Can I Switch to a Different Immigration Court Than in the State Where ICE Arrested Me?

A non-citizen who has crossed the border into the United States without inspection, but is later apprehended by U.S. immigration patrols and released from detention, is sometimes given a document called a Notice to Appear (NTA). This shows a court date and location, typically to whichever immigration court is closest to where the arrest took place. Unfortunately for the many relatives coming to join family in the United States without immigration papers (who are "undocumented"), that often results in a situation where the apprehended person has no relatives or friends nearby.

If this happens to you or a family member, you're probably wondering: Is there any way to move the immigration court hearing closer to where the undocumented immigrant's family lives, so that they have a place to stay, and family support, while the court hearings proceed? That's what this article will discuss.

Finding the Immigration Court Location on the NTA

As you might have noticed, the NTA specifically lists the immigration court where the non-citizen who has been arrested must show up for their first, sometimes called "Master Calendar" hearing. Assigning the case to whichever immigration court has jurisdiction over the geographical part of the United States where an unauthorized entrant was discovered is the usual procedure.

The Executive Office for Immigration Review (EOIR) does, however, have numerous immigration courts throughout the United States. It is possible for people to request a change of venue (court location) if you wish to attend court at a location other than where you are scheduled to appear.

The immigration judge is not legally required to grant a change of venue, but may do so as a matter of discretion, after balancing the factors of the case and finding there to be "good cause" for the change (per government regulations at 8 C.F.R. § 1003.20(b)). Factors the judge might consider include, among others:

• whether the person's case has been rescheduled in the past, and
• whether the person has viable options to stay in the United States.

Many immigration judges will deny a request for a change of venue if the non-citizen has changed venues multiple times in a short period of time. As a general rule, it's best to not request a change of venue more than once a year.

How to Request an Immigration Court Venue Change

You must make a written motion for a change of venue and file it with the immigration court where the hearing is currently scheduled. A motion is a legal document that must match various requirements set by the court, as described in the Immigration Court Practice Manual.

When to File the Change of Venue Motion

For starters, your motion must be filed at least 15 days prior to the scheduled hearing.

Earlier would be better, in light of huge backlogs at the immigration courts (exacerbated by terminations of many judges). The immigration courts currently face a backlog of well over 3 million cases (according to government reports), which means venue-change requests may take longer than normal to process. If a noncitizen files a motion to change venue close to an upcoming court date, there's a risk that the judge won't be able to decide on it in time. In that situation, the non-citizen must still attend the hearing at the originally scheduled court.

If a noncitizen has already moved to a new residence and the court has not yet ruled on their venue change motion, they may request to appear at their scheduled hearing virtually (via a videoconferencing system called WebEx) instead of traveling to the original court location. (The National Immigration Project provides a template for this.) But the timing could be tight: to request a virtual hearing, you'd also need to file a separate written motion, at least 15 days before the hearing date, explaining why a remote appearance is necessary for you.

Where to File the Change of Venue Motion

You may file the change of venue motion and Form EOIR-33/IC either online through the EOIR Respondent Portal, by mail, or in person at the immigration court. You'll need to include what's called a "Proof of service," a signed document in which you swear that you are also sending a copy of your motion to the attorney representing the U.S. government.

Of course, you must then be sure to actually send a copy to the government attorney. This can be done by either mailing a copy to the DHS Office of Principal Legal Advisor (OPLA) for your jurisdiction, filing it in person, or submitting it through the DHS's eService portal.

What to Include in the Change of Venue Motion

Within a motion for a change of venue, you must state the date and time of the next scheduled hearing. The motion must contain the non-citizen's responses to all of the allegations listed in the NTA. For example, if the NTA alleges that you are a native and citizen of Mexico when in fact you are from Guatemala, your motion should at least deny the government's allegation on this point. Your motion will also need to designate a country to return to if the case is denied or if the non-citizen ultimately chooses not to contest it (put up a defense).

The non-citizen's motion for a venue change must also explain what type of relief they will seek from the immigration court. Some of the possibilities, such as asylum or (if the person is lucky enough to have U.S. citizen parents or a spouse) are outlined in Possible Defenses to Deportation of an Undocumented Alien.

Finally, the non-citizen must provide an explanation as to why they would prefer a different location. If the request to change venue is based on the fact of having moved, it's also necessary to submit a copy of a change of address form, EOIR 33/IC, to the immigration court system. The change of address form must be filed within five working days of moving to a new residence. Many motions to change venue or reopen are denied because the noncitizen did not notify the court of their new address on time.

Will the Immigration Judge Grant the Change of Venue Motion?

Venue-change requests are often granted when supported by solid documentation and good cause. Taking time to prepare the motion carefully can make the immigration process more manageable for you and your family.

Getting Legal Help

It would definitely be easiest to have an attorney prepare the change of venue motion for you. Also do all you can to find an attorney for the court proceedings, which are complex and require an understanding of the details of immigration law.

Many nonprofit organizations and local bar associations coordinate directly with EOIR to assist people filing venue-change motions, especially those who have been relocated after release from detention.

If you can not afford a private attorney, many reputable nonprofit organizations provide free or low-cost legal services. Some might even work with you to find a pro bono (volunteer) attorney at a private law firm. Check the Immigration Court list of providers of low-cost immigration legal services. It contains information on nonprofit organizations and attorneys who have committed to providing at least 50 hours per year of pro bono legal services and who meet the other eligibility criteria found in the regulations at 8 C.F.R. § 1003.61.