In Matter of A-K-R-, the BIA holds that a single ten-day cushion is the only hard time the statute owes you to find a lawyer. Everything after it is a favor.
A detained man from India told an immigration judge he feared torture at home. No lawyer. No money. No way to pull his documents out of detention. The judge gave him two weeks, then two more, then ordered him removed. On August 14, 2026, the Board of Immigration Appeals said the judge broke no rule. Matter of A-K-R-, 29 I&N Dec. 839 (BIA 2026).
The decision reaches every crowded docket in the country. It holds that the only firm time the statute owes a noncitizen to find counsel is the ten-day gap between the charging paper and the first hearing. INA § 239(b)(1), 8 U.S.C. § 1229(b)(1). After that, more time is a favor, not a right. And the Board erased the 2012 precedent that told judges to give people a real chance to lawyer up first. The mega-master machine has been banking on the unrepresented to trip. The Board just handed it the legal cover.
What happened to the man in this case
DHS served the notice to appear on January 8, 2026, and detained him the same day. His first hearing came twenty-six days later. The judge read the standard advisals and gave two weeks to find counsel or file for relief. At the next hearing the man asked for more time. The judge gave two more weeks and a warning: bring a lawyer or represent yourself, because the continuances stop here.
He came back with no lawyer and admitted the charges. When he said he feared return to India, the judge told him he might qualify for withholding of removal or protection under the Convention Against Torture, and set a filing deadline. He missed it. He could not get the documents. He had no funds, no one outside detention to help, and not enough schooling to complete the form alone. The judge denied one last continuance and ordered him removed. He was pro se the whole way. He is exactly the person the mega-master docket is built to catch.
What the Board held
Start plain. A judge may grant a continuance for good cause. 8 C.F.R. § 1003.29; Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983). A noncitizen holds the privilege of counsel of their choice, at their own expense. INA §§ 240(b)(4)(A), 292. Congress protected that privilege two ways: the notice to appear must name the right and list pro bono lawyers, and the first hearing cannot come sooner than ten days after service. INA § 239(a)(1)(E), (b)(1). Once those ten days pass, the statute lets the government proceed against a person who still has no lawyer. INA § 239(b)(3).
Now the move. In 2012 the Board said a judge must give a “reasonable and realistic period of time” to find counsel. Matter of C-B-, 25 I&N Dec. 888 (BIA 2012). The Board withdrew that line as a mandate. Chief Appellate Immigration Judge Malphrus wrote for the panel, joined by Appellate Immigration Judges Hunsucker and Chaban, and called the standard unsupported, untethered from the text, and dicta. What is left is the floor. Ten days, and nothing more.
Applied here, the answer comes fast. First hearing at twenty-six days. Two continuances. The statute was met, and the man never showed good cause for a third. The Board added that the Fifth Circuit, where the case arose, only assumes a possible Fifth Amendment due process right to counsel. Mai v. Gonzales, 473 F.3d 162 (5th Cir. 2006). It did not decide that question. It cut the statutory protection and left the constitutional one untouched.
What this actually does
The working rule: once the ten-day floor is met, a noncitizen has no statutory right to more time to find a lawyer. Every further continuance rides on good cause, reviewed for abuse of discretion.
| Before A-K-R- (the C-B- world) | After A-K-R- |
|---|---|
| Judge must allow a reasonable, realistic period to find counsel. | Judge must honor only the ten-day floor before the first hearing. |
| Denying real time to find counsel was itself a statutory violation. | Denying more time is judged only as a good-cause call. |
| Counsel-continuance requests carried a thumb on the scale. | They stand like any other continuance request. |
| Circuit courts leaned on the BIA standard to reverse removals. | The agency pulled that standard out from under them. |
The speed machine
IIRIRA built this in 1996. It wrote § 239, the ten-day floor, the pro bono list, a promise of counsel bolted to a fast track into court. Every administration since has fed the fast track and starved the promise. Dockets swelled. Completion quotas landed. The 2012 C-B- gloss ran the other way and told judges to slow down for counsel. The Board just deleted it.
