In Matter of Garcia, 28 I&N Dec. 693 (BIA 2023) the Board of Immigration Appeals (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. 

A year later the Board clarified this further in Matter of M-N-I-, 28 I&N Dec. 803 (BIA 2024), explaining that since choice of law is dependent on venue in Immigration Court proceedings, the controlling circuit law is not affected by a change in the administrative control court and will only change upon the granting of a motion to change venue. [See Full Decision]

The proceedings commenced with the filing of a Notice to Appear (“NTA”) at the Cleveland, Ohio Immigration Court, which is within the jurisdiction of the United States Court of Appeals for the Sixth Circuit. The Cleveland Immigration Court was the designated administrative control court for hearings docketed at Moshannon at that time. See 8 C.F.R. § 1003.11 (2024) (“An administrative control Immigration Court is one that creates and maintains Records of Proceedings for Immigration Courts within an assigned geographical area.”). The respondent’s hearing notices were issued from the Cleveland Immigration Court, and the internet-based hearings were conducted by an Immigration Judge who was physically located in Richmond, Virginia. The Elizabeth, New Jersey Immigration Court was later assigned administrative control over the respondent’s case and that Court is located within the jurisdiction of the United States Court of Appeals for the Third Circuit.

The Immigration Judge then issued a decision in that case applying Third Circuit case law, under the impression that since the administrative control over the case transferred to the New Jersey Court and that Court is in the Third Circuit, then Third Circuit case law should control the decision in that case. The issue on appeal then became, is the case law of the location where the proceedings were initiated (the Sixth Circuit) controlling or the case law of the location that had administrative control over the case controlling (the Third Circuit).

The BIA explains in Matter M-N-I-, that administrative control is not the same as venue and a case can be transferred to another immigration court through a change of administrative control but that is not the same as a change of venue.

The administrative control change did not change the venue of the case.

The agency’s administrative control designation over a record of proceedings does not replace nor circumvent the regulatory requirements for a change of venue. See Matter of L-M-P-, 27 I&N Dec. 265, 267 (BIA 2018) (affirming that neither the Immigration Judge nor the Board has the “authority to disregard the regulations, which have the force and effect of law”). Even if the agency’s administrative control designation over a record of proceedings changes during the removal proceedings, the agency may not effectuate a venue change unilaterally from the Immigration Court where jurisdiction vested to a newly designated Immigration Court. Cf. 8 C.F.R. § 1003.10(b) (2020) (providing that Immigration Judges may only exercise the powers and duties delegated to them by the Immigration and Nationality Act and by the Attorney General through regulation).

For venue to change in these described circumstances, a motion for a change of venue by one of the parties is required. See 8 C.F.R. § 1003.20(b).

The Board concluded that the Judge should have applied Sixth Circuit case law because that is where venue was proper since neither party moved for a change of venue.

“We recently held in Matter of Garcia that ‘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 Garcia, 28 I&N Dec. 693 703 (BIA 2023) (emphasis added); see also 8 C.F.R. §§ 1003.14(a), 1003.20(a)–(b) (2024).”

Venue is not necessarily static and may change over the course of removal proceedings. However, only a party may initiate a change in venue and may only do so via a motion to change venue. 8 C.F.R. § 1003.20(b); see also Matter of Garcia, 28 I&N Dec. at 703 (providing that the filing of a Form I-830, Notice to EOIR: Alien Address, does not amount to a change of venue request). As Matter of Garcia suggests, venue—and the corresponding choice of law determination—is distinct from an administrative control court designation. Although some interplay exists between an Immigration
Court’s administrative control over a case and that case’s venue for choice of law purposes, the agency’s administrative control designation over a record of proceedings does not replace nor circumvent the regulatory requirements for a change of venue. See Matter of L-M-P-, 27 I&N Dec. 265, 267 (BIA 2018) (affirming that neither the Immigration Judge nor the Board has the “authority to disregard the regulations, which have the force and effect of law”).

Even if the agency’s administrative control designation over a record of proceedings changes during the removal proceedings, the agency may not effectuate a venue change unilaterally from the Immigration Court where jurisdiction vested to a newly designated Immigration Court. Cf. 8 C.F.R. § 1003.10(b) (2020) (providing that Immigration Judges may only exercise the powers and duties delegated to them by the Immigration and Nationality Act and by the Attorney General through regulation).

Since choice of law is dependent upon venue in Immigration Court proceedings, the controlling circuit law is not affected by a change in the administrative control court and will only change upon the granting of a motion to change venue. See Matter of Garcia, 28 I&N Dec. at 703.