and citizen of India, entered the United States illegally and was detained after being issued a Notice to Appear on January 8, 2026.
- At his first hearing, on February 3, 2026, he was given two weeks to find a lawyer or file for relief on his own.
- At the next hearing, on February 17, he asked for more time. The judge gave him two more weeks — but warned him plainly: come to the next hearing with a lawyer, or be ready to represent himself. No further continuances to find counsel would be granted.
- On March 2, still without an attorney, he admitted the government’s allegations. The judge found him removable, and after he expressed fear of returning to India, ordered him to file an application for protection (such as withholding of removal or protection under the Convention Against Torture) by March 18.
- On March 18, he showed up without a completed application. He explained he couldn’t get the documents he needed and asked for more time.
The judge said no, and ordered him removed.
On appeal, the respondent said he’d had no money to hire a lawyer, no one outside detention to help him, and not enough education to complete the application on his own. The Board wasn’t persuaded — and used the case to rewrite the legal standard going forward.
The Old Rule: Matter of C-B-
Since 2012, immigration courts had generally followed Matter of C-B-, 25 I&N Dec. 888 (BIA 2012), which said an Immigration Judge “must grant a reasonable and realistic period of time to provide a fair opportunity” for someone to seek, speak with, and retain a lawyer. That language gave judges — and respondents — a flexible, fact-specific standard: continuances weren’t unlimited, but courts were expected to bend somewhat to give people a genuine shot at finding representation.
Earlier this year, the Fourth Circuit leaned on that exact language in Rodriguez-Solis v. Blanche, 177 F.4th 266 (4th Cir. 2026), ruling that a respondent’s right to counsel was violated when she was denied a continuance after her attorney withdrew about a month before her hearing.
The New Rule: A Hard Statutory Floor, Not a Flexible Standard
In Matter of A-K-R-, the Board disavowed that language from Matter of C-B-, calling it dicta unsupported by the statute. The Board held that the only statutory or regulatory time requirement protecting the right to counsel is this: the first hearing cannot be scheduled earlier than 10 days after the Notice to Appear is served, per INA § 239(b)(1), 8 U.S.C. § 1229(b)(1).
Beyond that 10-day floor, the statute expressly allows the government to proceed against someone even if they haven’t secured a lawyer. Because the respondent’s first hearing in this case came 26 days after service — well past the 10-day minimum — and because he’d already received two continuances specifically to find counsel, the Board held that due process and the statutory privilege of counsel were fully satisfied. No further continuance was legally required, regardless of how sympathetic the respondent’s circumstances were.
The Board also pointed out that it agreed with the dissent in Rodriguez-Solis, which argued that “complying with these [statutory] provisions is all that is necessary to safeguard an alien’s privilege of counsel,” and that requiring more “creates a right that doesn’t exist under the statute’s text.”
Why This Matters
This decision is significant for a few reasons:
It lowers the bar for judges to move forward without counsel present. Where Matter of C-B- asked judges to weigh whether someone had a genuinely fair opportunity to find a lawyer, Matter of A-K-R- asks only whether the 10-day minimum and basic procedural steps were met. Judges now have far clearer — and narrower — grounds to deny a continuance, even where a respondent describes real obstacles like lack of funds, lack of education, or no outside support.
It puts more weight on the first hearing. Respondents and their families should treat the earliest hearings in a case as the critical window to retain counsel — not something to defer.
It affects detained individuals most acutely. The obstacles the Board treated as insufficient — no funds, no ability to reach family or attorneys, difficulty gathering documents from inside detention — are exactly the obstacles detained respondents face routinely. This decision signals that those obstacles, standing alone, are unlikely to justify further delay.
The Practical Takeaway
Matter of A-K-R- is a reminder of something immigration attorneys stress constantly: time in removal proceedings moves faster than most people realize, and the assumption that a court will always grant “one more continuance” to find a lawyer is no longer a safe one. Anyone who has received a Notice to Appear — or has a family member in removal proceedings — should treat retaining counsel as the first priority, not something to work out along the way.
If you or a family member has an upcoming immigration court hearing, don’t wait for the court to grant more time. Reach out to an experienced immigration attorney as early in the process as possible.
This article is for informational purposes only and does not constitute legal advice. Every case is different — consult a licensed immigration attorney about your specific situation. You are encouraged to book a free immigration consultation with our website.