Interim Decision #2728
MATTER OF RUIZ-CAMPUZANO
In Deportation Proceedings
A-21087873
Decided by Board September 27, 1979
(1) Although 8 C.F.R. 3.1(b)(2) does not, per se, preclude the Board's consideration of
appeals from interlocutory decisions of immigration judges, as a practical matter the
Board has construed the regulations as contemplating only appeals from final decisions. Matter of Sacco, 15 I&N Dec. 109 (BIA 1974).
(2) Once a deportation hearing has begun, questions regarding venue are within the
jurisdiction of the immigration judge and nut the District Director. Matter of Soren,
15 I&N Dec. 590 (BIA 1976).
(3) While the Board has entertained an interlocutory appeal where there was a significant issue concerning the jurisdiction of an immigration judge, the question of
whether there should be a change of venue, in any given case, is nut such on issue.
(4) Where the respondent moved to change venue because her United States citizen
child, her prospective husband and mother-in-law and counsel retained on lier behalf
were all situated in Florida and the immigration judge denied the motion and
adjourned the hearing without entering a final order of deportability, the Board would
not entertain the appeal since at that particular stage of the case, determination of the
venue question was within the jurisdiction of the immigration judge. See Matter of
Fong,
14 I&N Dec. 670 (BIA 1974).
CHARGE:
Order: Aet of 1952 — Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]-
Nonimmigrant—remained longer than permitted
Lodged: Sec. 241(a)(11) [8 U.S.G. 1251(a)(11)]—
Convicted of violation of law relating to illicit possession and sale of a
controlled substance, to wit, cocaine, in violation of section 220_39 of New
York Penal Law
ON BEHALF OF RESPONDENT: Annette Flstein, Esquire
The Legal Aid Society
11 Park Place
New York New York 10007
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire and Farb, Board Members
The respondent appeals from a decision of an immigration Judge
dated July 2, 1979, denying her motion to change venue. The appeal will
be dismissed.
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Interim Decision #2728
The respondent is a female alien, allegedly a native and citizen of
Colombia. On May 14, 1976, the Service issued an Order to Show Cause
alleging that the respondent had been admitted to the United States in
May 1970 as a nonimmigrant for pleasure authorized to remain until
November 1970, that she failed to depart and was therefore deportable
under section 241(a)(2) of the Immigration and Nationality Act, 8
U.S.C. 1251(a)(2). On June 28, 1979, the respondent, while incarcerated
in a New York detention facility, was served with an Additional
Charge of Deportability (Form 1-261) alleging her deportability under
section 241(a)(11) of the Act, 8 U.S.C. 1251(a)(11), as an alien convicted
of the sale of a controlled substance, to wit: cocaine. The respondent
appears to remain in detention.
At the deportation hearing which ensued, counsel for the respondent
did not plead to the Order to Show Cause and instead requested a
change of venue to Miami, Florida. The reasons given for the request
were that the respondent's United States citizen child, her prospective
husband and mother-in-law and counsel retained on her behalf were
all situated in Florida. The immigration judge denied the motion for a
change of venue and adjourned the hearing without entering a final
order of deportability. The denial of the motion was based upon his
finding that the petitioner had resided in New York for 5 years prior to
her incarceration. The immigration judge found further that the respondent had failed to offer any evidence to support the motion and
failed to state whether any witnesses would be called at the deportation hearing. Although it is not entirely clear from the record, it
appears that the immigration judge adjourned the hearing to enable
the respondent to appear in a bond redetermination hearing before
another immigration judge.'
In the instant case, the decision sought to be reviewed is interlocutory. The regulations defining this Board's jurisdiction permit us to
review "decisions of [immigration judges] in deportation cases," S
C.F.R. 3.1(b)(2). The regulations do not, per se, preclude our consideration of appeals from interlocutory decisions of immigration judges. As
a practical matter however, we have construed the regulations as
contemplating only appeals from final decisions. Matter of Sacco, 15
I&N Dec. 109 (BIA 1974). To permit piecemeal review of interlocutory
orders of an immigration judge at successive stages of a deportation
proceeding before final decision would only open the door to obfuscation and delay. As a general rule, therefore, this Board does not
entertain appeals from interlocutory decisions of immigration judges.
' The record indicates that the bond hearing was adjourned because the respondent's
prospective husband, who was scheduled to testify at the bond hearing, suffered an
epileptic seizure en route to the hearing.
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Interim Decision #2728
Matter of Seren, 15 I&N Dec. 590 (BIA 1976).
On two prior occasions however, we reviewed the interlocutory
decisions of immigration judges in cases which raised questions
regarding the bounds of authority of immigration judges. See Matter
of Seren, supra; Matter of ong,
14 I&N Dec. 670 (BIA 1974). Matter of
Seren involved an appeal from an interlocutory decision of an immigration judge ruling that the did not have jurisdiction to consider a
motion to change venue at a deportation hearing. Although no final
order of deportability had been entered in that case, we took the case
on certification in view of the significance of the question concerning
the jurisdictional powers of immigration judges. We held there that
once a deportation hearing is commenced, questions regarding venue
are within the jurisdiction of the immigration judge and not the
District Director.
In Fong, supra, an immigration judge adjourned a deportation hearing indefinitely, pending a definitive decision on the availability of
relief under section 241(f) of the Act, 8 U.S.C. 1251(0. 2 In reviewing the
immigration judge's order we stated (at p. 671), "The order entered by
the immigration judge in this case though interlocutory in form, is farreaching in effect and raises an important issue in the administration
of the immigration laws. The question is presented in a setting which
gives it sufficient finality to warrant decision by us at this time. . In
essence, the question is one of sound administration rather than law."
The same cannot be said of the case before us. The question presented
here requires a determination based on the substantive elements of
venue, rather than one based on the administration of the immigration
laws. At this particular stage of the case, such a determination is
within the jurisdiction of the immigration judge. See Matter of Seren,
supra. We do not think that the circumstances of this case warrant an
intrusion of that jurisdiction.
Based on the foregoing, we conclude that we lack jurisdiction to
adjudicate this appeal. The appeal, therefore, must be dismissed.
ORDER* The appeal is dismissed.
The immigration judge in that case pointed out that 250 cases involving the same
issue had been held in abeyance.
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