Jurisdiction and Venue in Removal Proceedings, 14494-14497 [E7-5629]
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14494
Proposed Rules
Federal Register
Vol. 72, No. 59
Wednesday, March 28, 2007
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
DEPARTMENT OF JUSTICE
Executive Office for Immigration
Review
8 CFR Part 1003
[EOIR No. 147I; AG Order No. 2876–2007]
RIN 1125–AA52
Jurisdiction and Venue in Removal
Proceedings
Executive Office for
Immigration Review, Justice.
ACTION: Proposed rule.
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AGENCY:
SUMMARY: This proposed rule would
amend the Department of Justice
(Department) regulations addressing
jurisdiction and venue in removal
proceedings. The amendment is
necessary due to the increasing number
of removal hearings being conducted by
telephone and video conference. The
proposed rule establishes that venue
shall lie at the place of the hearing as
identified on the charging document or
initial hearing notice, unless an
immigration judge has granted a change
of venue to a different location. The
hearing location is the same whether or
not the immigration judge or a party to
the proceeding appears at the hearing
location in person or participates in the
hearing by telephone or video
conference. The proposed rule also
establishes that removal proceedings
shall be deemed to be completed at the
location of the final hearing, regardless
of whether all parties are physically
present at that location. The Department
also proposes to amend the regulations
to state expressly that, when the
Department of Homeland Security
(DHS) files a charging document,
jurisdiction vests with the Office of the
Chief Immigration Judge (OCIJ) within
the Executive Office for Immigration
Review (EOIR).
DATES: Written comments must be
submitted on or before April 27, 2007.
ADDRESSES: Please submit written
comments to Kevin Chapman, Acting
General Counsel, Executive Office for
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Immigration Review, 5107 Leesburg
Pike, Suite 2600, Falls Church, Virginia,
22041. To ensure proper handling,
please reference RIN No. 1125–AA52 or
EOIR docket number 147I on your
correspondence. You may view an
electronic version of this proposed rule
at https://www.regulations.gov. You may
also comment via the Internet to the
Executive Office for Immigration
Review (EOIR) at eoir.regs@usdoj.gov or
by using the https://www.regulations.gov
comment form for this regulation. When
submitting comments electronically,
you must include RIN No. 1125–AA52
in the subject box.
FOR FURTHER INFORMATION CONTACT:
Kevin Chapman, Acting General
Counsel, Executive Office for
Immigration Review, 5107 Leesburg
Pike, Suite 2600, Falls Church, Virginia,
22041, telephone (703) 305–0470 (not a
toll-free call).
SUPPLEMENTARY INFORMATION: This
proposed venue rule would revise the
existing regulations to clarify the
particular location in which venue lies
for proceedings before immigration
judges. 8 CFR 1003.20(a) is amended to
state that, in removal proceedings,
venue lies at the hearing location as
identified on the charging document as
defined in 8 CFR 1003.13 or the initial
hearing notice issued pursuant to 8 CFR
1003.18. The designated hearing
location is also known as the location
where a case is ‘‘docketed for a
hearing.’’
The rule currently provides that
venue shall lie at the immigration court
where jurisdiction vests pursuant to 8
CFR 1003.14. As revised, the regulations
would more clearly distinguish between
(1) the jurisdiction of the immigration
judges over proceedings initiated under
section 240 of the Immigration and
Nationality Act (INA), 8 U.S.C. 1229a, or
other provisions of law, and (2) the
proper venue or hearing location for
particular cases.
In particular, the Department
proposes to amend the venue rule to
provide greater clarity and consistency
of interpretation, in light of the
increasing number of removal hearings
conducted by telephone and video
conference, as well as EOIR’s use of
administrative control courts for the
creation and maintenance of records of
proceedings as described in 8 CFR
1003.11. This rule makes clear that the
use of telephone or video conferencing
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or the use of administrative control
courts for maintaining records does not
alter or affect the designated hearing
location where the hearing itself takes
place. In addition, in response to
requests from federal courts, the
Department is amending the rule to
specify that, for purposes of judicial
review of final orders of removal,
pursuant to section 242(b)(2) of the INA,
8 U.S.C. 1252(b)(2), removal
proceedings will be deemed to be
completed at the location of the final
hearing.
Congress has expressly authorized the
immigration judges to conduct merits
hearings in removal proceedings
through telephone or video conference,
although an evidentiary hearing may be
conducted by telephone conference only
if the alien consents, after being advised
of the right to proceed in person or
through video conference. See section
240(b)(2) of the INA; see also 8 CFR
1003.25(c). For more than 10 years,
immigration judges have conducted
hearings by video conference. More than
one-half of the immigration courts in the
United States are equipped with the
technology to conduct video
conferences.
Due to improved technology, and
encouraged by the proven success of
video conferencing, EOIR has
established a Headquarters Immigration
Court (HQIC) based at EOIR
Headquarters in Falls Church, Virginia.
The immigration judges assigned to the
HQIC conduct hearings through video
conference to assist various immigration
courts throughout the United States by
hearing cases on their dockets. The
HQIC provides OCIJ with a flexible tool
for responding to short-term resource
needs that may arise.
Although a useful tool in docket
management, the increased use of
telephone and video conferencing to
conduct hearings complicates questions
regarding where venue properly lies and
where proceedings are completed.
