WADAS

Interim Decision #2785




                                 MATTER OF WADAS

                             In Exclusion Proceedings

                                      A-24000645
                       Decided by Board March 14, 1980

 (t) In exclusion proceedings, under S C.F.R. 236.2(b), the immigration judge has the
     authority to regulate the course of the hearing, and where a determination of venue is
     essential to such regulation, he may in certain situations hear a motion to change
    venue without infringing on the general parole jurisdiction of the District Director.
(2) Where an applicant for admission has been paroled into the United States by the
    District Director and has been granted permission to continue his journey outside the
    district, his motion to the immigration judge in exclusion proceedings to change venue
    is subject to considerations similar to those present in venue motions in deportation
    proceedings.
.(a) Where the applicant for admission was paroled into the United States, allowed to
    journey outside New York, the district of the port of entry, where he had never
    resided, and where the possible excludable acts had occurred in, and possible witnesses
    were located in Massachusetts, an interpreter is required, and two previous hearings
    failed to resolve the applicant's excludability, it was appropriate for the immigration
    judge to hear a motion to change venue to Boston.
EXCLUDABLE:
 ,Order; Act of 1952 — Section 212(a)(20) [8 U.S.C. 1182(a)(20)] — Immigrant — not in
                          possession of a valid visa
QN 6EHALF OF APPLICANT: Pro se
      Milhollan, Chairman; Manistio, Appleman, Maguire, and Farb, Board Members


   The Service has filed an interlocutory appeal from a decision of
Immigration Judge John Ruggiero, granting a change in venue from
IsTpw York to Boston. It is the Service's contention that the immigration judge lacks jurisdiction to change venue in exclusion proceedings.
Although we do not normally hear appeals from interlocutory decisions, in this case we will make an exception because the issue to be
considered is important, and unlikely to be resolved in a more satisfactory context. Cf. Matter of Sacco,

