CERDA REYES

Cite as 

 (BIA 2015)                                  Interim Decision #3829




           Matter of Armando CERDA REYES, Respondent
                               Decided March 24, 2015
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals


  The rules for applying for a bond redetermination at 

(c) (2014)
relate to venue, not jurisdiction.

FOR RESPONDENT: Helen Parsonage, Esquire, Winston-Salem, North Carolina
FOR THE DEPARTMENT OF HOMELAND SECURITY: Scott D. Criss, Assistant
Chief Counsel
AMICI CURIAE: Carolinas Chapter of the American Immigration Lawyers Association;
Catholic Charities of the Archdiocese of Newark; Dolores Street Community Services;
Northwest Immigrant Rights Project; and National Immigration Project of the National
Lawyers Guild1
BEFORE:  Board Panel:  ADKINS-BLANCH, Vice Chairman; MILLER and
GUENDELSBERGER, Board Member.
ADKINS-BLANCH, Vice Chairman:


    In a decision dated March 13, 2014, an Immigration Judge determined
that she lacked jurisdiction under 

(c) (2014) to consider
the respondent’s request for a change in custody status.2 The respondent
appealed, and on October 7, 2014, we issued a decision dismissing the
appeal as moot. The respondent and amici curiae subsequently requested
that we publish that decision. In order to include additional analysis, we
will reconsider this matter sua sponte pursuant to 

(a)
(2014) and vacate our prior order. The Immigration Judge’s determination
that she lacked jurisdiction will be reversed, but the respondent’s appeal
will be dismissed as moot because he received a later bond hearing.3


1
   Trina Realmuto, Esquire
2
   The reasons for the Immigration Judge’s determination are set forth in a written
decision dated April 22, 2014.
3
   Although we dismiss the respondent’s appeal as moot, we will address the
jurisdictional question because it is an important and recurring issue. See Matter of Luis,

, 752–54 (BIA 1999) (explaining that because the Board is an
                                                                            (continued . . .)

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Cite as 

 (BIA 2015)                                 Interim Decision #3829




              I. FACTUAL AND PROCEDURAL HISTORY
    The respondent was detained at the York County Detention Center in
York, South Carolina, when he filed a motion for a bond redetermination
hearing on March 11, 2014. The Charlotte Immigration Court, which has
authority over that detention facility, scheduled a bond hearing for the
respondent for March 13, 2014. On the day of the scheduled hearing, the
Department of Homeland Security (“DHS”) informed the Immigration
Judge in Charlotte that it had transferred the respondent to the Stewart
Detention Facility in Lumpkin, Georgia. Finding that the respondent had
been transferred from the York County Detention Facility in South Carolina
at the time of the hearing, the Immigration Judge concluded that she lacked
jurisdiction to hear the custody redetermination request because the
Lumpkin Immigration Court had jurisdiction over the place where the
respondent was detained.4

                                   II. ANALYSIS
                   A. Jurisdiction To Conduct a Bond Hearing

   This appeal requires us to determine whether the rules for applying for a
bond redetermination at 

(c) are jurisdictional or relate
only to venue.5 The regulation provides in pertinent part:

        (a) Custody and bond determinations made by the service pursuant to 8 CFR
      part 1236 may be reviewed by an Immigration Judge pursuant to 8 CFR part 1236.
        ....
        (c) Applications for the exercise of authority to review bond determinations shall
      be made to one of the following offices, in the designated order:
        (1) If the respondent is detained, to the Immigration Court having jurisdiction
      over the place of detention;
        (2) To the Immigration Court having administrative control over the case; or
        (3) To the Office of the Chief Immigration Judge for designation of an
      appropriate Immigration Court.

_______________________________
administrative body, it is not subject to the case-or-controversy requirement in Article III
of the Constitution but may still dismiss a case as moot as a matter of prudence).
4
    The parties dispute whether the respondent was still physically within the jurisdiction
of the Charlotte Immigration Court at the time of his hearing. In light of our decision
today, we need not address this issue.
5
    The Immigration Court’s jurisdiction typically vests with the filing of a charging
document, but no charging document is required in bond proceedings. 

(a) (2014).


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 (BIA 2015)                                 Interim Decision #3829




    The plain language of 

(c) does not address a
tribunal’s authority to consider a bond determination but refers instead to
“[a]pplications for the exercise of authority.” (Emphasis added.) This
wording suggests that, rather than giving the court its authority to
review the case, the regulation merely provides a means for requesting that
the court exercise its preexisting authority. It is significant that 

(a) makes reference to 8 C.F.R. part 1236 (2014), which
delineates an Immigration Judge’s authority to hear bond cases. According
to 

(d)(1), an Immigration Judge is “authorized to exercise
the authority in section 236 of the Act . . . to detain the alien in custody,
release the alien, and determine the amount of bond.” (Emphasis added.)
This language makes clear that the authority to hear bond cases comes from
the Act itself, via delegation from the Attorney General.
    The language of 

(c)(3) further clarifies the
nonjurisdictional nature of the regulation because it permits applications to
be filed with the Office of the Chief Immigration Judge (“OCIJ”) for
designation of an appropriate Immigration Court. In giving the OCIJ
authority to designate an appropriate location for the hearing, the regulation
presumes that any court so designated would have jurisdiction to hear the
bond case.6 Accordingly, we interpret the rules at 

(c) to
be mandatory, but not jurisdictional.7
    Although the regulations suggest that a bond hearing will usually be
held in the location where the alien is detained, policies related to the
scheduling of bond hearings, including determining the location of the


6
    Jurisdiction refers to the court’s authority to adjudicate a case. Venue is the place
where such authority is to be exercised. See, e.g., Iselin v. La Coste, 

(5th Cir. 1945) (“Jurisdiction is the power to adjudicate and is granted by Congress.
Litigants may not confer this power on the court by waiver or consent, but the place
where the power to adjudicate is to be exercised is venue, not jurisdiction.”). Compare
28 U.S.C. §§ 1331−1332 (2012) (defining subject matter jurisdiction of the Federal
district courts), with 

 (2012) (governing venue in Federal district courts).
7
    In so finding, we agree with the DHS that an alien complying with 

(c) cannot “‘force’ jurisdiction merely by the filing of a motion.” Instead, the
Immigration Judge still must determine if he or she has jurisdiction over the bond hearing
pursuant to section 236 of the Act, 

 (2012). The limits on an Immigration
Judge’s jurisdiction over bond proceedings in section 236 still prohibit the Immigration
Judge from hearing a request for a custody redetermination filed in advance of an alien’s
transfer from criminal custody into DHS custody. Matter of Sanchez, 

(BIA 1990). Further, under 

(a) and (h)(2)(i), an Immigration Judge
is limited to reviewing certain custody or bond determinations previously rendered by the
DHS.


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Cite as 

 (BIA 2015)                        Interim Decision #3829




hearing, are properly within the province of the OCIJ. 8 Therefore, we
decline to address the scheduling issues raised by the parties.

                                     B. Mootness

    Agency records indicate that the respondent received a bond hearing
before the Immigration Judge at the Stewart Detention Center in Lumpkin,
Georgia, on March 27, 2014, after the DHS moved him to that location.
The respondent did not appeal from that decision. His earlier application
for a bond hearing before the Charlotte Immigration Court is therefore now
moot.
    ORDER: The October 7, 2014, decision of the Board is vacated.
    FURTHER ORDER: The respondent’s appeal is dismissed as moot.




8
   We recognize that there must be coordination between the OCIJ and the DHS to
ensure that aliens receive prompt hearings at the appropriate venue.


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