Safe Havens
§ 3.8 2. Governing Jurisdiction
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A favorable case creates a stronger argument if the client’s case is pending in a lower court that is obligated to follow the rulings of the court that decided the case on which the safe haven argument is based. For example, a favorable BIA decision will govern decisions by all Immigration Judges nationwide. The decision of a federal court of appeals will govern decisions of the BIA in cases arising within the circuit, and decisions of Immigration Judges sitting within the territorial boundaries of the circuit.
Even if a favorable circuit decision governs the immigration courts sitting within that circuit, it is possible for a safe haven to become a non-safe haven if:
(a) the client moves to another state in a different circuit following a different rule on the question governing the safe haven, or
(b) the client travels outside the country and returns at a port of entry located in a different circuit that follows a different rule; or
(c) the client continues to live within the circuit following the safe haven rule, but travels outside the circuit and is detained by the DHS and brought into removal proceedings there (in which case counsel should consider filing a motion to change venue), or even
(d) the client is arrested by the DHS within the favorable circuit, but is detained and moved by the DHS to a detention facility located in a different circuit.
Under these circumstances, a perfectly good safe haven within a certain circuit may be transformed into a non-safe haven. Counsel must therefore ascertain the law on the question in different circuits across the country, and advise the client of the risks of moving or travelling outside the circuit. Another issue to consider is whether a decision in one jurisdiction that your client is not deportable is binding on immigration judges in other jurisdictions.
A safe haven may therefore have geographical limitations on its safety, and be less safe outside the particular jurisdiction.
