Interim Decision #3174

Interim Decision #3174

MATTER OF RAHMAN

In Exclusion Proceedings

A-70105032

Decided by Board May 12, 1992

(I) An immigration judge's discretion to change venue in exclusion and deportation

proceedings is subject to the existence of good cause for such a change, and good cause

is determined by balancing the relevant factors, including administrative convenience,

expeditious treatment of the case, location of witnesses, cost of transporting witnesses

or evidence to a new location, and factors commonly associated with the alien's place

of residence.

(2) While factors commonly associated with an applicant's place of residence are

relevant to the question of proper venue, the mere fact that an applicant in exclusion

proceedings allegedly resides or wishes to reside in another city, without a showing of

other significant factors associated with such residence, is insufficient cause to

outweigh the Immigration and Naturalization Service's opposition to a motion for

change of venue, particularly where the Service has demonstrated that it would be

prejudiced by such a change.

(3) The Government is not required to accommodate the applicant's choice of a distant

attorney and his acquisition of an interpreter by changing venue at considerable

expense, especially where there is no showing that local counsel is unavailable or that

an interpreter cannot otherwise be obtained.

(4) An immigration judge's order changing the venue of the hearing dues nut necessarily

affect the place where the alien may be detained, because an immigration judge has no

authority over the place of detention.

(5) An immigration judge may grant a change of venue only upon motion by one of the

parties and only after the other party has been given notice and an opportunity to

respond.

EXCLUDABLE: Act of 1952—Sec. 212(a)(5)(A)(i) [8 U.S.C. § 1182(a)(5)(A)(i)]—No

valid labor certification

Sec. 212(a)(6)(C)(i) [8 U.S.C. § 1182(a)(6)(C)(i)]—

Fraud or willful misrepresentation of a material fact

Sec. 212(a)(7)(A)(i)(1) [8 U.S.C. § 1182(a)(7)(A)(i)(1)]—

No valid immigrant visa

ON BEHALF OF APPLICANT:

David L. Amkraut, Esquire

201 North Figueroa Street, Suite 700

Los Angeles, California 90012

4R(1

ON BEHALF OF SERVICE:

Dean A. LeVay

District Counsel

David M. Dixon

Appellate Counsel

Interim Decision #3174

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

On November 7, 1991, an immigration judge ordered that venue in

this case be changed from Phoenix, Arizona, to Los Angeles, California. The Immigration and Naturalization Service has appealed.' The

appeal will be sustained, and the record will be remanded to the

immigration judge.

This appeal is interlocutory. In order to avoid a piecemeal approach

to the many issues that may arise in the course of an exclusion or

deportation proceeding, this Board does not ordinarily entertain

interlocutory appeals. See Matter of Ruiz-Campuzano, 17 I&N Dec.

108 (BIA 1979); Matter of Ku, 15 I&N Dec. 712 (BIA 1976); Matter of

Sacco, 15 I&N Dec. 109 (BIA 1974). However, we have on occasion

ruled on the merits of an interlocutory appeal where we deemed it

necessary to address important jurisdictional questions regarding the

administration of the immigration laws, or to correct recurring

problems in the handling of cases by immigration judges. See, e.g.,

Matter of Guevara, 20 I&N Dec. 238 (BIA 1990, 1991), and cases cited

therein. In the instant case, the Service has shown the existence of

many similar cases involving a recurring problem in the handling of

certain motions to change venue in exclusion cases. We find consideration of this appeal appropriate.

The applicant in this case arrived at a port of entry to the United

States in Los Angeles, California, on September 7, 1991, with an

altered passport. He was issued a charging document, the Notice to

Applicant for Admission Detained for Hearing Before Immigration

Judge (Form 1-122), alleging that he had no valid entry documents,

that he had committed fraud in an attempt to procure entry, and that

he intended to enter the United States to perform labor without proper

authorization.

In the judgment of the district director, there was insufficient

detention space available to detain the applicant in the Los Angeles

area. Therefore, the Service transferred the applicant and a number of

others to a detention facility in Florence, Arizona, and filed the

charging document with the Office of the Immigration Judge in

Phoenix, Arizona.

