Immigration Court Venue Selection: Who Picks the Forum?

In most American litigation, the person being sued has some say, built into the rules, about where the case is heard. In immigration court the government chooses where it files, and a respondent who wants a different court has to persuade an immigration judge there is "good cause" to move. A recent Regulatory Review essay, The Problems with Immigration Court Venue Selection, argues that immigration courts invert the venue principles used elsewhere, and that this enables systemic unfairness and government forum shopping.

I find the argument persuasive in outline. This essay tries to test it against the statutes, regulations, and cases a practitioner would check, to say what a respondent can actually do about venue, and to ask what the problem looks like when more of the machinery becomes automated. I also want to be plain about where the evidence is strong and where it is thin.

What Is Venue, and Why Does It Matter?

Venue is the question of where a case is heard. In federal civil litigation, 28 U.S.C. § 1391(b) generally places a case in a district where a defendant resides or where a substantial part of the events took place. A defendant who believes the plaintiff chose badly can seek a transfer under 28 U.S.C. § 1404(a), which allows transfer "for the convenience of parties and witnesses, in the interest of justice."

The underlying idea is old: a person should not have to defend a case in a place chosen to burden them. Location affects whether someone can attend, which lawyers are practically within reach, and which court of appeals will eventually review the result. Only the last of these is invisible to most people until it decides their case.

How Does Venue Work in Immigration Court?

Removal proceedings begin when the Department of Homeland Security files a charging document, usually a Notice to Appear, with an immigration court. Under 8 C.F.R. § 1003.14(a), jurisdiction vests and proceedings commence when that document is filed. The statute requires the notice to specify the time and place of the hearing (8 U.S.C. § 1229(a)(1)(G)(i)), and the Supreme Court held in Pereira v. Sessions (2018) and Niz-Chavez v. Garland (2021) that a notice lacking that information, or delivered in pieces, does not do its full legal work for certain purposes.

The government choosing the first location is not shocking by itself, since civil plaintiffs choose where to file too. The difference is that nothing in 8 C.F.R. § 1003.14(a) ties the filing court to where the respondent lives. Residence matters later, when someone asks to move the case.

The decision-maker is also unlike a federal civil judge. An immigration judge is defined in 8 U.S.C. § 1101(b)(4) as an attorney appointed by the Attorney General, which means the adjudicator works inside the same department that prosecutes the case. I do not read that as a claim about any individual judge's integrity. It is a claim about what procedural rules have to do when independence is thin.

How Do You Ask for a Different Court?

The mechanism exists, and a respondent who knows it has a real tool. Under 8 C.F.R. § 1003.20(b), the immigration judge may change venue "for good cause" only on a motion by one of the parties, and only after the other party has had notice and an opportunity to respond. Three details shape how it works in practice:

• The judge decides. A respondent's venue motion goes to the immigration judge. It is separate from DHS's own authority over where someone is detained, which I discuss below.
• The motion needs facts, not just a request. The Board of Immigration Appeals has framed good cause around factors such as administrative convenience, expeditious treatment of the case, the location of witnesses, and the cost of transporting witnesses or evidence, in Matter of Rahman, 20 I&N Dec. 480 (BIA 1992), and the decisions it builds on. Residence is not a named factor there, in my reading, but it is the usual evidence for the witness and cost points, so practitioners put lease records, utility bills, employment proof, and a witness list in front of the judge. Anyone relying on this should read the opinion itself.
• Timing matters. The Immigration Court Practice Manual, which EOIR publishes, has a chapter on motions to change venue, and the usual practice is to file early, before pleadings are taken. I would check the current chapter for filing requirements, because they change.

One trap deserves its own sentence: a pending motion generally does not excuse attending the scheduled hearing unless the judge has granted it, so the safe assumption is to appear.

This remedy works best for people with counsel and documents. For a person without a lawyer, writing a persuasive evidentiary motion in a second language is a lot to ask. The right to counsel in removal proceedings is real, but 8 U.S.C. § 1229a(b)(4)(A) specifies representation "at no expense to the Government," so there is no public defender system behind it.

