Today’s Ad Law Reading Room entry is “Immigration Venue Exceptionalism,” by Stacy Caplow and Maryellen Fullerton, which is forthcoming in the Cornell Law Review. Here is the abstract:

The notion of “exceptionalism” has characterized immigration law for more than a century. Many constitutional and other traditional norms do not apply in the realm of immigration law. Venue, as prescribed and practiced in Immigration Courts, is yet another example of outlier conduct. Venue, a standard litigation norm, has been seriously perverted. Instead of protecting the parties involuntarily brought into Immigration Court, the immigration venue regulation vests exclusive authority in the government. As a consequence, the government not only has the sole power to initiate hearings about deportability, but it can also choose when and where to locate the proceedings. This allows the government to capitalize on geographical and legal advantages; it incentivizes forum shopping for venues with immigrant-unfriendly law in locations that maximally inconvenience the noncitizen.

Using the highly publicized deportation proceedings against Mahmoud Khalil as an exemplar of this largely invisible aspect of immigration law, this Article describes and exposes immigration venue exceptionalism, the significant role it plays, the unfairness that has developed in recent years, and the urgent need for reform. It outlines a proposal to bring venue for Immigration Court back in line with general venue provisions that apply in U.S. courts. Immigration venue, like venue in general federal litigation, should presumptively be located in the geographic region where the responding party resides or where the underlying conduct took place. If venue is situated elsewhere, a motion to change venue should presumptively be granted in order to achieve proper venue. This approach offers a strategy to restore venue determinations to the pre-remote hearing era when removal proceedings generally took place where the noncitizen was located.

“Immigration Venue Exceptionalism” follows a simple formula: identify a discrete problem, analyze that problem, and propose a solution. But behind that tried-and-true structure lies a wealth of eye-opening analysis. Perhaps particularly interesting for those coming to immigration law from the outside is the authors’ discussion of the rise of remote hearings and its implications for immigration venue. With an argument pushed forward by reference to recent events, and the Mahmoud Khalil proceedings in particular, the article also makes for an engaging and smooth read, all the more impressive given that it’s ultimately a clear-eyed effort to grapple with the realities of the United States’ immigration machinery.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.