When telephone and video conferencing
are used to conduct hearings, the
parties, representatives, and
immigration judge need not gather in a
single physical location. As a result, the
hearing may involve persons in different
places, and in some cases these multiple
geographic locations may be in different
judicial circuits.
OCIJ’s use of administrative control
courts also increases the number of
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cases that involve more than one
location. Administrative control courts
are used to create and maintain records
of proceedings for immigration courts
within an assigned geographic area,
including established immigration
courts in different cities, as well as
hearing locations in detail cities, in DHS
detention facilities, or in federal, state,
or local correctional facilities. See 8 CFR
1003.11; 1003.13.1 All documents and
correspondence in a particular case are
filed with the administrative control
court (sometimes called the ‘‘base city
court’’), even if the hearings themselves
are held at a different location within
the assigned geographic area.
For instance, Dallas, Texas (in the
Fifth Circuit), is currently the
administrative control court for
immigration cases being heard at the
immigration court in Oklahoma City,
Oklahoma (in the Tenth Circuit), and
Arlington, Virginia (in the Fourth
Circuit) is currently the administrative
control court for immigration cases
being heard at the detail location in
Cleveland, Ohio (in the Sixth Circuit).
When a hearing is held at a detention
facility, documents related to the case
may be filed with the immigration court
having administrative control over that
hearing location and not at the
detention facility. Thus, one removal
proceeding may involve more than one
geographic location, with documents
being filed in one place even though the
hearings themselves are held at another
place, often in a city or detention
facility in a different state and
sometimes in a different judicial circuit.
Due to the increased number of cases
that involve more than one geographic
location—both because of the use of
telephone or video conferencing and
because of the use of administrative
control courts—the Department has
concluded that it is essential to clarify
the existing regulations relating to
venue to provide more specific
guidance. Under this rule, the
designated hearing location remains
unaffected even if an immigration judge
from a different location is conducting
the hearing by video conference, or if
the records in the case are filed with,
and maintained by, an administrative
control court in a different city. An
immigration judge from a different city
who is conducting a hearing by
telephone or video conference is
deemed to be conducting the hearing at
the designated hearing location, just as
if the immigration judge had been
1 A list of administrative control courts with their
assigned geographic areas is available to the public
at any immigration court. See 8 CFR 1003.11.
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assigned to conduct the hearing at that
location in person.
This proposed rule is consistent with
longstanding EOIR practice with respect
to the use of administrative control
courts, and is also consistent with
previous guidance provided by OCIJ
regarding hearings conducted by
telephone or video conference. See
Memorandum from Chief Immigration
Judge Michael Creppy, Interim
Operating Policies and Procedures
Memorandum No. 04–06: Hearings
Conducted through Telephone and
Video Conference at 2 (Aug. 18, 2004)
(‘‘The immigration judge’s participation
in the hearing through video conference
d[oes] not change the hearing location.’’)
(available on the EOIR Web site).
The following example illustrates the
increased complexity of venue
determinations and the operation of the
new venue rule in a case involving
multiple geographic locations. With
respect to an alien being detained at the
Nebraska Department of Corrections,
DHS would institute removal
proceedings against the alien by filing
an NTA with the immigration court in
Chicago, Illinois (the administrative
control court or ‘‘base city court’’). The
NTA or a subsequent hearing notice
would identify the Nebraska
Department of Corrections in Lincoln,
Nebraska, as the hearing location. OCIJ
may then decide to assign an
immigration judge at the HQIC or in
some other city to hear cases that are on
the docket at that correctional facility,
conducting the hearing by video
conference rather than traveling to
Nebraska to hear the case in person.
In the above scenario, under this rule,
venue would lie in Lincoln, Nebraska,
the designated hearing location, i.e., the
place where the case was docketed to be
heard, not in Chicago, Illinois, or in
Falls Church, Virginia. The hearing
location and thus venue would remain
unchanged, even if other events
occurred. For instance, Lincoln would
remain the hearing location, even if an
immigration judge in Chicago (or
Denver, Colorado) is substituted to
conduct the hearing by video conference
instead of an immigration judge at the
HQIC in Falls Church. Similarly, the
hearing location and thus venue would
remain unchanged even if one of the
parties or representatives participated in
the hearing by telephone or video
conference (for example, the alien’s
attorney who is located in Cleveland,
Ohio). Unless the immigration judge
grants a party’s motion for a change of
venue, the hearing location would
remain constant, in this case at Lincoln.
The regulations authorize an
immigration judge to change venue only
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14495
when one of the parties moves for a
change of venue and the opposing party
is given notice and the opportunity to
respond. See 8 CFR 1003.20(b); see also
Jian v. INS, 28 F.3d 256 (2nd Cir. 1994).
The immigration judge may not sua
sponte transfer venue.2 Furthermore, in
the case of a detained alien, venue does
not automatically change when the DHS
moves the alien to another detention
facility. See Jian v. INS, supra. To secure
a change of venue, DHS must make a
motion before the immigration judge in
the location where venue already lies. A
notice of hearing is issued for all
hearings, so if an immigration judge
grants a motion for a change of venue,
a new hearing notice will be issued that
reflects the new hearing location.
The Department’s proposed
amendments to 8 CFR 1003.20(a) also
respond to recent decisions issued by
two United States Circuit Courts of
Appeals. See Georcely v. Ashcroft, 375
F.3d 45 (1st Cir. 2004); Ramos v.