Later, the applicant, through counsel, filed a motion to change

venue to Los Angeles. The motion stated that the applicant's counsel

of choice, his witnesses, and an interpreter would be available in Los

Angeles, but not in Arizona. However, no witnesses were specified, nor

I The Service's request to consolidate the appeal with seven similar cases is denied for

reasons of administrative convenience peculiar to the cases.

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Interim Decision #3174

was the nature of their possible testimony specifically indicated, nor

was there any allegation that the applicant was unable to obtain

counsel to represent him in Phoenix, Arizona. The motion did include

an address in Los Angeles where the applicant could be reached, as the

regulations required. 8 C.F.R. § 3.19(c) (1991). 2 The address given,

however, was simply that of the applicant's attorney. There was no

evidence that the applicant himself had ever resided anywhere in the

United States, and there was apparently no specific indication of where

he might reside if released. In any event, at the time of the motion, he

was still detained in the custody of the Service.

The Service opposed the applicant's motion. Counsel for the

Government argued that there was no good cause for the change of

venue, and that granting the motion would require the Service either

to transport the applicant, under guard, for hundreds of miles to his

hearing and back again at considerable expense or, in the alternative,

to release him on parole under 8 C.F.R. § 212.5 (1991), with little or

no assurance that he would later appear for his hearing. The Service

presented specific evidence of prior cases in which similar changes of

venue had been substantially prejudicial to the Government due to

transportation and detention costs and the risk of flight from custody

involved in such an operation.

However, the immigration judge granted the applicant's motion

and, in a brief form order, ordered a change of venue to Los Angeles,

"in order to permit respondent [sic] to defend himself/herself in the

area in which he/she resides." The Service represents that the

immigration judge also stated his reasons orally as follows: "The

Applicant landed at Los Angeles, has no connections at Florence,

Arizona [the place of detention], and wants to go to Los Angeles."

On appeal, the Service argues that the immigration judge erred by

changing venue in this case without a proper finding of good cause,

where the Government had demonstrated that it would be prejudiced

by such a change. We agree.

An immigration judge's discretion to change venue in both exclusion and deportation cases is subject to the existence of good cause for

such a change. 57 Fed. Reg. 11,568, 11,572 (1992) (to be codified at 8

C.F.R. § 3.20) (interim Apr. 6, 1992) (an immigration judge may

change venue for good cause only upon motion by one of the parties

and only after the other party has been given notice and an

opportunity to respond). 3 Good cause is determined by balancing the

2 This requirement is retained under newly revised regulations governing changes of

venue. See 57 Fed. Reg. 11,568, 11,572 (1492) (to be codified at 8 C.F.R. § 3.20)

(interim Apr. 6, 1992).

3 Prior regulations in effect at the time of the order below authorized an immigration

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factors we have found relevant to the venue issue. See Matter of

Rivera, 19 I&N Dec. 688 (BIA 1988); Matter of Velasquez, 19 I&N

Dec. 377 (BIA 1986) (relevant factors include administrative convenience, expeditious treatment of the case, location of witnesses, and

cost of transporting witnesses or evidence to a new location); see also

Maldonado-Perez v. INS, 865 F.2d 328 (D.C. Cir. 1989); La Franca v.

INS, 413 F.2d 686 (2d Cir. 1969).

In the instant case, the immigration judge's order was perfunctory

and showed no evaluation or balancing of the factors we have found

relevant to a finding of good cause for a change of venue. We note that

a brief statement of the reasons for an immigration judge's decision to

grant or deny a change of venue over the objection of one of the parties

would assist this Board in reviewing the decision and determining

whether good cause exists. We have required such a statement in other

contexts. See, e.g., Matter of Correa, 19 I&N Dec. 130 (BIA 1984)

(immigration judge should state reasons for denial of motion to reopen

to allow meaningful review by the Board); Matter of Daryoush, 18 I&N

Dec. 352 (BIA 1982) (district director should provide reasons for bond

determination to facilitate meaningful review). Here, no statement

showing a balancing of the relevant factors was given, despite the

Service's oral and written opposition to the motion and its showing of

prejudice, as noted above. Upon review, we must conclude that no

good cause for a change of venue existed.

