Jurisdiction and Venue in Removal Proceedings, 14494-14497 [E7-5629]

Agencies

• Executive Office for Immigration Review
• Department of Justice

[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]


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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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