Ramos Ramos, Miguel v. Gonzales, Alberto R. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4050
MIGUEL ANGEL RAMOS,
Petitioner,
v.
JOHN ASHCROFT, Attorney General of the United States,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals
____________
SUBMITTED MAY 25, 2004—DECIDED JUNE 15, 2004
____________
Before EASTERBROOK, ROVNER, and EVANS, Circuit
Judges.
EASTERBROOK, Circuit Judge. What is the location of a
proceeding conducted in two places at once? Immigration
officials, who propose to remove Miguel Angel Ramos from
the United States, offered him a hearing in Council Bluffs,
Iowa. There Ramos, his lawyer, his witnesses, and the law-
yer for the government testified and argued in front of a
television set, connected by teleconference equipment to the
chambers of an immigration judge in Chicago, Illinois. At
the end of a hearing the immigration judge read a decision
into the record; a formal order bore the caption:
2 No. 03-4050
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
Chicago, Illinois
The Board of Immigration Appeals dismissed Ramos’s
appeal; its order begins: “File: A77-862-762 — Chicago”.
Ramos filed his petition for review in this circuit. The
Department of Justice now asks us to transfer the proceed-
ing to the eighth circuit, relying on 8 U.S.C. §1252(b)(2),
which says in part: “The petition for review shall be filed
with the court of appeals for the judicial circuit in which the
immigration judge completed the proceedings.” According to
the Department, a proceeding is “completed” where the
lawyers and witnesses appear for the hearing, rather than
where the court is located and the order is issued.
Teleconferencing is increasingly common, so we were
surprised to discover that no court has addressed the ques-
tion where a proceeding is “completed” for purposes of
§1252(b)(2). There is enough ambiguity in the phrase, and
enough potential for recurrence, that immigration offi-
cials would be well advised to issue regulations specifying
where they think immigration proceedings are “completed.”
But there is no such regulation on the books. The statute
itself asks, not where the lawyers, witnesses, or litigants
played their parts, but where “the immigration judge
completed the proceedings.” The immigration judge com-
pleted his role in Chicago—something that would have been
true even had this been a three-cornered teleconference
(with the IJ participating from, say, a vacation home in
Michigan). The immigration court’s home office is where all
parties were required to file their motions and briefs, see 8
C.F.R. §1003.31(a), where the orders were prepared and
entered, and where Ramos now prefers to litigate. It would
be impossible to justify balking him in this respect, just
because the IJ could be seen live on TV in Iowa. Federal
No. 03-4050 3
judges often conduct hearings by teleconference between the
court and a prison, so that prisoners need not be trans-
ported (with attendant cost and escape risks). That does not
mean that an appeal would lie to the circuit in which the
prison is located. Just so with §1252(b)(2).
Doubtless there is a sense in which proceedings were
“completed” in Iowa as well as in Illinois, for nothing would
have happened had the immigration judge not transmitted
a ruling to the parties assembled there. Maybe regulations
could deem the proceedings completed in both places. Such
regulations—or a revision to the statute— would distribute
judicial review more widely among the courts of appeals,
rather than concentrating business in the circuits that
contain the headquarters of the immigration courts. But all
regulations could do, in the absence of statutory amend-
ment, would be to offer the alien a choice; the statute itself
ensures that the alien may petition for review in the circuit
where the immigration court is located. So the motion to
transfer is denied.
One further comment is in order. The Department of
Justice filed its motion on April 22, 2004, the day its brief
was due. Counsel asked us to grant more time to file a brief
if we should deny the motion for transfer. Filing motions in
lieu of briefs, a form of self-help extension, has become
increasingly common but is not authorized by any rule,
either national or local. It is fine to file a motion to affirm,
to dismiss for want of jurisdiction, to transfer to another
circuit, and so on; the problem lies in the belief that any
motion automatically defers the deadline for filing the brief.
A brief must be tendered when due. If a party needs more
time, a request for an extension must be filed in advance of
the due date. If extra time has not been granted in advance,
then the litigant must file its brief as scheduled. All too
many motions this court has seen have the subtext: “Oops!
My brief is due today but is not ready. It is too late to seek
an extension, and I don’t have a good reason for one
4 No. 03-4050
anyway. So I’ll whip up a short motion. Whew!” No go. If
events justify a last-minute motion concerning jurisdiction,
venue, sanctions, or any other subject, then that motion
may accompany the brief; a motion is not a substitute for a
brief.
The motion to transfer in this case should have come well
before Ramos filed his own brief. His petition was filed on
November 21, 2003, and Ramos served his brief four
months later, on March 23, 2004. The Department of
Justice should have acted within a month (two at the out-
side) of the petition’s filing date. By taking five months to
seek a transfer, and requesting that step only after Ramos
had briefed the case, the respondent created a risk that
Ramos would need to prepare a fresh brief, conforming to
the requirements of the eighth circuit and emphasizing that
circuit’s decisions. (Ramos’s brief cites 16 decisions of this
circuit and none from the eighth circuit.) The Department
of Justice has no warrant to put its adversary to that cost
and inconvenience. We could have denied the motion on
timeliness grounds alone, and in the future we will do so.
The brief for the Attorney General is overdue. No exten-
sion of time has been granted. Nor should the respondent
need much time to file; the brief should be written already.
Unless the respondent files a brief on the merits by June
22, 2004, the matter will be submitted for decision on the
petitioner’s brief alone. Fed. R. App. P. 31(c).
No. 03-4050 5
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-15-04