EOIR issues new guidance on change of venue procedures
On January 17, 2018, the Executive Office for Immigration Review (EOIR) issued Operating Policies and Procedures Memorandum 18-01: Change of Venue (OPPM 18-01). This OPPM replaces OPPM 01-02, which had been in effect since October 9, 2001. The majority of the new memorandum maintains the prior policies and procedures, with some small changes in word choice and updates such as replacing ‘Immigration and Naturalization Service’ with ‘Department of Homeland Security.’ However, OPPM 18-01 adds new guidance for judges deciding motions to change venue, and adds new rules for scheduling cases when a change of venue motion has been granted. These changes are unlikely to speed up the processing times for immigration cases, or to resolve the lengthy backlog in the Immigration Courts.
In OPPM 18-01, MaryBeth Keller, the Chief Immigration Judge, gives the following new guidance for immigration judges (IJs) deciding motions to change venue:
- More than two motions to change venue by the same party are disfavored
- Motions to change venue filed solely to delay the case should not be condoned
- Motions to change venue filed after the merits hearing has begun are disfavored.
It is important to note that the final paragraph of OPPM 18-01 explicitly states that these are just guidelines; this does not mandate the outcome of any case. Immigration judges still have discretion to grant motions to change venue in these disfavored situations. Additionally, the standard for granting change of venue motions – that ‘good cause’ must be shown – remains unchanged. The premise of this new guidance is that respondents are frivolously filing motions to change venue in order to delay their cases, and IJs should be cautious about granting such motions. However, because no data was provided to support this assertion that change of venue motions are being used as a delay tactic, and because the standard for granting a change of venue motion remains the same, the effects of this guidance on IJ decisions remains to be seen.
An important, mandatory change comes from Section V.B. of the memo, Pleadings, Issue Resolution and Scheduling. This section instructs IJs to consider whether the case is ready to be scheduled for an individual merits hearing before granting a change of venue. If the IJ believes the case is ready to be scheduled for a merits hearing, he or she should indicate this in the file, so the new court can schedule a merits hearing. If a non-detained case is already scheduled for a merits hearing and venue is subsequently changed, the new court should schedule the case for a merits hearing, without an intervening master calendar hearing.
If an IJ anticipates scheduling the case for an individual merits hearing in the new venue, without an intervening master calendar hearing, the IJ must advise the respondent that any arrangements to retain current counsel or to obtain new counsel should be done sufficiently in advance of the merits hearing, so that the hearing can proceed on the date scheduled. When deciding a motion to continue filed by the respondent in the new venue, the IJ should consider the respondent’s efforts to resolve any representation issues before the hearing, and the amount of time the respondent had to do so.
The memorandum also creates a new rule for cases scheduled for a master calendar hearing after a change of venue has been granted. OPPM 18-01 provides that where a change of venue motion has been granted and the case will be scheduled for a master calendar hearing, “the hearing should occur as soon as practicable, and no later than 14 days (for a detained case) or 60 days (for a non-detained case) after the date the change of venue was granted.”
These procedural changes are unlikely to help resolve the backlog of cases in the Immigration Court. This merely forces courts to prioritize scheduling transferred cases over newly filed cases. Encouraging IJs to schedule cases for an individual merits hearing, without an intervening master calendar hearing in the new venue, may increase the backlog. At least some cases will not be able to go forward on a merits hearing immediately in the new venue for a variety of reasons, including DHS not receiving the file or the IJ discovering an issue in the prior proceedings that needs to be addressed before the merits hearing can begin. This will result in wasted individual merits hearing slots that could have been used to resolve other cases.