[Federal Register: March 28, 2007 (Volume 72, Number 59)]
[Proposed Rules]
[Page 14494-14497]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28mr07-25]
========================================================================
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.
========================================================================
[[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.
-----------------------------------------------------------------------
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 http://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 http://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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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 http://www.usdoj.gov/eoir/vll/pairedcourts.htm#NOTE
.
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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]
BILLING CODE 4410-30-P