DOBERE

Interim Decision #3133




                         MATTER OF DOBERE
                          In Exclusion Proceedings
                                  A-18158429
                     Decided by Board April 18, 1990

   Under the Rules of Procedure for Proceedings before Immigration Judges, immigration judges have the authority to change venue in exclusion proceedings even in cases
where the applicant is being held in custody. Matter ofAlphonse, 

 (BIA
1981), superseded.
EXCLUDABLE: Act of 1952—Sec. 212(a)(23) [

(a)(23)]—Convicted of
                         controlled substance violation
ON BEHALF OF APPLICANT:                            ON BEHALF OF SERVICE:
 Alexander Schonfeld, Esquire                       David M. Dixon
 299 Broadway, Suite 1600                           Appellate Counsel
 New York, New York 10007
                                                      Harris L. Leatherwood
                                                      General Attorney

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


   In a decision dated November 11, 1989,' an immigration judge
granted the applicant's motion to change the venue of his exclusion
proceedings from Oakdale, Louisiana, to New York City. The
Immigration and Naturalization Service filed an appeal from that
decision. The request for oral argument before the Board of Immigration Appeals will be denied. The appeal will be dismissed.
   The decision which the Service seeks to have reviewed is interlocutory in nature. This Board does not ordinarily entertain interlocutory
appeals. See Matter of Ruiz Campuzano, 

 (BIA 1979);
Matter of Ku, 

 (BIA 1976); Matter of Sacco, 

 (BIA 1974). However, we have on occasion ruled on the
merits of interlocutory appeals where we found it necessary, for
example, to address important jurisdictional questions regarding the
administration of the immigration laws. See Matter of Garcia Reyes,
   1 The immigration judge's decision is for some reason dated November 22, 1989, but
it apparently was in fact issued on November 11, 1989.

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 (BIA 1988), and cases cited therein. We have
concluded that it is appropriate for us to rule on this interlocutory
appeal.
   These exclusion proceedings were initiated in New York City a
number of years ago. Hearings were held in New York, at which the
applicant was found excludable and allowed to apply for relief under
section 212(c) of the Immigration and Nationality Act, 8 U.S.C.
1182(c) (1988). On September 9, 1988, the proceedings were administratively closed by the immigration judge in New York. On July 27,
1989, the Service moved to recalendar the case and to change venue to
Oakdale. On September 29, 1989, the immigration judge in New York
granted the Service motion to change venue. Thereafter, the applicant
applied to the immigration judge in Oakdale for a change of venue
back to New York City. The Oakdale immigration judge granted this
motion on November 11, 1989, and this Service interlocutory appeal
followed. According to a memorandum filed by the Service Appellate
Counsel, the New York immigration judge, following the transfer of
the case back to him, administratively closed the case again, "when the
alien did not appear and the Service had no file." The applicant
remains in custody in Oakdale.
   In its appeal, the Service contends that the immigration judge in
Oakdale was without jurisdiction to change the venue of this case
because the applicant was detained at the time the immigration judge
made the venue ruling. The Service relies for its position on Matter of
Alphonse, 

 (BIA 1981). In Matter of Alphonse, we did
indeed hold that an immigration judge lacks jurisdiction to consider a
motion to change venue where an alien is detained by the Service
pending exclusion proceedings. To allow an immigration judge to rule
on such a motion, we concluded, would infringe upon the district
director's exclusive power to decide matters of detention and parole.
   Since the time Matter of Alphonse was decided in 1981, Rules of
Procedure for Proceedings before Immigration Judges have been
promulgated. The rules encompass questions of venue. The power
given to immigration judges to change venue is broad and general. The
applicable regulation provides: "The immigration judge, for good
cause, may change venue on motion by one of the parties, or upon his
or her own authority after the charging document has been filed with
the Office of the Immigration Judge." 

(b) (1989). The
term "charging document" is defined in the rules of court as "the
written instrument which initiates a proceeding before an immigration
judge including an Order to Show Cause, a Notice to Applicant for
Admission Detained for Hearing before Immigration Judge,        and a
Notice of Intention to Rescind and Request for Hearing by Alien."

 (1989) (emphasis added). Since the venue regulation

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does not specifically exclude exclusion proceedings from its purview, it
applies to exclusion as well as deportation cases. 

(1989). 2 The comments provided at the time the rules of court were
promulgated state, "This rule [Rule 3.19] makes uniform the immigration judge's authority to change venue in all proceedings." 

 (1987). The rules of court became effective on March 2,
 1987, and the rule regarding venue clearly supersedes our earlier
decision in Matter of Alphonse, supra. Thus, the immigration judge
had the authority to change the venue of this exclusion case, despite
the fact that the applicant is detained pending exclusion proceedings.
   The merits of the immigration judge's venue ruling in this case have
not been raised by the Service in its appeal, and we will not consider
that issue. Because we find that the immigration judge did have
jurisdiction to consider the applicant's motion to change venue, the
Service's appeal will be dismissed.
   ORDER:          The appeal is dismissed.




  2 Bond proceedings are specifically excluded from the venue regulation. 

(a) (1989).

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