SEREN

Interim Decision #2474




                                MATTER OF SEREN

                            In Deportation Proceedings
                                      A-18125976

                     Decided by Board February 25, 1976
(1) Prior to the commencement of deportation proceedings, the district director may
  determine where the hearing should be held. Once jurisdiction has lodged with the
  immigration judge, the district director lacks the power to change, or deny a request to
  change, the place of hearing. Thus, the district director's letter of January 22, 1976,
  denying respondent's request for a change of venue subsequent to the commencement of
  the deportat on hearing, was of no effect.
(2) Since the authority of the Immigration judge under 8 CFR 242.8(a) to take such action as
  "may be app:mPriate to the disposition of the case" encompasses the power to rule on a
  motion to change venue, respondent's motion for a change of venue, made subsequent to
  the commencement of hearing in the instant deportation proceedings, should have been
  heard by the immigration judge and the venue question decided on its merits.
CrrAnOn:
  Order: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251 (a)(4)]—Convicted of a crime
                        involving moral turpitude—sentenced to confinement for a
                        year or more.
ON BEHALF OF RESPONDENT:                               ON BEHALF OF SERVICE:
 Shyleur Barrack, Esquire                                George Indelicato
 The Legal Aid Society                                   Appellate Trial Attorney
 Prisoners Ci Al Legal Assistance Unit
 11 Park Place
 New York, New York 10007


   On January 27, 1976 the respondent submitted a Notice of Appeal,
Form I-290A. Although it is not entirely clear, it appears that the
respondent .3y his appeal seeks to review both a decision of the district
director denying a request for a change of venue and an interlocutory
decision of the immigration judge ruling that he did not have jurisdiction
to consider a motion to change venue at a deportation hearing. Both
decisions were incorrect with respect to the matter of jurisdiction.
  This Board does not ordinarily entertain appeals from interlocutory
decisions of immigration judges. Matter of Sacco, 

(BIA 1074). However, there is a significant issue involved in this ease
concerning the jurisdictional powers of the immigration judge and the
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 District Director. Therefore, we shall certify this record to us pursuant
to 8 CFR 3.1(c).
   On July 23, 1975, the respondent was served with an order to show
cause while he was incarcerated at a New York State correctional
facility in Dannemora, New York. Upon release by the state authorities
on January 2, 1976, the respondent was taken into custody by the
Immigration and Naturalization Service and removed to Buffalo, New
York. On January 5, 1976, the hearing was commenced before the
immigration judge. The hearing was then adjourned to give the respondent an opportunity to obtain counsel.
   On January 20, 1976; the district director received the respondent's
motion for a change of venue. Although it is not clear when the motion
was made, it appears to have been made subsequent to the commencement of the hearing before the immigration judge on January 5, 1976. In
a letter dated January 22, 1976, the district director purported to deny
the request. Counsel for respondent claims the district director's letter
was received January 26, 1976.
   On January 23, 1976, the hearing before the immigration judge was
reconvened. The respondent was represented by an attorney from the
Legal Aid Society of Buffalo. Counsel for the respondent renewed the
motion for a change of venue to New York City. A lengthy discussion
between counsel and the immigration judge ensued. The immigration
judge ruled that he did not have jurisdiction to order a change of venue
and refused to consider any evidence relating to the motion submitted
by the respondent. It appears that prior to his incarceration, the respondent resided in New York City. His counsel of record is also located
there.
   The immigration judge granted an adjournment of the hearing until
January 29, 1976. Although it is not entirely clear from the record, it
appears that the immigration judge granted the adjournment for the
purpose of allowing the respondent to consider how he wished to proceed to obtain a review of the immigiation judge's decision with respect
to the issue of venue. The respondent submitted his appeal and the
record was forwarded to this Board.
   The place of the hearing will initially be set in the order to show cause.
Thus, prior to the commencement of the proceeding, the district director may determine where the hearing should be held. 8 CFR 242.8(a)
grants the immigration judge the power to take such action as "may be
appropriate to the disposition of the case." Encompassed within that
grant of authority is the power to rule on a motion to change venue.
Matter of K. 

 (BIA 1953). Matters involving procedural due process in a hearing before an immigration judge, are under
his jurisdiction. Venue is, of course, such a matter. Cf. Chlomos v. INS,

 (C.A. 3, 1975); La Franca v. INS, 413 F.24 636 (C.A. 2,

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1969). Once such jurisdiction has lodged with the immigration judge, the
district director lacks the power to change, or deny a request to change,
the place of hearing.
   The letter from the district director of January 22, 1976 denying the
request for change of venue therefore was of no effect. The immigration
judge should have heard the motion and decided the venue question on
its merits in the sound exercise of his discretion. Accordingly, we shall
remand the record to the immigration judge for further proceedings.
   Counsel fox the respondent has requested oral argument. We have
certified this case to ourselves solely to resolve the jurisdictional issue,
and not to consider the merits of the motion. In the posture in which this
case now stands before us, we have disposed of the matter favorably to
the respondent, who appears to remain in detention. Oral argument
would appear to serve no useful purpose nor would its denial prejudice
the respondent. Accordingly, oral argument will not be scheduled in this
matter. Cf. Matter of Andrade, 14 I. & N. Dee. 651 (BIA 1974).
  ORDER: ''he record is remanded to the immigration judge for
further proceedings.




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