 (BIA 1974); Matter f
rang 

 (BIA 1974). The appeal will be dismissed.
   At the exclusion hearing before the immigration judge on July 19,
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1979, there was testimony presented by the applicant for admission to
the effect that the designation of New York as the location of the
exclusion hearing was inappropriate. The applicant had applied for
admission at New York, had been paroled into the United States by the
District Director, and had been granted permission to continue his
journey outside the New York district of the Service. Based on the
information adduced at the hearing, the immigration judge concluded
that the exclusion hearing would more properly be heard in Boston,
and he ordered the change in venue to that city.
  The Service on appeal contends that the immigration judge has no
jurisdiction to change the venue in exclusion proceedings where, as
here, the applicant has been paroled into the United States and allowed to travel outside the district in which he made his application
for admission. It cites section 212(d)(5) for the proposition that the
Attorney General may parole aliens into the United States under such
conditions as he may prescribe, and that parole is not an admission for
purposes of the immigration laws. The Service also cites 8 C.F.R.
212.5(a) to show that the discretion granted to the Attorney General
under section 212(d)(5) of the Act has been delegated to the District
Director in charge of a port of entry. In addition, the Service relies on
Matter of Lepofsky, 14 I&N Dee- 718 (BIA. 1974), to establish its
contention that only the District Director may parole aliens into the
United States. Lepofsky involved a case where the immigration judge
allowed two applicants for admission to withdraw their application for
admission and granted them conditional "permission" to remain in the
United States for one month. The Board held that this order was an
infringement on the parole power of the District Director.
  Finally, the Service cites Conceiro v. Marks, 360 P.Supp. 454 (S.D.
N.Y. 1973) for the authority that the Board has consistently held that
the District Director alone may parole aliens into the United States.
ronceiro concerned a Cuban refugee refused parole by the District
Director who brought habeas corpus proceedings in the District Court.
It was noted by the court that the Board had adopted the position that
the discretion to parole lay with the District Director.
   The Service concedes that im.migration judges in deportation
proceedings do have the authority to decide changes in venue. Matter
of Seren, Interim Decision 2474 (BIA 1976). It contends, though, that
Seren is distinguishable on at least two grounds. The first is that the
immigration judge in deportation proceedings has jurisdiction over
questions involving procedural due process, and that venue is such a
question. Secondly, it asserts that an alien in deportation proceedings
has made an entry which places him within the normal Constitutional
protections, while an applicant for admission who has been paroled
into the United States "has no legal immigration status".
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  The last point that the Service makes is that even if the immigration
judge had authority to change venue, the applicant had not established
that this change was necessary.
  After considering the points raised by the Service, we have concluded that change of venue in exclusion proceedings, where the applicant has been paroled in and allowed to travel outside the district
where he applied for admission, is governed by considerations similar
to those present in deportation proceedings. Although the situation
may appear to the Service to present a conflict between the parole
powers of the District Director, and the jurisdiction which vests in the
immigration judge at the point where the exclusion hearing begins, we
view the situation in some what different terms. In a deportation
proceeding, the immigration judge has the jurisdiction to consider
venue because "8 C.F.R. 242.8 grants the immigration judge the power
to take such action as "may be appropriate to the disposition of the
case". Matter of Seren, supra. We see no reason that the same considerations should not hold true in this exclusion proceeding. 8 C.F.R. 236.1,
in discussing exclusion proceedings, states in almost identical words
that:
 "Subject to any specific limitation prescribed by the Act and this chapter, immigration judges shall also exercise the discretion and authority conferred upon the Attorney General by the Act as is appropriate and necessary for the disposition of such
 cases."
  In addition, 8 C.F.R. 236.2 delineates the rights and procedures to be
followed in exclusion proceedings in terms very similar to those in
deportation proceedings. This indicates that the distinction that the
Service wishes to draw between deportation and exclusion proceedings
on procedural grounds is not well founded_ It also shows that the
asserted distinction between Constitutional rights in deportation
proceedings as opposed to those accorded in exclusion proceedings, is
in fact almost irrelevant. Whatever differences in treatment may be
justified on Constitutional grounds, the regulations provide protections to the aliens which are quite similar.
   In addition, as a matter of practical consideration, the immigration
judge is in a good position to hear arguments on the issue of venue and
determine whether or not a hearing could better be conducted in a
different Service district. The exclusion hearing would provide a full
opportunity for all sides of the matter to be heard, and the issue could
be promptly resolved.
  We do not find this procedure to infringe on the authority of the
District Director to set the conditions for parole. Unlike Lepofsky,
supra, where there was no express or implied authority for the immigration judge to find an alien excludable and then allow him to
remain, a change in venue is a natural adjunct of the immigration
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judge's authority to conduct exclusion hearings under 8 C.F.R. 236.1
Such jurisdiction does not affect the District Director's jurisdiction to
set parole, or the conditions to be met by the parolee. It also does not
affect the District Director's authority to detain an applicant for
admission; nor does it in fringe on his authority to limit the applicant's
enlargement on parole to the vicinity of the port of entry. Here, the
applicant was paroled into the United States and allowed to travel
outside the district of the port of entry. In such a case, where it appears
with good reason that another venue should be designated after the
hearing commences, the immigration judge has the authority to hear a
motion to change venue, weigh the factors involved, and to make a new
designation if he considers it necessary. This procedure will enable
him to "regulate the course of the hearing" as provided in 8 C.F.R.
236.2(b).
  In this case, the District Director designated New York as the place
of the hearing, and he contends that a change in venue is not justified.
The transcript shows that the applicant has never resided in New
York. It also indicates that the excludable acts occurred in, and the
possible witnesses are located in Massachusetts. In addition, the applicant requires an interpreter, and of which there have already been two,
with no resolution of the charge of excludability. We agree in these
circumstances that the immigration judge properly found that he had
authority to consider the question of venue once the hearing had
commenced, and that a change in venue was appropriate in the circumstances. The appeal is accordingly dismissed.
  ORDER, The appeal is dismissed.




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