Ashcroft, 371 F.3d 948 (7th Cir. 2004)
(Ramos I). Each of these cases involved
more than one geographic location,
either because of the use of an
administrative control court or the use
of video conferencing.3 These courts
had to determine which court of appeals
had authority for judicial review of the
order of removal under section 242(b)(2)
of the INA, which states that a petition
for review shall be filed with the court
of appeals for the judicial circuit in
which the immigration judge
‘‘completed the proceedings.’’ Both
courts noted that the proceedings could
be deemed to have been completed in a
variety of places, including the place
where the immigration judge was
physically located, where the alien was
physically located, where the final order
was issued, or where the final order was
2 The only exception involves a ‘‘clerical
transfer,’’ which occurs when two courts have
administrative control over the same area.
Typically, this sharing occurs when two courts—
one a detention setting and the other a non-detained
setting—are located in the same geographic area. A
case may be transferred between the paired courts
with an administrative notation. For example, if a
detained alien who has a hearing scheduled at the
DHS detention facility in Lancaster, California, is
released from custody, the alien’s case may be
clerically transferred from the Lancaster
Immigration Court to the Los Angeles Immigration
Court. The public list of administrative control
courts contains information about which courts are
subject to clerical transfers. See https://
www.usdoj.gov/eoir/vll/pairedcourts.htm#NOTE.
3 In Georcely, the hearing was held in St. Thomas,
U.S. Virgin Islands, within the jurisdiction of the
Third Circuit, but the record of proceedings was
maintained by the administrative control court in
Puerto Rico, which is within the jurisdiction of the
First Circuit. In Ramos, the hearing was held in
Council Bluffs, Iowa, located within the Eighth
Circuit, but an immigration judge physically located
in Chicago presided over the Iowa hearing via video
conference.
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formally entered. Both courts found that
they could review the cases, but
suggested that the Department provide
guidance for future cases involving
multiple geographic locations. See also
Ramos v. Gonzales, 414 F.3d 800, 803
(7th Cir. 2005) (Ramos II) (noting the
instruction from the Chief Immigration
Judge that venue is not determined by
the physical location of an immigration
judge who is conducting the hearing by
teleconference, but adhering to the
court’s contrary conclusion in Ramos I
as the law of the case).
In accord with the rule that venue lies
at the location where the hearing is
scheduled to occur, as identified in the
NTA or a subsequent hearing notice (or
as the immigration judge may change
venue pursuant to a motion filed for that
purpose), the Department is further
amending the rule to state that a case is
deemed to be completed at the final
hearing location. The final hearing
location can readily be identified as the
place of the hearing identified on the
notice for the final hearing. The ‘‘final
hearing’’ is the last hearing for which a
notice was issued. As previously stated,
a hearing notice is issued for each
hearing and identifies the hearing
location. The hearing location remains
unchanged throughout a proceeding,
unless an immigration judge grants a
change of venue. If venue has been
changed, all hearing notices issued after
the change of venue will correctly list
the new hearing location. As a result,
the hearing notice related to the final
hearing in a case will identify the
location where the hearing is
completed. Even if an immigration
judge reserves a decision rather than
issuing a decision during the final
hearing, the hearing will be deemed
completed at the hearing location listed
on the last hearing notice issued in the
case.
The previous hypothetical involving
the hearing location at the Nebraska
Department of Corrections in Lincoln,
Nebraska, illustrates the operation of the
rule to determine the place where the
immigration judge completed the
proceedings for purposes of judicial
review. The administrative control court
where documents are filed is in
Chicago, within the Seventh Circuit,
and the immigration judge is based at
the HQIC in Virginia, located in the
Fourth Circuit, conducting the Lincoln
hearing through video conferencing. In
this scenario, venue would lie at the
final hearing location, Lincoln,
Nebraska. In turn, the immigration judge
would be deemed to have completed the
proceedings at the final hearing location
in Lincoln, within the jurisdiction of the
Eighth Circuit. The immigration judge,
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although physically located in Virginia,
is deemed to be appearing and
conducting the proceedings in Nebraska
via video conference, as if assigned to
conduct the hearing in person at the
Nebraska location. Thus, for purposes of
section 242(b)(2) of the INA, a petition
for review should be filed in the Eighth
Circuit, and not in the Seventh Circuit
or the Fourth Circuit.
Finally, this proposed rule would
amend the jurisdiction rule at 8 CFR
1003.14(a) to state that when DHS files
an NTA and thereby institutes removal
proceedings, jurisdiction over the
proceedings vests with OCIJ within
EOIR. This amendment is necessary to
avoid any possible and unintended
implication that jurisdiction over a case
is limited to a particular immigration
court. This amendment to the
jurisdiction rule complements the
revision to the venue rule, since it is the
venue rule that determines the
particular hearing location.
Regulatory Flexibility Act
The Attorney General, in accordance
with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this
regulation and, by approving it, certifies
that this rule will not have a significant
economic impact on a substantial
number of small entities. This rule
affects individual aliens and does not
affect small entities, as that term is
defined in 5 U.S.C. 601(6).
Unfunded Mandates Reform Act of
1995
This rule will not result in the
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector of $100 million or more
in any one year and also will not
significantly or uniquely affect small
governments. Therefore, no actions were
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995.
