M-N-I ( 2024 )

Cite as 28 I&N Dec. 803 (BIA 2024) Interim Decision #4076
Matter of M-N-I-, Respondent
Decided May 24, 2024
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
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. Matter of Garcia, 28 I&N
Dec. 693 (BIA 2023), followed.
FOR THE RESPONDENT: Jennifer C. Bade, Esquire, Brookline, Massachusetts
BEFORE: Board Panel: GREER and GORMAN, Appellate Immigration Judges;
CROSSETT, Temporary Appellate Immigration Judge.
GORMAN, Appellate Immigration Judge:
In a decision dated October 24, 2023, the Immigration Judge denied the
respondent’s application for deferral of removal under the regulations
implementing the Convention Against Torture (“CAT”). 1 The respondent, a
native and citizen of Morocco, has appealed that decision. The Department
of Homeland Security (“DHS”) has not responded to the appeal. Because
we agree with the respondent that additional fact-finding and analysis are
needed and the Immigration Judge misapplied choice of law precedent, we
will remand these proceedings for the entry of a new decision.
I. FACTUAL AND PROCEDURAL HISTORY
The record reflects that the respondent has been detained at the
Moshannon Valley Processing Center (“Moshannon”) in Philipsburg,
Pennsylvania, throughout these proceedings. The proceedings commenced
with the filing of a Notice to Appear (“NTA”) on April 18, 2023, 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
1
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into
force for the United States on Nov. 20, 1994). See 8 C.F.R. §§ 1208.16(c)–1208.18(a)
(2020).
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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.”). Between April 18 and August 9, 2023, 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 at the Richmond, Virginia Immigration Adjudication
Center (“IAC”). Internal agency records reflect that on August 12, 2023, the
Elizabeth, New Jersey Immigration Court, which is located within the
jurisdiction of the United States Court of Appeals for the Third Circuit, was
assigned administrative control over the respondent’s case by an internal
administrative process. However, no corresponding Immigration Judge
order was contemporaneously issued to the parties reflecting this change.
Following the August 16, 2023, master calendar hearing—which was
conducted by a Richmond, Virginia IAC Immigration Judge and at which the
respondent appeared via teleconference—the respondent received a notice of
internet-based hearing that the individual hearing would take place on
October 20, 2023. This notice was issued from the Elizabeth Immigration
Court but listed the address of the Cleveland Immigration Court as the
hearing location. On October 4, 2023, the respondent filed a motion to
change venue, arguing that venue lay with the Cleveland Immigration Court
because neither party had filed a motion to change venue to the Elizabeth
Immigration Court. In a subsequent brief to the Immigration Court, the
respondent applied Sixth Circuit law.
On October 19, 2023, a different Immigration Judge denied the
respondent’s motion for lack of good cause shown, explaining in a form order
that “[t]he Elizabeth Immigration Court now has jurisdiction over detainees
at the Moshannon Valley Processing Center.” After the respondent’s
individual hearing on October 20, 2023, the Immigration Judge applied Third
Circuit law and denied deferral of removal under CAT.
II. ANALYSIS
The respondent argues that the Immigration Judge erroneously applied
Third Circuit law rather than Sixth Circuit law. We review this issue de novo.
See 8 C.F.R. § 1003.1(d)(3)(ii) (2020). For the reasons discussed below, we
agree with the respondent that the Immigration Judge applied the incorrect
circuit’s law.
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
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filing of a charging document, and will only change if an Immigration Judge
subsequently grants a change of venue to another Immigration Court.”
28 I&N Dec. 693, 703 (BIA 2023) (emphasis added); see also 8 C.F.R.
§§ 1003.14(a), 1003.20(a)–(b) (2024). In that case, we focused primarily on
the initial venue determination and instructed Immigration Judges to
determine a case’s initial venue by “identifying the Immigration Court where
jurisdiction vested,” which will “presumptively [be] at the Immigration
Court where the charging document [wa]s filed.” Matter of Garcia, 28 I&N
Dec. at 703, 705. We observed that identifying the Immigration Court where
jurisdiction vested is particularly important when the charging document is
filed with an Immigration Court designated as the administrative control
court because this court may be physically located in a different judicial
circuit from the geographic area to which it is assigned. See id. at 696–97,
704–05 (explaining that “administrative control courts have varying levels
of involvement with their respective geographic assignments and are subject
to change”).
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 n.14 (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).
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).
Although earlier versions of the relevant regulation permitted Immigration
Judges to change venue sua sponte and without prior notice to the parties,
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that is no longer allowed under the current regulation. See Matter of Rahman,
20 I&N Dec. 480, 482 n.3 (BIA 1992). Consequently, 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.
As we explained in Matter of Garcia, tying the choice of law to venue
offers the benefit of predictability. See id. at 697, 702–03 (citing Mellouli v.