What Happens If You Miss the Hearing?

A person who does not appear after proper written notice can be ordered removed in absentia under 8 U.S.C. § 1229a(b)(5)(A), if DHS proves notice and removability by clear, unequivocal, and convincing evidence. That is serious, though it is not automatic or irreversible.

Section 1229a(b)(5)(C) allows rescission through a motion to reopen. A motion filed within 180 days can succeed on a showing of "exceptional circumstances," which 8 U.S.C. § 1229a(e)(1) illustrates with serious illness or death in the family while excluding "less compelling circumstances." A motion filed at any time can succeed if the person did not receive proper notice, or was in federal or state custody through no fault of their own. Filing the motion stays removal while it is pending.

Two cautions apply. In Campos-Chaves v. Garland (2024), the Supreme Court held that a notice of hearing sent after a deficient Notice to Appear can satisfy the notice requirement for in absentia purposes, which narrowed the lack-of-notice route. And whether a long, expensive journey counts as "exceptional" is not something I would assume. Separately, 8 U.S.C. § 1229a(b)(7) makes a person ordered removed in absentia, after oral notice of the consequences, ineligible for certain discretionary relief for ten years.

So the real picture is a harsh default with a narrow, technical escape. Distance raises the odds of needing that escape.

How Does This Compare With Ordinary Venue Rules?

The table is a simplification, and the civil column varies by case. The last row is where the forum-shopping argument has its force.

Why Does Detention Change Everything?

The statute on petitions for review says they "shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings" (8 U.S.C. § 1252(b)(2)). The Board of Immigration Appeals, for its part, follows the precedent of the circuit in which a case arises, as it explained in Matter of Anselmo, 20 I&N Dec. 25 (BIA 1989). Circuits do not always agree on immigration questions, so the place where proceedings finish can decide which legal rule applies to the same facts.

For people who are not detained, this mostly follows where they live and where DHS files. For detained people, DHS has broad authority over where they are held under 8 U.S.C. § 1231(g)(1), and detained dockets generally sit at or near the facility. A transfer between facilities can therefore change the court, and eventually the circuit, with no immigration judge ruling on it. The mechanics differ from the non-detained case, where a respondent's own motion is the main tool.

Habeas litigation follows a similar logic. Under Rumsfeld v. Padilla, 542 U.S. 426 (2004), a petition generally goes to the district of confinement, naming the immediate custodian. This is why the early litigation over Mahmoud Khalil's detention in 2025, after his arrest in New York and move to Louisiana, was so much about which court could hear his case.

I want to be careful about what that shows. It shows that detention location drives forum, which is documented in the structure of the statutes. It does not show that transfers are chosen to obtain favorable circuit law. DHS has operational reasons to move people, including bed space, security, and medical needs, and I am not aware of a public dataset that links individual transfers to the law of the receiving circuit. That evidence gap is itself a finding: the system gives one party the ability to affect governing law, and does not require anyone to explain why.

A researcher with access to transfer records could test this, and the Regulatory Review essay points toward the question. Until someone does, "forum shopping" is best read as a description of available power, not proof of motive.

Does Distance Still Matter If Lawyers Are Not Licensed by Location?

Yes, though not because of licensing. Immigration practice is not geographically licensed: under 8 C.F.R. § 1292.1(a)(1), an attorney in good standing of the bar of any state can represent a respondent, and the attorney files a notice of appearance with the court. A lawyer in Chicago can legally appear in a Texas court.

The barriers are practical. Fees rise when travel is involved, remote hearings help only where facilities and courts support them, and detained people often have limited phone and visiting access to counsel. Meanwhile, witnesses and records stay where the respondent's life is, which is also the evidence a venue motion would rely on.

When I say distance compounds disadvantage, I mean that each of these is a modest cost, and they all fall on the person least able to absorb them.

What Does This Have to Do With AI?

Venue looks like an old-fashioned procedural subject, but I think it is a clean case study for a question that will come up in every institution that automates decisions: who can contest an assignment, and who has to explain it?

