Law360 published this article on June 7, 2023.

The Board of Immigration Appeals recently held in Matter of Garcia that choice of law should be determined by the location of the immigration court in which a charging document is filed and where jurisdiction vests, except in instances where a charging document is filed at an administrative control court,1 or when the immigration judge grants a change of venue.2

A rule that settles choice of law issues is certainly timely and warranted given the frequency of remote immigration hearings via Webex, where an immigration judge is often in one location, the noncitizen is in another location, the government counsel is in a third location, the counsel for the respondent is in a fourth location and finally the court with administrative control sits in yet another location.3

The board is correct that the ability to appear from multiple locations enabled by internetbased hearings necessitates a uniform rule that provides transparency and predictability in the choice of law analysis.4 However, the board’s decision leaves important issues unaddressed.

First, the rule in Matter of Garcia is far from innocuous. The board’s attempt at establishing transparency and predictability may be at the expense of fairness to noncitizens, particularly those who are unrepresented or detained by U.S. Immigration and Customs Enforcement.

Hinging the applicable case law on the filing location of the charging document or notice to appear that is unilaterally chosen by ICE effectively grants ICE the upper hand in determining the applicable case law.

The equity implications of this rule are staggering because diverging interpretations of the law often spell the difference between a grant of relief and a removal order.

While choice of law may be changed by way of a motion to change venue, this option is sometimes illusory since most of the factors once considered to be good causes for a change of venue — such as the location of a witness, cost of transporting evidence or witnesses to a new location, and factors commonly associated with a noncitizen’s place of residence — became less relevant in the age of Webex.5

For individuals who are detained, the inequity in terms of ability to request a change of venue is much more pronounced. ICE’s statutorily unlimited authority to transfer detainees generally enables detention relocation anywhere and anytime.6

Since immigrants in ICE custody do not have a say in where they will be detained, they are rarely able to argue factors associated with their place of residence. On the other hand, ICE’s ability to control a detained noncitizen’s place of residence enhances its ability to change venue and the applicable law.

Additionally, achieving consistency and transparency remains challenging despite the board’s choice of law rule.

Rules created by administrative agencies that are functionally equivalent to legislation, like the board’s formulation in Matter of Garcia, should have prospective application so as not to unfairly upset settled choice of law expectations.7 The board’s lapse in specifying whether the rule on choice of law applies retroactively creates uncertainty on the applicable law in pending immigration cases filed prior to the Garcia decision.

Similarly, the fact that immigration judges are given discretion to determine choice of law in instances where a charging document is filed at an administrative control court also undercuts the board’s stated objective of predictability. The possibility that an administrative control court can be reassigned and changed throughout the course of proceedings renders the choice of law rule under Garcia unstable.

Lastly, since several circuit courts of appeal have diverging interpretations of Section 242(b)(2) of the Immigration and Nationality Act, which establishes venue for purposes of filing a petition for review, a petition could be filed in multiple circuits.

A petition for review may be filed in the circuit court of appeals where the notice to appear was filed,8 where the administrative control court is located,9 where the immigration judge sits10 or at the immigration court to which venue has been changed.11

In situations where there is a circuit split and each circuit court decides to exercise its right to adjudicate a particular issue, it becomes especially difficult to insist that the law of one circuit trumps another.

Because each circuit court has the option to arrive at its own determination of the merits of federal questions presented to it, it is highly possible that the applicable case law may change when the case gets reviewed by the circuit courts.12 Given this, what law will ultimately control in adjudicating petitions for review remains unclear.

It is evident from these unresolved issues that the board’s work is not done. Thus, it is incumbent upon the board to come up with a better choice of law rule — one that honors settled expectations in cases of remand, reflects the applicable law in case of circuit court review, and does not have the unintended consequence of tipping the scale in the government’s favor.

1“An administrative control Immigration Court is one that creates and maintains Records of Proceedings for Immigration Courts within an assigned geographical area. All documents and correspondence pertaining to a Record of Proceeding shall be filed with the Immigration Court having administrative control over that Record of Proceeding and shall not be filed with any other Immigration Court.” 8 CFR § 1003.11.

2Matter of Garcia, 28 I. & N. Dec. 693 (BIA 2023).

3Internet-based video teleconferencing platform.

4Directors Memo (DM) 22-07: Internet-Based Hearings (August 11, 2022)

5Matter of Rahman, 20 I&N Dec. 480 (BIA 1992).

6There is no provision under the Immigration and Nationality Act (INA) that limits ICE transfers.

7Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815–16 (1988) (“[W]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.”).

8Sarr v. Garland, 50 F.4th 326, 332 (2d Cir. 2022).

9Ramos v. Ashcroft, 371 F.3d 948, 949 (7th Cir. 2004).

10Herrera-Alcala v. Garland, 39 F.4th 233,241 (4th Cir. 2022).

11Sarr v. Garland, 50 F.4th 326, 332 (2d Cir. 2022), Plancarte Sauceda v. Garland, 23 F.4th 824, 831-32 (9th Cir. 2022).

12Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993); Adeeko v. Garland, 3 F.4th 741, 746 (5th Cir. 2021); Ballesteros v. Ashcroft, 452 F.3d 1153, 1157 (10th Cir. 2006).