BIA Holds That For Choice Of Law Purposes, The Controlling Circuit Law In Immigration Court Proceedings 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. Matter of R-C-R, 28 I&N Dec. 74 (BIA 2020), Clarified.
On March 24, 2023, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of the decision of an Immigration Judge (IJ) denying Respondent’s application for relief, including his request for cancellation of removal per INA § 240A(b)(1). While the appeal was pending, the BIA requested supplemental briefing on whether the case was governed by the law of the Third or Fourth Circuit Court of Appeals.
Respondent had entered the U.S. without inspection. Almost 18 years later, DHS issued a Notice to Appear (NTA) charging him with removability under INA § 212(a)(6)(A)(i) for being present without admission or parole. The NTA was filed with the Immigration Court in Philadelphia, Pennsylvania and directed Respondent to appear for his initial hearing there. Three notices of hearing scheduled hearings in Philadelphia and Respondent appeared there; DHS subsequently filed a motion to change venue to the Immigration Court in York, Pennsylvania because Respondent was newly detained at the York County Prison. He appeared in this court several times and the IJs that presided over all of Respondent’s hearings “sat in either the Philadelphia or York Immigration Courts.” Additionally, all of Respondent’s evidentiary submission were filed with either the Philadelphia or York Immigration Courts.
At the beginning of Respondent’s individual hearing, the IJ stated on the record that she was conducting a merits hearing for the York Immigration Court via teleconference, while physically located in Falls Church, Virginia at the Falls Church Immigration Adjudication Center. Her oral decision and summary order both contained the York court’s heading and were supported by an addendum of law citing Third Circuit law. She also stated on the record that “the hearing was completed via televideo in Pennsylvania.”
The Board began its analysis by discussing the issue of choice of law, first setting forth the proper legal and procedural framework. The question presented was whether these proceedings arose within the jurisdiction, and were thus covered by the law, of the Third (Pennsylvania) or Fourth (Virginia) Circuit. The opinion noted that IJs and the BIA are bound to follow the precedent of the Board, the Attorney General, and the circuit court of appeals with jurisdiction over the geographic region where a case occurs.
Where the parties and IJ appear at the same location, stated the Board, choice of law determinations are generally clear. However, where the parties and/or the IJ appear from different locations, including from different judicial circuits, the question becomes more difficult as to which circuit’s law applies. This is exacerbated by both the Immigration Court system’s expansion and the corresponding increase in the use of remote hearings held via video or telephonic conference. Additionally, court procedures sometimes involve the use of administrative control courts, defined by regulation as courts that create and maintain Records of Proceedings for Immigration Courts “within an assigned geographical area.” Respondents must file all documents and correspondence in a particular case with the court having administrative control over a Record of Proceedings and not with any other Immigration Court.
The decision then found that in considering situations where the parties and/or the IJ are appearing remotely from different circuits, “the practical implications present in the choice of law analysis become even more evident.” The BIA made clear that it desires to avoid scenarios where “a different circuit’s law will apply in a petition for review of proceedings that the parties, the Immigration Judge, and [the] Board believed were governed by another circuit’s law”; such occurrences “upset settled expectations and can raise questions about the fairness of proceedings.”
Next, the BIA-stating that it is bound to follow the law of the circuit “with jurisdiction over the region where an Immigration Court is located” – noted that it had previously held, in Matter of R-C-R, 28 I&N Dec. 74 (BIA 2020), that the circuit law applied to proceedings conducted via video conference is the law governing the docketed hearing location, as opposed to the location of the Administrative control court . In R-C-R, the respondent was located and the case docketed in Louisiana, while the IJ conducted the remote hearing from an administrative control court in New York; the law of the former location’s circuit was applied.
The Board then discussed INA § 242(b)(2), which requires that petitions for review be filed with the court of appeals for the judicial circuit in which the IJ completed proceedings, stating that this provision is used by circuit courts to determine venue. In contrast, the BIA’s choice of law analysis identifies the controlling circuit law in Immigration Court. However, “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 control at the circuit court level.”
The decision ultimately found the analysis and holding of the Second Circuit in Sarr v. Garland, 50 F.4th 326 (2d. Cir. 2022) persuasive. There, the court of appeals held that generally an IJ completes proceedings and, thus, venue lies where proceedings commenced (absent a change of venue), so an IJ “who is not physically present in a location” can conduct a virtual hearing by video conference – completing the proceeding – pursuant to the law of the circuit on the charging document.
The opinion next noted that, in the supplemental briefing, DHS had argued that Third Circuit law controlled the case because proceedings had commenced in Philadelphia and venue was later changed to York. In outlining its holding, the Board first concluded that its regulatory authority must give rise to “a rule providing consistency and transparency in the choice of law analysis”. Additionally, any such rule must acknowledge and respond to “the technological advancements in Immigration Court that allow for what is essentially a deconstructed courtroom where the judge, parties, witnesses, and interpreters may all appear from separate physical locations…” Tying the controlling circuit law solely to the IJ’s physical location at the final hearing could affect the controlling circuit law at prior hearings and “significantly impact the parties’ ability to prepare legal arguments pursuant to the applicable circuit law.”
Further, the BIA read the regulation to require that venue lies at the Immigration Court where jurisdiction vests and proceedings before an IJ commence, and only after the charging document is filed with the court may venue be changed. Accordingly, the Board held that the controlling circuit law in proceedings 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 a motion to change venue is subsequently granted.
Consequently, concluded the BIA, jurisdiction presumptively vests at the Immigration Court where the charging document is filed; generally, the same court listed on the charging document. This circuit law controls regardless of where the parties and the IJ are located during the hearing. As such, controlling circuit law may only be changed where an IJ grants a motion to change venue.
As a result, venue does not necessarily lie at an administrative control court solely because a charging document is filed there. In practice, such courts may “solely maintain, and have custodial responsibility for, the record of proceedings,” as opposed to being courts where proceedings are commenced per regulation. Therefore, when a charging document is filed at an administrative control court, the IJ “should consider any arguments from the parties and make a finding identifying the Immigration Court where jurisdiction vested.” For these reasons, the Board clarified its decision in R-C-R- to hold that the controlling circuit law is that which governs the geographic location of the court where jurisdiction vests and proceedings commence, absent a change of venue.
The BIA further found that, “as a matter of best practice”, IJs should clearly identify on the record at the start of each merits hearing which circuit law applies and where the IJ and parties are physically located. Here the NTA directed Respondent to appear and was filed in Philadelphia. Venue was later changed to York. Both courts are within the jurisdiction of the Third Circuit. Therefore, these proceeding fell under that circuit court’s controlling law.
As the Board affirmed the IJ’s determination that Respondent had not established that his son would experience exceptional and extremely unusual hardship if he was removed, it held that he had failed to establish cancellation of removal eligibility under INA § 240A(b)(1). The controlling law to be applied here was that of the Third Circuit. The appeal was dismissed. Matter of Garcia, 28 I&N Dec. 693 (BIA 2023).
