Law360 published this article on August 9, 2023. Written by Brittain Eakin from Law360.

A Board of Immigration Appeals decision in March tying jurisdiction to the immigration court where charging documents are filed has attorneys saying nearly five months later that it left several key issues around choice of law unresolved.

In Matter of Jose Antonio Garcia, the BIA held that immigration proceedings are governed by the law of the circuit where immigration proceedings commence, only to be changed if immigration judges grant a change of venue and send a case to another immigration court.

Immigration court proceedings are increasingly being conducted remotely, with judges, noncitizens and attorneys appearing from different locations — often spanning different circuits — which before Matter of Garcia made it difficult to sort out what circuit law applied.

While the Matter of Garcia decision has tamped down on some of that uncertainty, it hasn’t cured it, according to Monica Mananzan, a managing attorney of the detained adult program at the CapitalArea Immigrants’ Rights Coalition.

“I think its intentions were well-meaning, but I think that they should have thought this through because there were a lot of things that they didn’t really account for,” she said.

Mananzan largely represents noncitizens who get apprehended in Washington, D.C., Virginia or Maryland — which are in the Fourth Circuit — but who end up detained at Moshannon ValleyProcessing Center in Philipsburg, Pennsylvania, which is in the Third Circuit.

To complicate matters further, the charging documents often get filed in Cleveland, Ohio, which lies in the Sixth Circuit, but the judges who hear the cases often appear remotely from adjudication centers in Virginia, in the Fourth Circuit.

Post-Matter of Garcia, Mananzan said immigration judges in the Fourth Circuit are now mostly applying Sixth Circuit law, but are also applying Fourth Circuit law.

“They’re hedging their bets because if we were to file a petition for review, somewhere down the line,the Fourth Circuit is going to hear that case by virtue of the fact that the adjudication center is in theFourth Circuit,” she said.

For now, the practical outcome is that it’s straining both judges and immigration attorneys, whoMananzan said are saddled with extra work because they have to brief case law in both circuits.

Mananzan also said Matter of Garcia failed to grapple with the fact that tying choice of law to the immigration court where charging documents are filed tips the scales against noncitizens because the U.S. Department of Homeland Security decides where noncitizens get detained, and, accordingly, where the charging documents get filed.

“You’re essentially giving DHS the power to determine choice of law,” she said.

Matter of Garcia also lies in tension with case law governing appeals of BIA decisions. In its 2022 decision in Herrera-Alcala v. Garland, the Fourth Circuit held that the venue for BIA appeals is decided according to the geographic location of the immigration judge who completes the proceedings, regardless of where the proceedings were initiated.

Adding another layer of complexity, the Third Circuit’s September 2019 decision in Luziga v. Attorney General reached the opposite conclusion about the appropriate venue for BIA appeals. These conflicting decisions have left an opening for noncitizens seeking review of BIA decisions to pick the most favorable circuit when filing a petition for review, according to Ben Winograd, an attorney with the Immigrant & Refugee Appellate Center LLC.

Matter of Garcia did not account for whether accommodations should be made in such cases, Winograd said.

Speaking hypothetically, Winograd suggested a situation where, according to Matter of Garcia, an immigration judge should apply Third Circuit law. However, a noncitizen’s attorney could pose the argument that because the judge is geographically located in the Fourth Circuit, Fourth Circuit law should apply.

“In that scenario, should an immigration judge be able to apply Fourth Circuit law regardless? It’s just kind of hard to say. Arguments could be made both ways, but that’s just something that’s kind of unclear,” Winograd said. “An argument could be made that maybe immigration judges should be able to deviate from Matter of Garcia, or that perhaps the board itself should clarify Matter Garcia to grasp what should happen in that situation.”

Jonah Eaton, director of legal services at the Nationalities Service Center, said Matter of Garcia did bring more certainty to the majority of cases. But things will remain murky for “marginal” cases, such as those Winograd hypothesized about or others where it’s not clear where the case was docketed, he said.

Footnote 12 in Matter of Garcia said that most times immigration proceedings will commence at the same immigration court where the charging document is filed, but that doesn’t always happen in practice. When a discrepancy exists, noncitizens can raise choice of law issues with the immigration judge, according to the footnote.

But Eaton called that “a cop-out,” saying the BIA did not need to leave that kind of ambiguity in the decision.

“It definitely does not settle things as absolutely as the BIA sort of seemed to say that they were doing,” Eaton said.

Despite all of those concerns, Annelise Araujo, an immigration attorney and principal owner of Boston-based Araujo & Fisher LLC, said Matter of Garcia was an overall positive decision and has brought more certainty, particularly for those practicing in the First Circuit.

Prior to Matter of Garcia, many immigration cases in Boston — some of which were fully briefed under First Circuit law — would get sent to an adjudication center in Virginia at the last minute, where she said some immigration judges would apply Fourth Circuit law.

“That’s problematic,” Araujo said. “So what Matter of Garcia has forced, I think, the court to do, is return the cases to Boston, which has been very, very positive because then we are pretty clear about First Circuit law applying.”