Federal agencies already publish inventories of their AI use cases, a practice that traces to Executive Order 13960 (December 2020) on trustworthy AI in the federal government. Immigration enforcement has had automated tools in the loop, too. Reuters reported in 2020 that ICE's Risk Classification Assessment, a tool used in custody decisions, had been changed so that it stopped recommending release. I am not aware of public evidence that venue or transfer decisions are currently made by algorithm, and I would not claim that.

The point is about direction. Today, a transfer decision has a person behind it and no required explanation. Tomorrow it may have a scoring system behind it and no required explanation. In my view, the larger risk is not that a machine chooses badly but that automation makes an unexplained choice look neutral, and removes the one remaining step where someone could ask why.

I have written elsewhere about how backlog pressure can wear down the substance of review, in the debate over skipping asylum interviews. Venue is the same pressure in a quieter form. Anyone designing or buying a scheduling or routing tool for an adjudicating body should be asking, before deployment, what a person on the receiving end can say to challenge its output. Judgment that stays in the loop is also a theme in my writing on human judgment.

What Could Change?

Reform proposals fall into a few groups, and each trades one problem for another:

• Require filing near the respondent's residence, or require DHS to justify filing elsewhere. This borrows civil venue logic and shifts the burden to the stronger party. The tradeoff is administrative: courts are not evenly distributed, and some dockets would be flooded.
• Loosen the good-cause standard, or make transfer presumptive for respondents who live far from the court. This helps people who file motions. It still depends on people knowing to file and being able to document their case.
• Require notice and a chance to be heard before a transfer of a detained person changes the court and circuit. This addresses the forum-shopping concern directly. The tradeoff is that it constrains detention operations, and DHS will argue that emergencies and capacity limits need flexibility.
• Move immigration adjudication into an independent court. Proposals of this kind have circulated for years and would address the problem of the adjudicator working inside the prosecuting department. They are also the hardest to enact, and venue reform should not wait for them.
• Require reasons and records for transfers. This is the cheapest option and the one that would generate the data the debate now lacks, though a required explanation can become boilerplate unless someone reviews it.

No single option solves the problem alone. In my view the reasons-and-records proposal is the best first step, because every other debate gets better once we can see what is actually happening.

What Should Readers Take From This?

For people who work in or near immigration law, venue is a strategic question from the first day. The practical steps are to check the Practice Manual's venue chapter, document residence and witnesses early, keep the address on file current, and appear unless a motion has been granted. For employers, universities, and families supporting someone in proceedings, the useful fact is that a hearing location can change on a judge's order and cannot be changed by asking politely.

For everyone else, a quick test of any process is to ask who chose the place, who pays for the distance, and who must prove the choice was wrong. In immigration court, the answers to those three questions are the government, the respondent, and the respondent.

Last updated: 2026-10-07

Frequently Asked Questions

Who decides where an immigration case is heard?

DHS chooses the first court by filing a charging document, and jurisdiction vests when it is filed (8 C.F.R. § 1003.14(a)). After that, an immigration judge can change venue for good cause, but only on a motion from a party and after the other side has a chance to respond (8 C.F.R. § 1003.20(b)).

Can a missed immigration hearing be undone?

Sometimes. An in absentia order can be rescinded by a motion to reopen under 8 U.S.C. § 1229a(b)(5)(C), within 180 days for exceptional circumstances or at any time for lack of proper notice or custody through no fault of the respondent. These grounds are narrow, and Campos-Chaves v. Garland (2024) narrowed the notice route.

Why does the circuit where a case ends matter?

Petitions for review go to the circuit where the immigration judge completed the proceedings (8 U.S.C. § 1252(b)(2)), and the Board of Immigration Appeals follows the law of the circuit where a case arises (Matter of Anselmo, 20 I&N Dec. 25). Because circuits can interpret immigration law differently, location can affect the legal rule applied.

Does a lawyer need to be licensed in the state where the immigration court sits?

No. Under 8 C.F.R. § 1292.1(a)(1), an attorney in good standing of any state bar may represent a respondent. Distance still raises costs and makes access harder, especially for people in detention.