Small Business Regulatory Enforcement
Fairness Act of 1996
This rule is not a major rule as
defined by section 251 of the Small
Business Regulatory Enforcement
Fairness Act of 1996, 5 U.S.C. 804. This
rule will not result in an annual effect
on the economy of $100 million or
more; a major increase in costs or prices;
or significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
companies to compete with foreignbased companies in domestic and
export markets.
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Executive Order 12866
The Attorney General has determined
that this rule is a ‘‘significant regulatory
action’’ under Executive Order 12866,
section 3(f), Regulatory Planning and
Review, and, accordingly, this rule has
been submitted to the Office of
Management and Budget for review.
This rule merely clarifies and restates
preexisting principles relating to the
venue of immigration proceedings and
does not alter existing legal principles
or impose new obligations on aliens,
their representatives, or the Department
of Homeland Security (which represents
the government in removal
proceedings).
Executive Order 13132
This rule will not have substantial
direct effects on the States, on the
relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, it is determined that this
rule does not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement.
Executive Order 12988 Civil Justice
Reform
This rule meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
The provisions of the Paperwork
Reduction Act of 1995, Public Law 104–
13, 44 U.S.C. chapter 35, and its
implementing regulations, 5 CFR part
1320, do not apply to this rule because
there are no new or revised record
keeping or reporting requirements.
List of Subjects in 8 CFR Part 1003
Administrative practice and
procedure, Aliens, Immigration, Legal
Services, Organization and Function
(Government Agencies).
Accordingly, chapter V of title 8 of the
Code of Federal Regulations is proposed
to be amended as follows:
PART 1003—EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW
1. The authority citation for part 1003
is revised to read as follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8
U.S.C. 1101, 1103, 1154, 1155, 1158, 1182,
1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28
U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No.
2 of 1950; 3 CFR, 1949–1953 Comp., p. 1002;
section 203 of Pub. L. 105–100, 111 Stat.
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2196–200; sections 1506 and 1510 of Pub. L.
106–386, 114 Stat. 1527–29, 1531–32; section
1505 of Pub. L. 106–554, 114 Stat. 2763A–
326 to –328.
2. Section 1003.14 is amended by
revising the first sentence of paragraph
(a) to read as follows:
§ 1003.14 Jurisdiction and commencement
of proceedings.
(a) When DHS files a charging
document with an immigration court,
proceedings commence and jurisdiction
vests with the Office of the Chief
Immigration Judge within the Executive
Office for Immigration Review. * * *
*
*
*
*
*
3. The section heading and paragraph
(a) of section 1003.20 are revised to read
as follows:
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§ 1003.20
Venue; change of venue.
(a) Venue lies at the designated place
for the hearing as identified by the
Department of Homeland Security on
the charging document. If the charging
document does not identify the place of
the hearing, venue shall lie at the place
of the hearing identified on the initial
hearing notice, issued by the
immigration court in accordance with
§ 1003.18(b).
(1) Venue remains at the designated
hearing location unless an immigration
judge has granted a motion for change
of venue as provided in this section,
except that the Office of the Chief
Immigration Judge may provide for
administrative transfers of proceedings
from one hearing location to another
hearing location in the same vicinity,
with proper notice to the parties, if such
a transfer is appropriate because the
alien is released from custody, is taken
into custody, or, upon release from a
federal or state correctional facility, is
transferred into DHS custody.
(2) Venue lies at the designated
hearing location, even if the
immigration judge or any party or
representative is not physically present
at the hearing location and participates
in the hearing through telephone or
video conference. In that circumstance,
the immigration judge shall clearly
identify on the record the hearing
location and the location of the
immigration judge and the parties or
representatives, if different.
(3) The use and location of an
administrative control court for the
filing of documents and the creation and
maintenance of records of proceedings,
as described in § 1003.11, does not
affect the venue of the case or the
hearing location as provided in this
section, nor does the venue of the case
or the hearing location affect the use or
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location of the administrative control
court.
(4) For purposes of judicial review of
a final order of removal, as provided in
section 242(b)(2) of the Act, the
immigration judge is deemed to
complete the proceedings at the final
hearing location, without regard to
whether the immigration judge, or any
party, representative, witness or other
person participates in the final hearing
through telephone or video conference.
For purposes of this provision, the final
hearing location refers to the place of
the hearing identified on the notice for
the final hearing.
*
*
*
*
*
Dated: March 22, 2007.
Alberto R. Gonzales,
Attorney General.
