Zimmer's Books

by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Matter of Garcia, 28 I&N Dec. 693 (BIA 2023) are as follows:

 

Case History

The Department of Homeland Security (“DHS”) issued a notice to appear.

 

An Immigration Judge sustained the removal charge and denied the respondent’s relief application.

 

The respondent appealed from the Immigration Judge’s decision to the Board of Immigration Appeals (“BIA”).

 

The BIA affirmed the Immigration Judge’s decision.

 

Facts

• The respondent is a native and citizen of El Salvador who entered the United States in or about September 2000.
• On July 17, 2018, the DHS issued a notice to appear charging that the respondent is subject to removal from the United States under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as amended (“the Act”), as an alien who is present in the United States without being admitted or paroled.
• The notice to appear directed the respondent to appear for a hearing before the Immigration Court in Philadelphia, Pennsylvania, where the notice to appear was filed.
• The DHS subsequently filed a motion to change venue to the Immigration Court in York, Pennsylvania where the respondent was most recently being detained at the York County Prison.
• An Immigration Judge granted the DHS’ motion to change venue, and notified the respondent the respondent to appear before the York Immigration Court.
• The respondent subsequently physically appeared at the York Immigration Court on November 24, 2020 and January 21, 2021.
• The Immigration Judges who presided over the entirety of the respondent’s proceedings, prior to his final hearing, sat in either the Philadelphia or York Immigration Courts.
• The Immigration Judge who conducted the respondent’s final merit hearing by means of teleconference for the York Immigration Court appeared from her physical location in Falls Church, Virginia, at the Falls Church Immigration Adjudication Center.
• The immigration courts in Pennsylvania are geographically located within the jurisdiction of the Third Circuit Court of Appeal and the immigration courts in Virginia are geographically located within the jurisdiction of the Fourth Circuit Court of Appeal.
• The Immigration Judge denied the respondent’s application for cancellation of removal under section 240A(b) of the Act.
• The respondent filed a timely appeal.
• The BIA agreed with the Immigration Judge’s assessment of hardship in the context of the respondent’s cancellation of removal application under section 240A(b)(1)(D) of the Act and affirmed the Immigration Judge’s denial of his application.

 

Held

DISMISSED

The law of the Third Court of Appeal applies in the immigration court proceedings under review.

 

Rationale

The BIA reviewed the case law of the Third Circuit Court of Appeal, the Fourth Circuit Court of Appeal and the Second Circuit Court of Appeal.  Ultimately, the BIA found the reasoning of the Second Circuit Court of Appeal which was grounded on regulations governing immigration court jurisdiction and venue persuasive and reasoned as follows:

 

• The BIA, as well as Immigration Judges, are bound to follow the precedent of the circuit courts of appeal with jurisdiction over the region where a case arises.
• Parties have a reasonable expectation that the same circuit law that governed their immigration proceedings will also govern the judicial review of those proceedings.
• Therefore, the same circuit law that will be used to resolve a future petition for review should also be applied in the underlying proceedings so that adjudicators may consider the relevant issues, and the parties may present arguments, pursuant to the law that will ultimately govern appellate review.
• “Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by [DHS].”  See 8 C.F.R. § 1003.14(a).
• Venue regulations, indicate that an “Immigration Judge, for good cause, may change venue only upon motion by one of the parties, after the charging document has been filed with the Immigration Court.”  See 8 C.F.R. § 1003.20
• In light of regulations governing jurisdiction and venue quoted above, the Second Circuit Court of Appeal determined that appellate court jurisdiction is established where the immigration charging document was filed, unless venue is changed.  Sarr v. Garland, 50 F.4th 326, at 331–34 (2d Cir. 2022).
• Therefore, the controlling circuit law in Immigration Court proceedings for choice of law purposes is the law governing the geographic location of the Immigration Court where venue lies; namely, where jurisdiction vests and proceedings commence upon the filing of a charging document, and will only change if an Immigration Judge subsequently grants a change of venue to another Immigration Court.  See 8 C.F.R. §§ 1003.14(a), 1003.20(a).

 

Commentary

As pointed out by the DHS in its appellate brief, Congress provided authorization for video and teleconference proceedings under section 240(b)(2) of the Act, at the same time it amended the venue provision at section 242(b)(2) of the Act.  See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. 104-208, 110 Stat. 3009-546, 3009-589, 3009-608.

 

Before teleconferencing and video conferencing, jurisdictional issues were relatively simple.  For practical purposes, venue and jurisdiction always could be determined by the location of the Immigration Judge at the time of the final hearing.

 

Since venue governs choice of law jurisdiction, it might be helpful to some to review the standards that govern motions to change venue.

 

A motion for change of venue can be granted only for good cause.  See 8 C.F.R. 1003.20(b); Matter of Velasquez, 19 I&N Dec. 377, at 382 (BIA 1986).

 

Factors governing the determination of good cause relating to change of venue have been found to include:

1. administrative convenience;
2. expeditious treatment of the case;
3. location of witnesses;
4. costs of transporting witnesses and/or evidence;
5. the Government’s interest in proceeding in a particular ‘location; and
6. the respondent’s place of residence.  Garcia-Guzman v. Reno, 65 F.Supp.2d 1077, at 1091 (N.D. Cal. 1999).

 

The BIA considered whether good cause existed for a change of venue where the respondent was in custody.  Matter of Rahman, 20 I&N Dec. 480 (BIA 1992). 

In Matter of Rahman, the respondent was detained in Arizona, while his attorney of choice, witnesses and an interpreter were available in Los Angeles, California.

In Matter of Rahman, the BIA sustained the Government’s appeal of the Immigration Judge’s order changing venue to Los Angeles, California, reasoning that:

• there was no evidence the respondent had ever resided anywhere in the United States;
• interpreters were available in Arizona;
• and the respondent did not have a long-standing attorney-client relationship with his California attorney.  Matter of Rahman, at 484.

Practitioners should also keep in mind that the place of detention alone does not control where venue should vest.  Even if the DHS takes a respondent into custody and detains that person in a distant detention facility, factors such as the respondent’s residence, location of the respondent’s witnesses, a long standing attorney-client relationship or other hardships to the respondent that will arise from a change of venue might outweigh the DHS legitimate interests in  administrative convenience, expeditious case resolution, the location of DHS witnesses (usually not a governing factor because the DHS does not usually present witnesses), and other DHS costs and expenses or interest in establishing venue in a particular location.

If venue is maintained in a location other than the place where a respondent is detained, the DHS will need to transport the respondent to the location where venue is established for the conduct of immigration court proceedings.  Video or telephonic conferencing, however, might obviate the need for physical transportation. 

The availability of video or telephonic conferencing seems likely to diminish the strength of the DHS position relating to venue controversies. 

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