In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-4050

MIGUEL ANGEL RAMOS,

Petitioner,

v.

JOHN ASHCROFT, Attorney General of the United States,

Respondent.

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Petition for Review of an Order

of the Board of Immigration Appeals

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SUBMITTED MAY 25, 2004—DECIDED JUNE 15, 2004

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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 lawyer 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 proceeding 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 question 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 officials 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 completed 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 transported (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 amendment, 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 outside) 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 extension 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