[FR Doc. E7–5629 Filed 3–27–07; 8:45 am]
BILLING CODE 4410–30–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2007–27715; Directorate
Identifier 2006–NM–140–AD]
RIN 2120–AA64
Airworthiness Directives; Airbus Model
A330 and A340 Airplanes
Federal Aviation
Administration (FAA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
SUMMARY: The FAA proposes to
supersede an existing airworthiness
directive (AD) that applies to all Airbus
Model A330–200, A330–300, A340–200,
and A340–300 series airplanes; and
Model A340–541 and A340–642
airplanes. The existing AD currently
requires operators to revise the
Airworthiness Limitations section (ALS)
of the Instructions for Continued
Airworthiness (ICA) to incorporate new
information. This information includes,
for all affected airplanes, decreased life
limit values for certain components; and
for Model A330–200 and -300 series
airplanes, new inspections, compliance
times, and new repetitive intervals to
detect fatigue cracking, accidental
damage, or corrosion in certain
structures. This proposed AD would
revise the ALS, for all affected airplanes,
by adding new Airworthiness
Limitations Items (ALIs) to incorporate
service life limits for certain items and
inspections to detect fatigue cracking,
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14497
accidental damage or corrosion in
certain structures, in accordance with
the revised ALS of the ICA. This
proposed AD results from the issuance
of new and more restrictive service life
limits and structural inspections based
on fatigue testing and in-service
findings. We are proposing this AD to
detect and correct fatigue cracking,
accidental damage, or corrosion in
principal structural elements, and to
prevent failure of certain life-limited
parts, which could result in reduced
structural integrity of the airplane.
DATES: We must receive comments on
this proposed AD by April 27, 2007.
ADDRESSES: Use one of the following
addresses to submit comments on this
proposed AD.
• DOT Docket Web site: Go to
https://dms.dot.gov and follow the
instructions for sending your comments
electronically.
• Government-wide rulemaking Web
site: Go to https://www.regulations.gov
and follow the instructions for sending
your comments electronically.
• Mail: Docket Management Facility;
U.S. Department of Transportation, 400
Seventh Street, SW., Nassif Building,
Room PL–401, Washington, DC 20590.
• Fax: (202) 493–2251.
• Hand Delivery: Room PL–401 on
the plaza level of the Nassif Building,
400 Seventh Street, SW., Washington,
DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
Contact Airbus, 1 Rond Point Maurice
Bellonte, 31707 Blagnac Cedex, France,
for service information identified in this
proposed AD.
FOR FURTHER INFORMATION CONTACT: Tim
Backman, Aerospace Engineer
International Branch, ANM–116, FAA,
International Branch, Transport
Airplane Directorate, 1601 Lind
Avenue, SW., Renton, Washington
98055–4056; telephone (425) 227–2797;
fax (425) 227–1149.
SUPPLEMENTARY INFORMATION:
Comments Invited
We invite you to submit any relevant
written data, views, or arguments
regarding this proposed AD. Send your
comments to an address listed in the
ADDRESSES section. Include the docket
number ‘‘Docket No. FAA–2007–27715;
Directorate Identifier 2006–NM–140–
AD’’ at the beginning of your comments.
We specifically invite comments on the
overall regulatory, economic,
environmental, and energy aspects of
the proposed AD. We will consider all
comments received by the closing date
and may amend the proposed AD in
light of those comments.
We will post all comments we
receive, without change, to https://
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Agencies
[Federal Register Volume 72, Number 59 (Wednesday, March 28, 2007)]
[Proposed Rules]
[Pages 14494-14497]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-5629]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 72, No. 59 / Wednesday, March 28, 2007 /
Proposed Rules
[[Page 14494]]
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Part 1003
[EOIR No. 147I; AG Order No. 2876-2007]
RIN 1125-AA52
Jurisdiction and Venue in Removal Proceedings
AGENCY: Executive Office for Immigration Review, Justice.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would amend the Department of Justice
(Department) regulations addressing jurisdiction and venue in removal
proceedings. The amendment is necessary due to the increasing number of
removal hearings being conducted by telephone and video conference. The
proposed rule establishes that venue shall lie at the place of the
hearing as identified on the charging document or initial hearing
notice, unless an immigration judge has granted a change of venue to a
different location. The hearing location is the same whether or not the
immigration judge or a party to the proceeding appears at the hearing
location in person or participates in the hearing by telephone or video
conference. The proposed rule also establishes that removal proceedings
shall be deemed to be completed at the location of the final hearing,
regardless of whether all parties are physically present at that
location. The Department also proposes to amend the regulations to
state expressly that, when the Department of Homeland Security (DHS)
files a charging document, jurisdiction vests with the Office of the
Chief Immigration Judge (OCIJ) within the Executive Office for
Immigration Review (EOIR).
DATES: Written comments must be submitted on or before April 27, 2007.
ADDRESSES: Please submit written comments to Kevin Chapman, Acting
General Counsel, Executive Office for Immigration Review, 5107 Leesburg
Pike, Suite 2600, Falls Church, Virginia, 22041. To ensure proper
handling, please reference RIN No. 1125-AA52 or EOIR docket number 147I
on your correspondence. You may view an electronic version of this
proposed rule at https://www.regulations.gov. You may also comment via
the Internet to the Executive Office for Immigration Review (EOIR) at
eoir.regs@usdoj.gov or by using the https://www.regulations.gov comment
form for this regulation. When submitting comments electronically, you
must include RIN No. 1125-AA52 in the subject box.
FOR FURTHER INFORMATION CONTACT: Kevin Chapman, Acting General Counsel,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
2600, Falls Church, Virginia, 22041, telephone (703) 305-0470 (not a
toll-free call).
SUPPLEMENTARY INFORMATION: This proposed venue rule would revise the
existing regulations to clarify the particular location in which venue
lies for proceedings before immigration judges. 8 CFR 1003.20(a) is
amended to state that, in removal proceedings, venue lies at the
hearing location as identified on the charging document as defined in 8
CFR 1003.13 or the initial hearing notice issued pursuant to 8 CFR
1003.18. The designated hearing location is also known as the location
where a case is ``docketed for a hearing.''
