The Board of Immigration Appeals recently issued a decision in Matter of Garcia, 28 I&N Dec. 693 (BIA 2023). In this precedential decision, the BIA held that the controlling circuit law in immigration court proceedings is the law governing the geographic location of the immigration court where venue lies. The increase in remote immigration court hearings since the COVID-19 pandemic has led to confusion among practitioners, the Executive Office for Immigration Review, or EOIR, and the federal courts as to which circuit law applies. While the BIA in Garcia attempts to resolve this confusion and does set forth a common-sense approach to choice of law issues, it notably conflicts with a precedential decision issued by the Fourth Circuit in 2022.

Matter of Garcia concerns a Salvadoran national who was issued a Notice to Appear, or NTA, at the Philadelphia immigration court, located in the Third Circuit. The NTA was also filed with the Philadelphia immigration court. The respondent was subsequently detained at the York County Prison in York, Pennsylvania, and the Department of Homeland Security filed a motion to change the venue to the York immigration court. The change of venue was granted, and the respondent physically appeared before the York immigration court. As the BIA explained, the Immigration Judges, or IJs, presiding over the removal proceedings sat in either the Philadelphia or York immigration courts and the oral decision and summary order contained the heading of the York immigration court. However, the IJ adjudicating the hearing appeared from her physical location in Falls Church, Virginia, at the Falls Church Immigration Adjudication Center, located in the Fourth Circuit. The case therefore presented the question of which Circuit Court law the agency should apply — that of the Third or the Fourth Circuit. IJs and the BIA must follow the law of the circuit court of appeals with jurisdiction over an individual’s removal proceeding, and there are significant variations among courts of appeals with respect to asylum eligibility and other eligibility for relief under the immigration law.

Ultimately, the BIA determined that Mr. Garcia’s proceedings were within the jurisdiction of the Third Circuit. The BIA first noted that both the Third and Fourth Circuits addressed the choice of law question in separate published decisions, reaching opposite conclusions. In Luziga v. Att’y Gen., 937 F.3d 244, 250 (3d Cir. 2019), the Third Circuit found venue appropriate in its circuit where an IJ who was physically located in Virginia presided over proceedings in Pennsylvania. However, in Herrera-Alcala v. Garland, 39 F.4th 233, 241 (4th Cir. 2022), the Fourth Circuit found that the IJ’s physical location when he or she completed the proceeding determined the judicial circuit where the petition for review should be filed.

Ultimately, the BIA concluded that the best rule is one that provides consistency and transparency in the choice of law. The BIA rejected a rule that would tie the controlling circuit law to the Immigration Judge’s physical location at a final hearing, which the BIA noted could change at the last minute and impact the parties’ ability to prepare legal arguments pursuant to applicable circuit law. The BIA held that “the controlling circuit court law in immigration court proceedings is the law governing the geographic location of the immigration court where venue lies and will only change if an Immigration Judge grants a change of venue to another immigration court.” Garcia, 28 I&N Dec. 703. The BIA also noted that an IJ should consider, prior to granting a chance of venue, the impact that granting such a motion may have on the circuit law that is applicable to a particular case.

As noted above, the BIA’s decision conflicts with a precedential decision issued by the Fourth Circuit. Therefore, the choice of law conundrum does not appear to be a settled matter in that Circuit, and practitioners may continue to make good faith arguments as to choice of law if it is advantageous to their clients to do so. Practitioners should also keep in mind that venue in the courts of appeals is not a jurisdictional issue so if a court of appeals finds that venue is improper in a particular petition for review it may simply transfer the case rather than dismiss it entirely. This will prevent practitioners from having a case dismissed based on any lingering confusion about where to file a petition for review.