Lynch, 575 U.S. 798, 806 (2015)). Because venue may only be altered on
the parties’ initiative for good cause shown—and not by the agency for its
administrative needs—linking choice of law with venue gives the parties
notice of the law to be applied and an opportunity to mount a challenge when
a change affecting the applicable law is proposed. See id. at 702–05 (noting
that the case’s holding “weigh[s] the regulatory description of administrative
control courts and the varied roles they play in Immigration Court
proceedings” with the interests of “consistency and transparency” for the
parties). In contrast, tying the controlling circuit law to factors outside the
parties’ control, such as the Immigration Judge’s physical location at the final
hearing or the Immigration Court with subsequent administrative control
over the record of proceedings, “could negate the jurisdiction of the circuit
law that was controlling in prior hearings and significantly impact the parties’
ability to prepare legal arguments pursuant to the applicable circuit law.” Id.
at 702.
III. APPLICATION TO THE RESPONDENT
In this case, DHS filed the respondent’s NTA at the Cleveland
Immigration Court, which was the designated administrative control court
for Moshannon at the time. The NTA instructed the respondent to appear at
a hearing at the Cleveland Immigration Court. Jurisdiction unambiguously
vested with the Cleveland Immigration Court, and venue consequently lay
there. 8 C.F.R. §§ 1003.14(a), 1003.20(a); see also Matter of Garcia,
28 I&N Dec. at 703–05 & n.17 (recognizing that while jurisdiction
presumptively vests where the charging document is filed, venue does not
necessarily lie at an administrative control court solely because a charging
document is filed there, and in identifying where jurisdiction vested, an
Immigration Judge should consider facts including the location of the
Immigration Court where the charging document orders the respondent to
appear). The Cleveland Immigration Court separately and simultaneously
gained initial administrative control over the respondent’s record of
proceedings. See 8 C.F.R. § 1003.11. Though the agency later transferred
administrative control over the respondent’s proceedings to the Elizabeth
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Immigration Court through an internalized reallocation of responsibility, an
Immigration Court’s administrative control over a case does not dictate
which circuit law is controlling; venue does. See Matter of Garcia, 28 I&N
Dec. at 704 (explaining that “an administrative control court may solely
maintain, and have custodial responsibility for, the record of proceedings, as
opposed to being the court where proceedings are commenced pursuant to
8 C.F.R. § 1003.14(a)”); Matter of R-C-R-, 28 I&N Dec. 74, 74 n.1 (BIA
2020) (providing that the location of the administrative control court does
not supply the circuit law applied to proceedings conducted via video
conference). Because the parties never moved to change venue to the
Elizabeth Immigration Court, as prescribed by regulation, venue continues
to remain with the Cleveland Immigration Court.2
As choice of law is a legal issue that we review de novo, errors in applying
choice of law by Immigration Judges do not automatically necessitate a
remand when the record contains sufficient factual findings and analysis
allowing the Board to engage in meaningful review of the record. See
8 C.F.R. § 1003.1(d)(3)(ii); see also Matter of S-H-, 23 I&N Dec. 462, 465
(BIA 2002) (instructing Immigration Judges to include in their decisions
“clear and complete findings of fact that are supported by the record and
[comply] with controlling law”). In such instances, the Board may elect to
adjudicate the appeal by applying the correct circuit law de novo. However,
since this case requires additional development of the factual record, we will
not reach the substantive merits of this appeal and instead will remand the
record for the entry of a new decision. See Matter of Fedorenko, 19 I&N
Dec. 57, 74 (BIA 1984) (“[T]he Board is an appellate body whose function
is to review, not to create, a record.”), abrogated on other grounds by
Negusie v. Holder, 555 U.S. 511 (2009).
On remand, the Immigration Judge should reevaluate the respondent’s
claim under Sixth Circuit law and apply relevant Board precedent, with
consideration to the respondent’s appellate arguments concerning the
respondent’s gender identity and sexual orientation. See Matter of C-G-T-,
28 I&N Dec. 740, 745 (BIA 2023) (explaining that “when considering future
harm, adjudicators should not expect a respondent to hide” the respondent’s
sexual orientation).
On remand, the parties may update the record and the Immigration Judge
may take any action necessary to prepare a new decision, which must provide
complete factual findings, analyze applicable legal precedents, meaningfully
2
The Immigration Judge’s adverse ruling on the respondent’s motion to “change” venue
does not alter this conclusion. The Immigration Judge’s determination that the Elizabeth
Immigration Court “now has jurisdiction over” the respondent is legal error because
jurisdiction remained with the Cleveland Immigration Court, where jurisdiction initially
vested. See 8 C.F.R. §§ 1003.14(a), 1003.20(a)–(b).
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engage with the country conditions evidence, and clearly set forth legal
conclusions. See Matter of A-P-, 22 I&N Dec. 468, 477 (BIA 1999) (holding
that Immigration Judges’ decisions must contain the reasons underlying their
determinations, “reflect [their] analysis of the applicable statutes,
regulations, and legal precedents, and clearly set forth [their] legal
conclusions”). In remanding, we express no opinion regarding the outcome
of these proceedings. See Matter of L-O-G-, 21 I&N Dec. 413, 422 (BIA
1996).
ORDER: The respondent’s appeal is sustained in part.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.
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