The rule currently provides that venue shall lie at the immigration
court where jurisdiction vests pursuant to 8 CFR 1003.14. As revised,
the regulations would more clearly distinguish between (1) the
jurisdiction of the immigration judges over proceedings initiated under
section 240 of the Immigration and Nationality Act (INA), 8 U.S.C.
1229a, or other provisions of law, and (2) the proper venue or hearing
location for particular cases.
In particular, the Department proposes to amend the venue rule to
provide greater clarity and consistency of interpretation, in light of
the increasing number of removal hearings conducted by telephone and
video conference, as well as EOIR's use of administrative control
courts for the creation and maintenance of records of proceedings as
described in 8 CFR 1003.11. This rule makes clear that the use of
telephone or video conferencing or the use of administrative control
courts for maintaining records does not alter or affect the designated
hearing location where the hearing itself takes place. In addition, in
response to requests from federal courts, the Department is amending
the rule to specify that, for purposes of judicial review of final
orders of removal, pursuant to section 242(b)(2) of the INA, 8 U.S.C.
1252(b)(2), removal proceedings will be deemed to be completed at the
location of the final hearing.
Congress has expressly authorized the immigration judges to conduct
merits hearings in removal proceedings through telephone or video
conference, although an evidentiary hearing may be conducted by
telephone conference only if the alien consents, after being advised of
the right to proceed in person or through video conference. See section
240(b)(2) of the INA; see also 8 CFR 1003.25(c). For more than 10
years, immigration judges have conducted hearings by video conference.
More than one-half of the immigration courts in the United States are
equipped with the technology to conduct video conferences.
Due to improved technology, and encouraged by the proven success of
video conferencing, EOIR has established a Headquarters Immigration
Court (HQIC) based at EOIR Headquarters in Falls Church, Virginia. The
immigration judges assigned to the HQIC conduct hearings through video
conference to assist various immigration courts throughout the United
States by hearing cases on their dockets. The HQIC provides OCIJ with a
flexible tool for responding to short-term resource needs that may
arise.
Although a useful tool in docket management, the increased use of
telephone and video conferencing to conduct hearings complicates
questions regarding where venue properly lies and where proceedings are
completed. When telephone and video conferencing are used to conduct
hearings, the parties, representatives, and immigration judge need not
gather in a single physical location. As a result, the hearing may
involve persons in different places, and in some cases these multiple
geographic locations may be in different judicial circuits.
OCIJ's use of administrative control courts also increases the
number of
[[Page 14495]]
cases that involve more than one location. Administrative control
courts are used to create and maintain records of proceedings for
immigration courts within an assigned geographic area, including
established immigration courts in different cities, as well as hearing
locations in detail cities, in DHS detention facilities, or in federal,
state, or local correctional facilities. See 8 CFR 1003.11; 1003.13.\1\
All documents and correspondence in a particular case are filed with
the administrative control court (sometimes called the ``base city
court''), even if the hearings themselves are held at a different
location within the assigned geographic area.
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\1\ A list of administrative control courts with their assigned
geographic areas is available to the public at any immigration
court. See 8 CFR 1003.11.
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For instance, Dallas, Texas (in the Fifth Circuit), is currently
the administrative control court for immigration cases being heard at
the immigration court in Oklahoma City, Oklahoma (in the Tenth
Circuit), and Arlington, Virginia (in the Fourth Circuit) is currently
the administrative control court for immigration cases being heard at
the detail location in Cleveland, Ohio (in the Sixth Circuit). When a
hearing is held at a detention facility, documents related to the case
may be filed with the immigration court having administrative control
over that hearing location and not at the detention facility. Thus, one
removal proceeding may involve more than one geographic location, with
documents being filed in one place even though the hearings themselves
are held at another place, often in a city or detention facility in a
different state and sometimes in a different judicial circuit.
Due to the increased number of cases that involve more than one
geographic location--both because of the use of telephone or video
conferencing and because of the use of administrative control courts--
the Department has concluded that it is essential to clarify the
existing regulations relating to venue to provide more specific
guidance. Under this rule, the designated hearing location remains
unaffected even if an immigration judge from a different location is
conducting the hearing by video conference, or if the records in the
case are filed with, and maintained by, an administrative control court
in a different city. An immigration judge from a different city who is
conducting a hearing by telephone or video conference is deemed to be
conducting the hearing at the designated hearing location, just as if
the immigration judge had been assigned to conduct the hearing at that
location in person.
This proposed rule is consistent with longstanding EOIR practice
with respect to the use of administrative control courts, and is also
consistent with previous guidance provided by OCIJ regarding hearings
conducted by telephone or video conference. See Memorandum from Chief
Immigration Judge Michael Creppy, Interim Operating Policies and
Procedures Memorandum No. 04-06: Hearings Conducted through Telephone
and Video Conference at 2 (Aug. 18, 2004) (``The immigration judge's
participation in the hearing through video conference d[oes] not change
the hearing location.'') (available on the EOIR Web site).
