Interim Decision #2892
MATTER OF ALPHONSE, et al.
In Exclusion Proceedings
A-26006595
Decided by Board November 17, 1981
(1) An immigration judge lacks jurisdiction to consider a motion for a change of venue
where an alien is detained by the Immigration and Naturalization Service pending
exclusion proceedings notwithstanding the provision in 8 C.F.R. 236.1 granting immigration judges the power to take such actions "as is appropriate and necessary
for the disposition of such cases." Matter of Wades, 17 I&N Dec. 346 (BIA 1980)
distinguished.
(2) A change of venue issue may not be reviewed by an immigration judge in exclusion
proceedings in the case of a detained alien because such a review would necessarily
involve consideration of parole and detention matters which are exclusively within
the jurisdictional powers of the District Director. 8 C.F.R. 212.5(a), 233.1, and 235.3.
EXCLUDABLE:
Order. Act of 1952—Sec. 212(2)(20) [8 U.S.C. 1182(2)(20)1—No valid, unexpired immigrant visas or other valid entry documents
ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE:
Arthur C. Helton, Esquire James W. Grable
Mailman & Ruthizer, P.C. Chief Legal Officer
1290 Avenue of the Americas
New York, New York 10104
BY: Milhollan, Chairman; Maniatis, Maguire, Morris, and Vacca, Board Members
On September 9, 1981, the immigration judge considered and denied
the applicants' motion for a change of venue. Both the Service and the
applicants submitted interlocutory appeals. The Service appeal will be
sustained and the applicants' appeal will be dismissed.
The applicants are natives and citizens of Haiti who arrived in the
United States on July 5, 1981, near Miami, Florida. They were served
with notice that they may be excludable pursuant to section 212(a)(20) of
the Immigration and Nationality Act, 8 U.S.C. 1182(a)(20). They were
held in detention pending conclusion of their exclusion proceedings and
resolution of their application for asylum. These applicants were transferred to the. Bureau of Prisons' detention facility in Camp Ray Brook,
Plattsburg, New York, as part of a program to reduce overcrowding at
the Krome Service detention center in Miami, Florida.
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In an August 11, 1981, exclusion hearing, the immigration judge permitted the applicants' counsel to enter a special appearance for purposes
of submitting a motion to change the venue of the exclusion proceedings
from. Camp Ray Brook, in Plattsburg, New York, to New York City,
Miami, or any other large population center. The immigration judge
ruled that he had jurisdiction to consider the motion but denied it after
concluding that the applicants had failed to establish that such a change
of venue was warranted. Interlocutory appeals were submitted by both
parties.
The Service contends that the immigration judge did not have. authority to consider the applicants' motion for a change of venue because the
applicants were still detained and, therefore, within the sole jurisdiction
of the District Director. The applicants submit that a change of venue
was warranted. We will entertain this interlocutory appeal because it
raises an important issue in the administration of the immigration laws
concerning the jurisdictional powers of immigration judges and district
directors.. Matter of Ruiz-Campuzano, 17 I&N Dec. 108 (BIA 1979).
Sections 233 and 226 of the Act, 8 US_ C_ 1728 and 1225, prescribe
that an alien arriving in the United States may be detained pending
resolution of his admissibility. See Shaughnessy v. Mezei,
345 U.S. 206
(1953): United States ex rel. Russo v. Thompson,
188 F.2d 244 (2 Cir.
1951), cert. denied,
341 U.S. 954 (1951). The place of detention is determined by the immigration officer at the port of entry pursuant to 8
C.F.R. 233.1. Sec generally - lA Gordon and Rosenfield, Immigration
Law and Procedure, section 3.17(b) (1980).
The immigration judge relied on two precedent decisions by this Board
as authority for his conclusion that he had jurisdiction to entertain the
motion tc, change venue. In Matter of Seren,
15 I&N Dec. 590 (BIA
1976), we interpreted the language hi 8 C.F.R. 242.8(a) that grants
immigration judges the power to take such action as "may be appropriate to the disposition of the case" as including the power t9 consider
questions of change of venue in deportation proceedings. In 'Matter of
Wadas,
17 I&N Dec. 346 (BIA 1980), we read similar langiiage in 8
C. F.R. 236.1 as including within it a similar power by immigration
judges to consider applications for a change of venue in exclusion
proceedings. However, in Matter of Wallas, supra, we also specifically
stated the following regarding venue jurisdiction:
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 infringe 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. Here, the applicant was paroled into the United States and allowed
to travel outside the district of the port of entry. (Emphasis supplied.) In such a coze,
where it appears with good reason that another venue should be designated after the
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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. The procedure will enable him to "regulate the course of the hearing" as
provided in 8 C.F.R. 236.2(b).
Unlike the alien in Wadas, the applicants here have not been paroled
by the District Director and remain detained. When aliens are detained,
change of venue questions involve more than whether the exclusion
hearing can be better conducted in a different Service district. Ina case
such as this, ordering the change of venue for all of the 36 applicants
here involves also the allocation of suitable detention facilities to hold
these applicants pending conclusion of their exclusion proceedings.
8 C.F.R. 242.2(b) prescribes the authority for immigration judges to
review the District Director's detention decisions in deportation cases.
There is no similar provision regarding detained aliens in exclusion
proceedings. Section 212(d)(5) of the Act, 8 U.S.C. 1182(d)(5), prescribes
the authority for the Attorney General to parole aliens into the United
States temporarily pending resolution of their admissibility. Such parole
jurisdiction has been delegated exclusively to the District Director's
discretion pursuant to 8 c.F.n. 212.5(a). Matter of Lepofekg, 14 I&N
Dec. 718 (BIA 1974); Matter of Conceiro,
14 I&N Dec. 278 (BIA 1973),
aff'd Conceiro v. Marks,
360 F.Supp. 454 (S.D.N.Y. 1973). Operations
Instruction 233.1 specifies that transferring an alien detained pending
exclusion proceedings requires the District Director's permission. While
not binding on this Board, the prescriptions of the Operations Instructions are often persuasive. See Matter of Garcia,
16 I&N Dec. 653 (BIA
1978).
We conclude that an immigration judge lacks jurisdiction to consider a
motion for the change of venue of an alien detained pending exclusion
proceedings. Such jurisdiction would interfere with the District Director's
sole jurisdiction to detain aliens in exclusion proceedings pursuant to 8
C.F. R. 233.1 and 235.3 or parole such aliens pursuant to 8 C.F.R.
212.5(a). We find that the procedures prescribed in deportation cases by
8 C.F.R. 242.2(b) are not available in exclusion proceedings. Consequently, we find that the regulations do not contemplate a review of.
detention decisions by immigration judges by way of a motion to change
venue, despite the similarities between the language of 8 C.F.R. 236.1
and 242.8(a).
Therefore, our decision in Matter of Wadas, supra, is limited to situa-
' tions where the alien in exclusion proceedings has been paroled by the
District Director. Accordingly, there can be no interference with his
exclusive power to parole pursuant to 8 C.F.R. 212.5(a). The Service
appeal will be sustained.
Our decision sustaining the Service's appeal renders the applicant's
appeal from the denial of the motion to change venue moot, since we
conclude that the immigration judge lacks jurisdiction to grant such a
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motion. Therefore, the applicants' appeal will be dismissed.
ORDER The Service appeal will be sustained and the applicants'
appeal will be dismissed.
FURTHER ORDER: The record is remanded to the immigration judge for further proceedings consistent with the foregoing opinion.
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