Guidance on Change of Venue in Immigration Proceedings

 

Introduction

On January 17, 2018, Chief Immigration Judge MaryBeth Keller published “Operating Policies and Procedures Memorandum 18-01: Change of Venue” (“OPPM 18-01”) [PDF version]. As the name suggests, OPPM 18-01 provides guidance to immigration judges on adjudicating requests for a change in venue. OPPM 18-01 OPPM 18-01 replaces a 2001 OPPM (OPPM 01-02) on the same subject.

In this article, we will examine the guidance on change of venue found in OPPM 18-01.

Please note that we will not cover section IV of the OPPM, which has to do with immigration judge requirements for oral and written motions for change of venue. Those who are interested may find this section on page 3-4 of the OPPM.

Motion for a change of venue

Overview of Change of Venue

OPPM 18-01 explains that the “[v]enue for Immigration Court proceedings lies with the Immigration Court where the charging document is filed by the Department of Homeland Security (DHS).” The regulations for venue are found in 8 C.F.R. 1003.14(a) and 8 C.F.R. 1003.20(a).

Under 8 C.F.R. 1003.20(b), an immigration judge has the authority to change the venue in immigration proceedings if “good cause” is shown. Under the same regulation, one of the parties must file a motion for a change of venue and the other party must be given the opportunity to respond. Immigration judges may not sua sponte (on their own accord) change venue.

Yet, the OPPM 18-01 continues by explaining that, “[i]n limited circumstances, a case can be moved between detained and non-detained courts without the necessity of a motion for a [change of venue].” However, the authorization for such “clerical transfers” is limited to situations when it is allowed under the administrative control list for paired courts. The following is the administrative control list for paired courts as of January 17, 2018 [PDF version].

OPPM 18-01 emphasizes that changes of venue “create problems in caseload and operational inefficiencies” in immigration courts. For this reason, the OPPM explains that “more than two motions to change venue by the same party are disfavored.” Furthermore, immigration judges are advised to not condone changes of venue filed solely to delay proceedings. Finally, motions to change venue after proceedings have already commenced are “strongly disfavored.”

Ensuring that Good Cause is Shown

The OPPM makes clear that immigration judges should ensure that the moving party for a change of venue shows “good cause” before granting a motion. In addition to the fact that this requirement exists, the OPPM adds that it is important to follow this guidance in order to ease the burden that changes of venue place on the immigration court system.

Case Doctrine Requirement

OPPM 18-01 emphasizes the importance of the law of case doctrine in cases when a change of venue is granted. Specifically, it states that the receiving immigration judge in a change of venue case “is not free to hear the case de novo [(from the beginning)] and ignore court orders prior to the venue change, unless exceptional circumstances, described in this OPPM, permit departure from this policy.” The OPPM notes that this case doctrine requirement is not found in statute but “is a well-established legal doctrine with a long-standing foundation in federal courts.” It summarized the rule as thus:

“In essence, this rule requires that once a court finally decides any issue of law, the ruling should not be altered by the receiving court.”

Furthermore, the OPPM noted that the Supreme Court of the United States held in Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 816 (1988) [PDF version], that the law of case doctrine applies with “greater force to transfer decisions than it does to decisions of substantive law.”

However, OPPM 18-01 makes clear that “Immigration Judges are not expected to follow this rule blindly…” In 1958, the United States Court of Appeals for the Third Circuit held in United States v. Wheeler, 256 F.2d 745, 747 (3d Cir.) [PDF version], cert. denied, 383 U.S. 873 (1958), that there are exceptional circumstances in which a receiving district court judge would be permitted to overrule an earlier decision made by another judge in the same case.

Accordingly, the OPPM explains that a receiving immigration judge may deviate from the law of case doctrine if there:

  1. is a supervening rule of law;
  2. are compelling and unusual circumstances;
  3. is new evidence available to the second judge; and
  4. is such clear error in the previous decision that its result would be manifestly unjust.