The following example illustrates the increased complexity of venue
determinations and the operation of the new venue rule in a case
involving multiple geographic locations. With respect to an alien being
detained at the Nebraska Department of Corrections, DHS would institute
removal proceedings against the alien by filing an NTA with the
immigration court in Chicago, Illinois (the administrative control
court or ``base city court''). The NTA or a subsequent hearing notice
would identify the Nebraska Department of Corrections in Lincoln,
Nebraska, as the hearing location. OCIJ may then decide to assign an
immigration judge at the HQIC or in some other city to hear cases that
are on the docket at that correctional facility, conducting the hearing
by video conference rather than traveling to Nebraska to hear the case
in person.
In the above scenario, under this rule, venue would lie in Lincoln,
Nebraska, the designated hearing location, i.e., the place where the
case was docketed to be heard, not in Chicago, Illinois, or in Falls
Church, Virginia. The hearing location and thus venue would remain
unchanged, even if other events occurred. For instance, Lincoln would
remain the hearing location, even if an immigration judge in Chicago
(or Denver, Colorado) is substituted to conduct the hearing by video
conference instead of an immigration judge at the HQIC in Falls Church.
Similarly, the hearing location and thus venue would remain unchanged
even if one of the parties or representatives participated in the
hearing by telephone or video conference (for example, the alien's
attorney who is located in Cleveland, Ohio). Unless the immigration
judge grants a party's motion for a change of venue, the hearing
location would remain constant, in this case at Lincoln.
The regulations authorize an immigration judge to change venue only
when one of the parties moves for a change of venue and the opposing
party is given notice and the opportunity to respond. See 8 CFR
1003.20(b); see also Jian v. INS, 28 F.3d 256 (2nd Cir. 1994). The
immigration judge may not sua sponte transfer venue.\2\ Furthermore, in
the case of a detained alien, venue does not automatically change when
the DHS moves the alien to another detention facility. See Jian v. INS,
supra. To secure a change of venue, DHS must make a motion before the
immigration judge in the location where venue already lies. A notice of
hearing is issued for all hearings, so if an immigration judge grants a
motion for a change of venue, a new hearing notice will be issued that
reflects the new hearing location.
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\2\ The only exception involves a ``clerical transfer,'' which
occurs when two courts have administrative control over the same
area. Typically, this sharing occurs when two courts--one a
detention setting and the other a non-detained setting--are located
in the same geographic area. A case may be transferred between the
paired courts with an administrative notation. For example, if a
detained alien who has a hearing scheduled at the DHS detention
facility in Lancaster, California, is released from custody, the
alien's case may be clerically transferred from the Lancaster
Immigration Court to the Los Angeles Immigration Court. The public
list of administrative control courts contains information about
which courts are subject to clerical transfers. See https://
www.usdoj.gov/eoir/vll/pairedcourts.htm#NOTE.
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The Department's proposed amendments to 8 CFR 1003.20(a) also
respond to recent decisions issued by two United States Circuit Courts
of Appeals. See Georcely v. Ashcroft, 375 F.3d 45 (1st Cir. 2004);
Ramos v. Ashcroft, 371 F.3d 948 (7th Cir. 2004) (Ramos I). Each of
these cases involved more than one geographic location, either because
of the use of an administrative control court or the use of video
conferencing.\3\ These courts had to determine which court of appeals
had authority for judicial review of the order of removal under section
242(b)(2) of the INA, which states that a petition for review shall be
filed with the court of appeals for the judicial circuit in which the
immigration judge ``completed the proceedings.'' Both courts noted that
the proceedings could be deemed to have been completed in a variety of
places, including the place where the immigration judge was physically
located, where the alien was physically located, where the final order
was issued, or where the final order was
[[Page 14496]]
formally entered. Both courts found that they could review the cases,
but suggested that the Department provide guidance for future cases
involving multiple geographic locations. See also Ramos v. Gonzales,
414 F.3d 800, 803 (7th Cir. 2005) (Ramos II) (noting the instruction
from the Chief Immigration Judge that venue is not determined by the
physical location of an immigration judge who is conducting the hearing
by teleconference, but adhering to the court's contrary conclusion in
Ramos I as the law of the case).
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\3\ In Georcely, the hearing was held in St. Thomas, U.S. Virgin
Islands, within the jurisdiction of the Third Circuit, but the
record of proceedings was maintained by the administrative control
court in Puerto Rico, which is within the jurisdiction of the First
Circuit. In Ramos, the hearing was held in Council Bluffs, Iowa,
located within the Eighth Circuit, but an immigration judge
physically located in Chicago presided over the Iowa hearing via
video conference.
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In accord with the rule that venue lies at the location where the
hearing is scheduled to occur, as identified in the NTA or a subsequent
hearing notice (or as the immigration judge may change venue pursuant
to a motion filed for that purpose), the Department is further amending
the rule to state that a case is deemed to be completed at the final
hearing location. The final hearing location can readily be identified
as the place of the hearing identified on the notice for the final
hearing. The ``final hearing'' is the last hearing for which a notice
was issued. As previously stated, a hearing notice is issued for each
hearing and identifies the hearing location. The hearing location
remains unchanged throughout a proceeding, unless an immigration judge
grants a change of venue. If venue has been changed, all hearing
notices issued after the change of venue will correctly list the new
hearing location. As a result, the hearing notice related to the final
hearing in a case will identify the location where the hearing is
completed. Even if an immigration judge reserves a decision rather than
issuing a decision during the final hearing, the hearing will be deemed
completed at the hearing location listed on the last hearing notice
issued in the case.
