Immigration article of the Day: Venue by Zoom: Embracing an Immigrant Choice Model of Litigation by Jay Krishnan

Venue by Zoom: Embracing an Immigrant Choice Model of Litigation by Jay Krishnan, Vol. 59 UC Davis Law Review (forthcoming 2026)

Abstract

On day one of his second term, President Trump issued several sweeping immigration-related executive orders.  Among his priorities, the President promised to exponentially increase deportations – immediately.

For immigrants wishing to judicially avoid deportation, they must first seek relief from an immigration court located within the Department of Justice, and if that fails, then from the DOJ’s Board of Immigration Appeals.  If still unsuccessful, the immigrant can appeal to an Article III federal circuit court and then to the Supreme Court.

Given how relatively few cert petitions are accepted overall, the question this study examines is which federal circuit court should hear the immigrant’s case.  Some circuits have held that the Article III appeal must be heard in the appellate court overseeing the immigration forum where the immigrant initially appeared.  Yet, as an increasing number of these immigration proceedings are taking place remotely, with the judge presiding in a different jurisdiction, other courts have ruled that the federal appeal must occur in the circuit where that judge was sitting.

Nowhere in this equation, though, is there attention given to what the immigrant wants.  As such, this study argues that immigrants, either on their own or through their counsel, should decide.  There are enormous, preexisting advantages possessed by the government in immigration litigation; thus, fairness demands that the immigrant or representing counsel be allowed to forum shop to determine which circuit court will best adjudicate the incredibly weighty question of whether or not deportation is warranted.