In a recent precedential decision, the Board of Immigration Appeals (BIA) followed Matter of Garcia, 28 I&N Dec. 693 (BIA 2023) and held that the controlling circuit law in immigration court proceedings is the law governing the geographic location of the immigration court where venue lies. Matter of M-N-I-, 28 I&N Dec. 803 (BIA, 2024). The BIA found that immigration courts cannot change venue by changing the court that has administrative control over the record of proceedings; rather, only the parties can move to change venue.

Matter of M-N-I- concerns a Moroccan citizen who was held at a detention center in Philipsburg, Pennsylvania, throughout the proceedings. They commenced with the filing of a Notice to Appear (NTA) at the Cleveland Immigration Court, which is within the jurisdiction of the United States Court of Appeals for the Sixth Circuit. The NTA ordered the respondent to appear at the Cleveland Immigration Court, and for several months his hearing notices came from the Cleveland Immigration Court. The internet-based hearings were conducted by an Immigration Judge from the Richmond, Virginia, Immigration Adjudication Center.

Internal records show that cases at the Philipsburg detention center, including the respondent’s case, were later reassigned for administrative control via an internal administrative process to the Elizabeth, New Jersey, Immigration Court, which is within the Third Circuit. The Immigration Judge did not issue an order reflecting this change. The respondent subsequently received notice of an internet-based individual hearing. That notice was issued from the Elizabeth Immigration Court but listed the Cleveland Immigration Court as the hearing location. The respondent subsequently moved to change venue to the Cleveland Immigration Court, which was denied for lack of good cause. At the individual hearing, the Immigration Judge applied Third Circuit law and denied the respondent deferral of removal under the Convention Against Torture (CAT).

Ultimately, the BIA agreed with the respondent that the Immigration Judge had applied the incorrect circuit court’s law. The BIA cited Matter of Garcia in stating: “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.” Matter of M-N-I at 805, citing Matter of Garcia, 28 I&N Dec. at 703 (emphasis added).

The BIA acknowledged that “venue is not necessarily static” and may change. It emphasized, however, that “only a party may initiate a change in venue and may only do so via a motion to change venue.” Matter of M-N-I at 805. The BIA then drew a distinction between an administrative control court designation, on the one hand, and venue and the corresponding choice of law on the other. It said that although the two are related, Executive Office of Immigration Review’s (EOIR) administrative control designations “do not replace nor circumvent the regulatory requirements for a change of venue,” and that EOIR cannot “effectuate a venue change unilaterally from the Immigration Court where jurisdiction vested to a newly designated Immigration Court.” Id. While previous versions of the regulations allowed Immigration Judges to change venue sua sponte and without prior notice to the parties, current regulations do not permit such changes.

By only permitting venue and the choice of law to change upon motion by one of the parties for good cause shown, the BIA noted, parties are ensured adequate notice of the law to be applied and an opportunity to challenge any proposed change in venue and choice of law. They wrote, “Tying the controlling circuit law to factors outside the parties’ control, such as the Immigration Judge’s physical location at the final hearing [as was the case in Matter of Garcia] or the Immigration Court with subsequent administrative control over the record of proceedings [as was the case in Matter of M-N-I-] could. . . significantly impact the parties’ ability to prepare legal arguments pursuant to the applicable circuit law.” Id. at 806 (internal citations and quotations omitted).

Applying these principles to the respondent’s case, the BIA determined that the Immigration Judge could not apply Third Circuit law, because neither of the parties had moved to change venue to the Elizabeth Immigration Court in the Third Circuit, which meant that venue was proper at the Cleveland Immigration Court in the Sixth Circuit. The NTA was initially filed at that court, the respondent was ordered to appear there, and hearing notices for several months were issued from that court. The BIA remanded the respondent’s case so that the Immigration Judge could conduct further fact finding and legal analysis in the respondent’s CAT claims under Sixth Circuit law.

In this day of internet-based hearings, where administrative control over geographic areas can change without notice and immigration judges sit in circuits far from the respondent or even the immigration court with control over the case, practitioners must be aware of the initial procedural history of their client’s case and ask some critical questions: In which court was the NTA filed? Where was my client ordered to appear? Which court issued my client’s hearing notices? Practitioners should have these facts on hand and be prepared to argue against any attempt by the Department of Homeland Security or the Immigration Judge to apply the law of the circuit with jurisdiction over any subsequent court of administrative control, especially where that application would be detrimental to their client’s case.