Moreover, the reasons the immigration judge expressed for his

order were not altogether appropriate under the circumstances. First,

the place where an applicant happens to attempt to enter the United

States, in and of itself, may have little, if any, significance to the

question of where venue should lie in an exclusion proceeding. The

alien cannot select a venue by deciding where to attempt to enter the

United States. The venue question is rather entrusted in the first

instance to the discretion of the district director, who files the charging

document in the venue selected. Matter of Vtctorino, 18 I&N Dec. 259

(BIA 1982); 8 C.F.R. § 103.1(n)(I) (1992). Thereafter, the presiding

immigration judge should not order a change of venue without a

proper finding of good cause, as we have observed above.

Second, the immigration judge's order in this case focused upon the

applicant's lack of connections to the place where he was detained.

However, the question of where the applicant should be detained was

not at issue. The issue upon a motion to change venue is rather where

future hearings in the case shall take place. Accordingly, an order

changing venue in a given case does not require the Service to change

judge to change venue for good cause either upon motion by one of the parties or upon

his own authority, and notice to the other party was not specifically required.

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the place where the applicant is detained. The place of detention is a

subject over which the immigration judge has no authority in an

exclusion proceeding. 4

Third, there was no evidence in this case that the applicant actually

resided in Los Angeles, contrary to what the immigration judge's form

order suggests. Moreover, while the factors commonly associated with

the applicant's place of residence may be relevant to the question of

proper venue, the mere fact that an applicant allegedly resides or

wishes to reside in another city, without a showing of other significant

factors associated with such residence, is insufficient cause to outweigh

the Service's opposition to a motion for change of venue, particularly

where the Service has demonstrated that it would be prejudiced by

such a change. See Matter of Rivera, supra; cf. Chlomos v. INS, 516

F.2d 310 (3d Cir. 1975) (deportation proceedings; residence already

established prior to arrest).

Finally, there is no specific evidence in this case that the applicant

himself would be prejudiced by proceeding with his hearing in

Phoenix, Arizona. He argued, through counsel, that his counsel of

choice and an interpreter would not be available in Phoenix. However,

there is no evidence of any longstanding attorney-client relationship

here, nor is there any persuasive evidence that the applicant could not

have retained counsel and made arrangements for an interpreter to

assist him in Phoenix. As the Service points out, Phoenix is a

metropolitan area of about 2 million residents, with an experienced

immigration bar. The Government is not required to accommodate

the applicant's choice of a distant attorney and his acquisition of an

interpreter by changing venue at considerable expense, especially

where there is no showing that local counsel is unavailable or that an

interpreter cannot otherwise be obtained. See section 292 of the Act, 8

U.S.C. § 1362 (1988) (alien may select attorney of choice, but at no

expense to the Government); see also El Rescate Legal Services v.

EOIR, 959 F.2d 742 (9th Cir. 1992) (interpreters); Sasso v. Milhollan,

735 F. Supp. 1045 (S.D. Fla. 1990). We note that for purposes of the

4 The immigration judge can change the venue of the hearing in cases where the alien

is detained. Matter of Dobere, 20 I&N Dec. 188 (B1A 1990_ However, the place of

detention is a separate question entrusted to the sound discretion of the Service, the

agency explicitly charged with the statutory duty to control and guard the boundaries of

the United States. See section 103(a) of the Act, 8 U.S.C. § 1103(a) (1988); see also 8

C.F.R. §§ 212.5, 235.3(b) (1992); Sasso v. Milhollan, 735 F. Supp. 1045 (S.D. Fla. 1990);

Committee of Central American Refugees v. INS, 682 F. Supp- 1055 (N.D. Cal. 1988);

Ledesma-Valdez v. Sava, 604 F. Supp. 675 (S.D.N.Y. 1985); Louis v. Nelson, 544 F.

Supp. 973, 983-84 n.27 (S.D. Fla. 1982), rev'd in part on other grounds, sub nom. Jean v.

Nelson, 727 F.2d 957 (11th Cir. 1984), aff'd, 472 U.S. 846 (1985).

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hearing itself, interpreters are provided by the Government. See

Matter of ExtIvs, 18 I&N Dec. 276 (BIA 1982).

In view of the foregoing, the interlocutory appeal will be sustained.

ORDER:

The appeal by the Immigration and Naturalization

Service is sustained, and the order of the immigration judge is vacated.

FURTHER ORDER

The record is remanded to the immi-

gration judge.

485