Written by Emma Winger and Raul Pinto of the American Immigration Council

The Board of Immigration Appeals (BIA) published a decision last week seeking to address a seemingly basic question: what law should an immigration judge apply when deciding the case of a noncitizen facing removal? In a time of remote hearings, when the immigration judge, the government attorney, and the noncitizen may all be in different places, figuring out which law applies is complicated.

Despite the BIA’s efforts to provide clear guidance, the answer remains anything but straightforward.

Federal courts of appeal—which are organized into 12 geographic circuits—have the power to review decisions made by immigration judges and the BIA. Each circuit may adopt different interpretations of the same immigration statute. Only U.S. Supreme Court decisions apply to all the geographic regions. Figuring out which federal circuit law applies matters – for some people, it can mean the difference between winning or losing their case.

Immigration judges and the BIA must apply the law of the federal court of appeals for the circuit where the immigration court is located. But figuring out where a court is located became muddled as the use of remote hearings became common practice in immigration courts, particularly during the COVID-19 pandemic. As a result, the non-citizen could be located in one circuit, the immigration court in a second circuit, and the immigration judge in an entirely different circuit, working remotely.

In Matter of Garcia, the BIA considered the case of a noncitizen whose immigration case began in the Philadelphia, Pennsylvania Immigration Court and was transferred to the York, Pennsylvania Immigration Court. Mr. Garcia submitted all his evidence at these Pennsylvania courts—in the Third Circuit Court of Appeals—but his final hearing was heard by an immigration judge who appeared by video teleconference from the Falls Church, Virginia Immigration Adjudication Center in the Fourth Circuit. Which begs the question—if the immigration judge is one place and the noncitizen is in another place, where is the immigration court located?

The BIA concluded that the immigration court was in Pennsylvania—at the Philadelphia and later York Immigration Courts—and not in Virginia, where the immigration judge sat. And so the federal circuit law for Pennsylvania applied to Mr. Garcia’s case.

According to the BIA, the answer comes from regulations about immigration court venue. Generally, the immigration court is located where the immigration charging document (called a “notice to appear”) is filed or where the case is transferred. This would be true even if the immigration judge or the noncitizen or the government attorney is physically located somewhere else.

But there will be common exceptions that complicate matters. The immigration court system has “administrative control” courts which play different roles supporting other immigration courts. Sometimes the administrative control courts just manage the paperwork for a different court. A charging document might be filed in an administrative control court but identify a different court as the location of the hearing. When administrative control courts are involved, the BIA says the immigration judge should decide which law should apply.

Another complication is that the federal courts of appeal have different opinions about where immigration appeals should be filed. This new BIA decision fails to provide clear guidance about what happens if the immigration judge and the BIA apply the law of one federal appeals court, but a different federal appeals court considers the case on appeal.

If this all sounds confusing, that’s because it is.

In addition to the confusion created by these exceptions, the decision leaves in place a certain level of discretion to the government about the choice of law that is not afforded to people facing removal. The government chooses where to file the charging document and where individuals should be detained, which can subject immigrants to stricter interpretations of the law.

The Garcia decision says that it provides “transparency and predictability” as to what law should apply. But it still leaves significant decision making in the hands of the government lawyers. It only becomes clear if the process by which the government’s lawyers choose where noncitizens will end up in immigration court is made public. This could help ensure that the government isn’t stacking the deck against immigrants by filing their cases in courts where they know immigrants can’t win.