However, there is one area in which there is no exception from the law of case doctrine. The OPPM makes clear that “[t]he law of case doctrine includes the recognition of another Immigration Judge's [change of venue] order.” For this reason, a receiving immigration judge cannot return a case to the sending court on the basis of concluding that the change of venue was improper.

Interestingly, OPPM 18-01 notes that the law of case doctrine requirement was maintained from the replaced OPPM 01-02. Accordingly, the applicability of the law of case doctrine to immigration proceedings does not represent a change in policy.

Forward Address for Non-Detained Cases Required

The OPPM makes clear that a motion for change of venue “should not be granted without identification of a fixed street address … where the movant can be reached for further hearing notification.” This requirement is to ensure that when a respondent files a motion for a change of venue, the immigration court will be able to subsequently reach him or her with notifications about further hearings. Furthermore, the OPPM explains that this “also allows the sending court to determine the correct receiving court to which the case should be transferred” if the motion for change of venue is granted.

Issues Prior to Granting Change of Venue

The OPPM states that an immigration judge “should make every effort, consistent with procedural due process requirements, to complete as much of the case as possible…” before granting a change of venue. As we noted in a previous section, the receiving immigration judge will normally be bound to follow court orders issued prior to the change of venue. The OPPM states that the sending immigration judge should endeavor to do the following before granting a change of venue in the time allowed:

  • Obtain pleadings;
  • Resolve the issue of deportability, removability, or inadmissibility;
  • Determine the form(s) of relief that will be sought;
  • Set a date certain by which relief application(s), if any, must be filed with the court; and
  • State on the record that failure to comply with the filing deadline will constitute abandonment of the relief application(s) and may result in the [j]udge rendering a decision on the record as constituted.

The OPPM also states that, if the sending immigration judge has not yet scheduled the case for an individual merits hearing, he or she “should also determine, when granting a change of venue, whether the case should be scheduled for a master calendar hearing or an individual merits hearing at the new court.” However, if the case was already scheduled for an individual merits hearing prior to the granting of the change of the venue, “the case should be scheduled for an individual merits hearing at the new venue without an intervening master calendar hearing…”

In situations where the immigration judge anticipates that the case will proceed immediately to an individual merits hearing at a new venue, the immigration judge granting the change of venue “must advise the respondent that any arrangements to retain existing counsel or obtain new counsel should be made sufficiently in advance of the hearing in the new venue to enable the hearing to proceed as scheduled.” The receiving immigration judge, when adjudicating a motion for a continuance, should consider “the respondent's efforts to resolve any representation issues before the subsequent hearing and the amount of time the respondent has had to do so.”

The OPPM states that “[f]or cases to be scheduled on a master calendar after a change of venue has been granted, the master calendar hearing at the new court 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 of the change of venue was granted.” This directive helps ensure that change of venue cases proceed expeditiously after they are received by a new immigration court.

In a final note in this section, the OPPM explains that a defensive asylum application (Form I-589) submitted to support a change of venue request “is not considered filed.” Rather, the applicant would have to file the Form I-589 separately with the receiving court after the change of venue is granted and in accord with OPPM 16-01 [PDF version].

Venue in Detained Cases

OPPM 18-01 explains that “DHS sometimes relocates detained aliens after charging documents have been filed.” However, immigration courts do not automatically order a change of venue when a detained alien is relocated to a location outside of the administrative control of the court where the case is pending. If the DHS produces an alien at a court other than the one that has jurisdiction without an order for change of venue, the original immigration court having such jurisdiction retains jurisdiction. In this case, the new immigration court would only have jurisdiction over bound redetermination requests. The OPPM notes that a detained alien who is relocated is not precluded from filing his or her own change of venue request.

Note on the Asylum

The OPPM reminds immigration judges “that [change of venue] orders or clerical transfers in cases involving asylum applications may have asylum clock implications.” It adds that immigration judges should be cognizant of the one-year asylum clock.

Conclusion

An alien in immigration proceedings should always seek the counsel of an experienced immigration attorney. Such an attorney will be able to determine the best path forward in a given case. In certain cases, this may include filing an application for change of venue.