The BIA issued a much-awaited decision on choice of law. In other words, when the immigrant is in one circuit, and the Immigration Court is in a different circuit, which court of appeals rulings should EOIR use? The quick answer is the choice of law is wherever venue lies and, the only way to change the choice of law is to change venue. Matter of Garcia, 28 I&N Dec. 693 (BIA 2023). In Ninth Circuit news, the Ninth vacated its decision in De La Rosa-Rodriguez v. Garland, 49F.4th 1282 (9th Cir. 2022) and ordered that the case be reheard en banc. De La Rosa-Rodriguez v. Garland, No. 20-71923 (9th Cir. Mar. 22, 2023). De La Rosa-Rodriguez v. Garland, No. 20-71923 (9th Cir. March 22, 2023).

NINTH CIRCUIT

Let’s quickly dispose of the Ninth Circuit’s decision in De La Rosa-Rodriguez. Antonio De La Rosa-Rodriguez applied for cancellation of removal as a non-permanent resident. If you remember way back to . . . umm, the summer of 2022; the Supreme Court held that the judicial branch doesn’t have jurisdiction to review an adjustment of status case even where EOIR committed a factual error in finding that the person did not qualify for adjustment. The Court held that the jurisdiction-stripping provisions of INA § 242(a)(2)(B) precluded judicial review of an ultimately discretionary determination. Patel v. Garland, 142 S.Ct. 1614 (2022). What made that decision especially egregious is that the Government agreed with the Petitioner that the case should be reviewed, and the Supreme Court ordered one of Justice Thomas’s former law clerks to defend the Eleventh Circuit’s decision. I just can’t.

In De La Rosa-Rodriguez, the Ninth Circuit panel held that while they did not have jurisdiction to review the BIA’s discretionary determinations; the question of whether a family member would suffer exceptional and extremely unusual hardship was a mixed question of law and fact. As a result, they found that they had jurisdiction over that issue. Guerrero-Lasprilla v. Barr, 140 S.Ct. 1062 (2020) (the judiciary stripping provisions of IIRIRA do not include legal questions and mixed questions of law and fact). This week the Ninth Circuit vacated the panel’s decision and is rehearing the case en banc. It probably does not bode well for the future or for judicial review in general in immigration proceedings.

BOARD OF IMMIGRATION APPEALS

The BIA is giving us guidance on which Circuit law applies in our “deconstructed” court system. Spoiler – it’s a question of venue.

Factual and Procedural Background

Jose Antonio Garcia is a citizen and native of El Salvador. He entered the United States in September 2000. On July 17, 2018, he was issued a Notice to Appear and was charged with being inadmissible under INA § 212(a)(6)(A)(i) (present in the United States without being admitted). The Notice to Appear was filed with the Immigration Court in Philadelphia, Pennsylvania, and he was instructed to appear for a hearing before that Court. He physically appeared at two hearings in Philadelphia. Then DHS filed a motion to change venue to the Immigration Court in York, Pennsylvania. They submitted evidence to show that Mr. Garcia was detained at the York County Prison in York, Pennsylvania. Let’s take a pause, here. Why in the world was a person who had been living in the United States for 18 years at the time he was placed in removal proceedings in detention? The decision is silent on this issue.

Anyhow, at the merit hearing, the Immigration Judge appeared via teleconference at the Falls Church Immigration Adjudication Center in Virginia. If you are keeping up, you will notice that Virginia is in the Fourth Circuit while Pennsylvania is in the Third Circuit. So the question is, where the immigrant is in Pennsylvania and the Immigration Court is in Virginia, does Third Circuit law apply or Fourth Circuit?

Legal Analysis

A Detour into Exceptional and Extremely Unusual Hardship

Let’s take a quick detour from the choice of law issue. (I promise you, the choice of law issue will still be there when we get back). Mr. Garcia filed for cancellation of removal arguing that his sixteen-year-old son would suffer exceptional and extremely unusual hardship if Mr. Garcia were removed. There aren’t too many published decisions on the issue of what constitutes “exceptional and extremely unusual hardship.” We know that the adjudicator must consider all of the hardship factors cumulatively. Matter of J-J-G-, 27 I&N Dec. 808 (BIA 2020). And, we know that the person must demonstrate that their qualifying relative would suffer hardship that is “substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family members here.” Matter of Monreal, 23 I&N Dec. 56 (BIA 2001). But that is about it.

Given what we have learned about child psychology over the past twenty-seven years; should that interpretation of hardship still stand? Should the standard be that ‘the hardship suffered by the family members is substantially different from what would normally be expected from the deportation of a person whose family lives in the United States’? (Full disclosure, my daughter is a researcher in a pediatric psychology lab and was formerly a researcher in developmental psychology labs – so the issue of child development is a frequent topic at dinner. We also talk about the Cubs, the Giants, the Sharks (tanking hard for Bedard), the history of Poland, the Italian Reunification, how car engines work, Jane Austen, and who can use which car tomorrow).

Back in the early 1990s, the chief of Kaiser Permanente’s Department of Preventative Medicine in San Diego was studying obesity. He found that many of his morbidly obese patients had been sexually abused as children. What, you may be asking, does any of this have to do with exceptional and extremely unusual hardship? That is a fair question, so bear with me. In 1995 and 1997 this doctor along with an epidemiologist conducted a mega study on how childhood events may affect adult health. What they found was that there was a direct link between childhood trauma and the adult onset of chronic disease and mental illness. They called it Adverse Childhood Experiences (ACEs). Each type of adverse childhood experience (and there were ten total points) counted as one point. People with an ACE score of four or higher are at much higher risk for coronary artery disease, stroke, depression, cancer, diabetes, substance abuse, premature death…. And, one of the ACE factors, is, you guessed it, family separation. (You can take the ACE test here). The irony is that under the current interpretation of “exceptional and extremely unusual hardship” we can expect that all of the children of parents at risk of removal face the risk of chronic health conditions as adults because of the hardship they suffered as children. Under our current law, none of these children would be suffering “exceptional and extremely unusual hardship” even though they are now at higher risk of chronic illness, substance abuse, and premature death as adults because other similarly situated children are at similar risk. I guess because they are all suffering exceptional and extremely unusual hardship compared to the regular population; none of them are suffering exceptional and extremely unusual hardship.