Look at what the deletion serves. The Justice Department now packs more than a hundred people before a single judge in “mega master” hearings, moves dates up by weeks, and orders removal for anyone who shows up late, misses the roll call, or never had a lawyer. I wrote about that machine here. The design runs on the unrepresented. A-K-R- is the doctrine it was missing. It tells the judge the clock can run out on counsel after ten days and the record will still hold. The statute never bent for the docket. Now the Board has bent for it.
The collision the Board walked into
Twelve weeks earlier, the Fourth Circuit used the very language the Board just cut. In Rodriguez-Solis v. Blanche, 177 F.4th 266 (4th Cir. 2026), a lawyer of more than a decade withdrew weeks before an asylum merits hearing. The judge refused a continuance for new counsel and made the woman go it alone. The majority held that denying her a reasonable and realistic period to secure counsel violated her statutory privilege, and sent it back for a prejudice finding.
Judge Quattlebaum dissented. Complying with the statute, he wrote, is “all that is necessary to safeguard an alien’s privilege of counsel.” The Board quotes that dissent and adopts it.
So the agency took the losing side of a published opinion and made it national policy, three months after the fact. Inside the Fourth Circuit, Rodriguez-Solis still binds; the Board cannot overrule a court’s reading of the statute there. Everywhere else, a protective circuit ruling and the agency’s new rule now point in opposite directions. That tie goes up.
The Seventh Circuit angle
For those of us in Chicago, the question is what changes here. The Seventh Circuit reviews continuance denials for abuse of discretion, and it does not rubber-stamp. In Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004), the court demanded a reason grounded in the statutory scheme, not the calendar. In Cadavedo v. Lynch, 835 F.3d 779 (7th Cir. 2016), it applied the Board’s good-cause factors and asked whether the relief sought was real.
A-K-R- takes away the argument that the judge had to give time for counsel. It leaves the demand for a reasoned denial standing. Whether this circuit drifts toward the searching review of the First and Fourth or the deference of the Fifth and Sixth is open. Preserve the issue as if it decides the case, because here it still can.
The fatal flaws
- It reads the privilege down to a formality. The statute calls counsel a privilege and makes you pay for it. Fine. A privilege you cannot use is a privilege on paper. Two weeks in a cell, no money, a call list that rings out, that is the reality the floor pretends away.
- It calls the C-B- language dicta. A federal court did not treat it that way this spring. The Board sided with a dissent against a published majority and called it housekeeping.
- It shrinks the statutory floor and leaves the constitutional one blank. The panel notes the Fifth Circuit only assumes a Fifth Amendment right. A-K-R- does not decide it. Less statute, undefined constitution.
- It blames a detained man for the docket’s result. Footnote 2 says a lone asylum applicant needs almost no documents. Maybe. The decision reads a detained, unschooled, pro se man’s failure to file as his own fault, not as the predictable yield of detention and speed.
Now the honest part. C-B- did float free of the statute, and the decision does kill real stall tactics. Every judge knows the game, and this ends some of it. The housekeeping is fair. The timing is not. You pull the brake in the exact season the system runs hottest and holds the most people, and you make counsel hardest to use precisely when it decides the case.
Practice advisory
What to do now
- Triage detained cases by hearing date. Flag anyone past the floor without counsel.
- Put the EOIR pro bono list in the client’s hand the same day. Document it.
- File a timely I-589 to block abandonment, bare bones if you must.
- Paper the diligence in real time. Every call, every document request, dated.
- Make the objection on the record: privilege, due process, prejudice, relief.
- Track the split. Rodriguez-Solis holds the Fourth. The Board’s rule cuts the other way where the question is open.
In a slower season this reads as tidy doctrine. Right now it reads as a green light. The Fourth Circuit protected the right to counsel this spring. The Board cut it in August. The machine keeps running while the courts decide who was right.
This post is legal commentary, not legal advice, and does not create an attorney-client relationship. Immigration law changes quickly and applies differently to each set of facts. If you or someone you know faces removal proceedings, consult a licensed immigration attorney about your specific situation.