The previous hypothetical involving the hearing location at the
Nebraska Department of Corrections in Lincoln, Nebraska, illustrates
the operation of the rule to determine the place where the immigration
judge completed the proceedings for purposes of judicial review. The
administrative control court where documents are filed is in Chicago,
within the Seventh Circuit, and the immigration judge is based at the
HQIC in Virginia, located in the Fourth Circuit, conducting the Lincoln
hearing through video conferencing. In this scenario, venue would lie
at the final hearing location, Lincoln, Nebraska. In turn, the
immigration judge would be deemed to have completed the proceedings at
the final hearing location in Lincoln, within the jurisdiction of the
Eighth Circuit. The immigration judge, although physically located in
Virginia, is deemed to be appearing and conducting the proceedings in
Nebraska via video conference, as if assigned to conduct the hearing in
person at the Nebraska location. Thus, for purposes of section
242(b)(2) of the INA, a petition for review should be filed in the
Eighth Circuit, and not in the Seventh Circuit or the Fourth Circuit.
Finally, this proposed rule would amend the jurisdiction rule at 8
CFR 1003.14(a) to state that when DHS files an NTA and thereby
institutes removal proceedings, jurisdiction over the proceedings vests
with OCIJ within EOIR. This amendment is necessary to avoid any
possible and unintended implication that jurisdiction over a case is
limited to a particular immigration court. This amendment to the
jurisdiction rule complements the revision to the venue rule, since it
is the venue rule that determines the particular hearing location.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that this rule will not have a significant economic
impact on a substantial number of small entities. This rule affects
individual aliens and does not affect small entities, as that term is
defined in 5 U.S.C. 601(6).
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector of $100
million or more in any one year and also will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
804. This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
Executive Order 12866
The Attorney General has determined that this rule is a
``significant regulatory action'' under Executive Order 12866, section
3(f), Regulatory Planning and Review, and, accordingly, this rule has
been submitted to the Office of Management and Budget for review. This
rule merely clarifies and restates preexisting principles relating to
the venue of immigration proceedings and does not alter existing legal
principles or impose new obligations on aliens, their representatives,
or the Department of Homeland Security (which represents the government
in removal proceedings).
Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
The provisions of the Paperwork Reduction Act of 1995, Public Law
104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR
part 1320, do not apply to this rule because there are no new or
revised record keeping or reporting requirements.
List of Subjects in 8 CFR Part 1003
Administrative practice and procedure, Aliens, Immigration, Legal
Services, Organization and Function (Government Agencies).
Accordingly, chapter V of title 8 of the Code of Federal
Regulations is proposed to be amended as follows:
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
1. The authority citation for part 1003 is revised to read as
follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
section 203 of Pub. L. 105-100, 111 Stat.
[[Page 14497]]
2196-200; sections 1506 and 1510 of Pub. L. 106-386, 114 Stat. 1527-
29, 1531-32; section 1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to
-328.
2. Section 1003.14 is amended by revising the first sentence of
paragraph (a) to read as follows:
Sec. 1003.14 Jurisdiction and commencement of proceedings.
(a) When DHS files a charging document with an immigration court,
proceedings commence and jurisdiction vests with the Office of the
Chief Immigration Judge within the Executive Office for Immigration
Review. * * *
* * * * *
3. The section heading and paragraph (a) of section 1003.20 are
revised to read as follows:
Sec. 1003.20 Venue; change of venue.
(a) Venue lies at the designated place for the hearing as
identified by the Department of Homeland Security on the charging
document. If the charging document does not identify the place of the
hearing, venue shall lie at the place of the hearing identified on the
initial hearing notice, issued by the immigration court in accordance
with Sec. 1003.18(b).
(1) Venue remains at the designated hearing location unless an
immigration judge has granted a motion for change of venue as provided
in this section, except that the Office of the Chief Immigration Judge
may provide for administrative transfers of proceedings from one
hearing location to another hearing location in the same vicinity, with
proper notice to the parties, if such a transfer is appropriate because
the alien is released from custody, is taken into custody, or, upon
release from a federal or state correctional facility, is transferred
into DHS custody.
(2) Venue lies at the designated hearing location, even if the
immigration judge or any party or representative is not physically
present at the hearing location and participates in the hearing through
telephone or video conference. In that circumstance, the immigration
judge shall clearly identify on the record the hearing location and the
location of the immigration judge and the parties or representatives,
if different.
(3) The use and location of an administrative control court for the
filing of documents and the creation and maintenance of records of
proceedings, as described in Sec. 1003.11, does not affect the venue
of the case or the hearing location as provided in this section, nor
does the venue of the case or the hearing location affect the use or
location of the administrative control court.
(4) For purposes of judicial review of a final order of removal, as
provided in section 242(b)(2) of the Act, the immigration judge is
deemed to complete the proceedings at the final hearing location,
without regard to whether the immigration judge, or any party,
representative, witness or other person participates in the final
hearing through telephone or video conference. For purposes of this
provision, the final hearing location refers to the place of the
hearing identified on the notice for the final hearing.
* * * * *
Dated: March 22, 2007.
Alberto R. Gonzales,
Attorney General.
[FR Doc. E7-5629 Filed 3-27-07; 8:45 am]
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