Let’s look at Mr. Garcia’s case. He has a sixteen-year-old son who was hoping to go to college. The IJ found that the son could continue to live with his mother (who has Temporary Protected Status) and that he can continue to work at the restaurant where his mother works to help pay the family’s bills and save for college. The child is sixteen-years-old! Sixteen-year-olds should be studying, learning how to drive cars, playing sports, acting in high school plays, exploring art, working on the high school newspaper, and working on the high school yearbook…. They should not be working in restaurants to help support their families. I know that I often rant about the cruelty of the immigration laws in our country, but it is important that we not become callous and inure ourselves to the cruelty of these laws.

Choice of Law

Rant over. Let’s go back to choice of law. EOIR has to follow the precedent set by the BIA, the Attorney General, and the circuit court of appeals over the geographic region where a case occurs. Matter of Garcia, 28 I&N Dec. at 695. (I was cruelly reminded of choice of law when a client of mine moved to California after being ordered deported in Texas and we had to use Fifth Circuit law to try to get the case reopened. I am generally very spoiled in the Ninth. My case was clear. The client had been living in Texas, appeared before an Immigration Court in Texas, and was ordered deported by an Immigration Court in Texas before they moved to California. Fifth Circuit law applied). To put this problem into perspective there are now sixty-eight courts, three immigration adjudication centers, and administrative control courts that create and maintain the Record of Proceedings for the Immigration Courts in an assigned geographic location. 8 C.F.R. § 1003.11. Matter of Garcia, 28 I&N Dec. at 695-696. In this deconstructed system (it’s the BIA’s choice of word, not mine – but I love it) how do you determine the choice of law?

This case is not the BIA’s first attempt to figure out which Circuit law applies. In 2020, they held “[t]he circuit law applied to proceedings conducted via video conference is the law governing the docketed hearing location, as opposed to the location of the administrative control court.” Matter of R-C-R-, 28 I&N Dec. 74, 75 n.1 (BIA 2020). But, there is a circuit split on the choice of law issue. In Mr. Garcia’s case, the two potential Circuits had two different rulings. The Third Circuit, (where Mr. Garcia was located) had previously held that venue (and thus choice of law) was where the hearing was conducted even though the Immigration Judge was in Virginia. Luziga v. Att’y Gen., 937 F.3d 244 (3rd Cir. 2019). By contrast, the Fourth Circuit held that venue (and thus choice of law) was proper in the Fourth Circuit where the respondent appeared from Louisiana (the Fifth Circuit for those keeping track) and the IJ was located at an immigration adjudication center in Virginia (the Fourth Circuit). Herrera-Alcala v. Garland, 39 F.4th 233 (4th Cir. 2022).

Even though here, the IJ was in the Fourth Circuit in Virginia, and the Respondent was in the Third Circuit in Pennsylvania, the BIA logically followed a third option – a decision out of the Second Circuit. Sarr v. Garland, 50 F.4th 326 (2nd Cir. 2022). The Second Circuit had looked at the regulations which provided that venue lies at the Immigration Court where jurisdiction vests under 8 C.F.R. § 1003.14. See 8 C.F.R. § 1003.20(a). Section 1003.14(a) states that “[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charge document is filed with the Immigration Court by [DHS].” Matter of Garcia, 28 I&N Dec. at 701.

The BIA (in a separate section in the case, appropriately entitled “holding”) held that the controlling circuit law in Immigration Court proceedings for choice of law purposes is the law governing the geographic location of the Immigration Court where venue lies, “namely where jurisdiction vests and proceedings commence upon the filing of a charging document, and will only change if an Immigration Judge subsequently grants a change of venue to another Immigration Court.” Matter of Garcia, 28 I&N Dec. at 703. “[C]ontrolling circuit law may only be changed where an Immigration Judge grants a motion to change venue.” Ibid.

The BIA then instructs that as a matter of best practice, the Immigration Judges should clearly identify on the record at the start of each merits hearing, which circuit law applies and where the IJ and the parties are physically located. Then, at the conclusion of the hearing, the analysis and identification of the applicable circuit law should be included in the IJ’s final decision. Matter of Garcia, 28 I&N Dec. at 705.

There appears to be a poison pill in this decision and we should be aware of it. “Immigration Judges should also consider the impact a pending motion to change venue may have on applicable circuit law and request that the parties address this issue where necessary.” Matter of Garcia, 28 I&N Dec. at 705. So, if a client moves from the Fifth Circuit to the Ninth Circuit and has family in the Ninth and an attorney in the Ninth, can an Immigration Judge deny the motion for a change of venue because Ninth Circuit case law may be more favorable to the immigrant than Fifth Circuit case law? I hope it is a throw-away line.

CONCLUSION

The Ninth Circuit is revisiting whether they have any jurisdiction over a discretionary case. Do they have jurisdiction if there is a mixed question of fact and law? Which Supreme Court case applies, Patel or Guerrero-Lasprilla? Or is the fact that the outcome is ultimately discretionary take away jurisdiction under INA § 242? And, the BIA holds that choice of law depends on where venue lies and only changes when the IJ grants a motion for a change of venue.