RIVERA

Interim Decision #3072




                            MATTER OF RIVERA

                         In Deportation Proceedings

                                   A-23456046

                     Decided by Board August I, 1988

(1) The grant or denial of a change of venue motion is within the discretion of the
  immigration judge.
(2) Denial of the respondent's request to change venue from Puerto Rico, the place
  of his arrest, to New York, the place of his current residence, is upheld where the
  respondent has not shown how he would be prejudiced by holding the deportation
 hearing irk Puerto Rico, and the Immigration and Naturalization Service could be
 prejudiced by changing venue, since the only witnesses to his contested unlawful
 entry were in Puerto Rico.
CHARGE:
 Order: Act of 1952—Sec. 241(aX2) [

(aX2)]—Entered without inspection
ON BEHALF OF RESPONDENT:                          ON BEHALF OF SERVICE:
 Jan H. Brown, Esquire                             Hans Burgos
 Billet, Becker & Brown                            General Attorney
 37'7 Broadway, 8th Floor
 New York, New York 10013

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



  In a decision dated February 24, 1986, an immigration judge, following an in absentia hearing, found the respondent deportable
under section 241(a)(2) of the Immigration and Nationality Act, 

(a)(2) (1982), as an alien who entered the United States
without inspection by immigration officers. The respondent was ordered deported to the Dominican Republic. The respondent appealed. The appeal appears to be untimely. However, there is some
question as to when the respondent received the immigration
judge's decision. Neither the respondent nor the Immigration and
Naturalization Service has raised the issue of the timeliness of the
appeal. Under these circumstances, we have decided to take the
case on certification under 

(c) (1988)- The request for
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                                                      Interim Decision #3072

oral argument before the Board is denied and the appeal will be
dismissed.
  An Order to Show Cause, Notice of Hearing, and Warrant for
Arrest of Alien (Form I-221S) was issued against the respondent on
November 1, 1985. The order stated that the respondent's hearing
would be held in Hato Rey, Puerto Rico, at a time to be set. On
December 9, 1985, counsel for the respondent sought a change of
venue from Puerto Rico to New York City. On December 12, 1985,
the respondent was notified that his deportation hearing would be
held on February 24, 1986, in San Juan, Puerto Rico. On January
22, 1986, the immigration judge denied the respondent's request for
a venue change, stating that venue would not be changed from
Puerto Rico "until such time as the respondent's deportability is
settled on this record, relief to be sought is specified and good
cause for such change of venue is alleged." On February 7, 1986,
the respondent's counsel sent a motion to reopen and reconsider to
the immigration judge, again requesting a change of venue, and
stating why he believed venue should be changed. On February 19,
1986, the immigration judge denied the motion, noting that it was
received shortly before the scheduled hearing. The immigration
judge further stated that the issue of deportability, which was
being disputed, was best adjudicated where the arrest occurred.
Neither the respondent nor his counsel appeared for the hearing
on February 24, 1986. The immigration judge proceeded with the
hearing in absentia pursuant to section 242(b) of the Act, 

(b) (1982). 1 The Service submitted a Form 1-213 (Record of
Deportable Alien) to establish the respondent's deportability. The
immigration judge found the respondent deportable based on that
evidence.
  On appeal, counsel for the respondent argues that the denial of a
venue change was a denial of due process and that the immigration
judge's refusal to consider his motion to reconsider the denial of
the change of venue request was an abuse of discretion. He further
asserts that he did not receive the notice of denial until 1 day prior
to the scheduled hearing wad he did not then have an adequate opportunity to prepare for the hearing.
  The respondent was properly notified of the time and date of his
deportation hearing. Having received notice of the hearing, the respondent or his counsel was required to attend, or show reasonable
   Section 242(b) of the Act provides in pertinent part as follows:
   Lt any alien has been given a reasonable opportunity to be present at a proceeding under this section, and without reasonable cause fails or refuses to attend
   or remain in attendance at such proceeding, the special inquiry officer may proceed to a determination in like manner as if the alien were present.

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Interim Decision *3072

cause for the failure to attend. Matter of Patel, 

(BIA 1985), aff'd, Patel v. United States INS, 

 (5th Cir.
1986); Matter of Marallag 

 (BIA 1971). The fact
that the respondent requested a change of venue did not relieve
him of his obligation to appear at the hearing, prepared to go forward with the case. Matter of 

 The respondent could
not merely assume that the motion for a venue change would be
granted, or would result in a continuance. In this case, moreover,
the respondent was already aware that the immigration judge was
not inclined to change venue. Unless the immigration judge grants
a continuance, for change of venue or other reasons, the alien remains obligated to appear at the appointed date and time. Matter
of 

  We further find no error in the immigration judge's denial of a
venue change. The grant or denial of a change of venue motion is
within the discretion of the immigration judge. The immigration
judge's decision to hold the hearing on deportability in Puerto Rico,
where the respondent was arrested, and where the arresting officers would be available to testify, if necessary, was a reasonable
one. The respondent has not shown. that he was materially prejudiced by holding the hearing on deportability in Puerto Rico rather
than New York. On the contrary, it appears in this case that there
could have been prejudice to the Service in holding the hearing in
New York. The respondent had indicated that he would deny the
entry without inspection charge. The only witnesses regarding his
entry were in Puerto Rico, and it would have been a considerable
burden on the Service to have to transport the witnesses to New
York. The respondent cites La B-anca v. INS, 

 (2d Cir.
1969), for his contention that the hearing should. have been held in
New York. However, La Franca clearly states that the "better procedure" is generally to place the venue of a case "in the district of
the alien's residence or place of arrest." 

 at 689 n.9 (emphasis
added). The respondent also relies on Chlontos v. United States Department of Justice, INS, 

 (3d Cir. 1975). There, the
court stated in a footnote that a hearing in New Jersey, the place
of the respondent's permanent residence, rather than in Florida,
where he was arrested, "would be appropriate." 

 at 312 n.4.
However, in Chlomos, there was no countervailing Government interest in holding the hearing in Florida. Here, where witnesses as
to the disputed unlawful entry are in Puerto Rico, there clearly is.
We see no reason to disturb the immigration judge's venue ruling
in this case.

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  The respondent has not contested his deportability on appeal.
Having concluded that the immigration judge's handling of this
case was reasonable, we find that the appeal should be dismissed.
  ORDER: The appeal is dismissed.




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