RAHMAN

Interim Decision #3174




                          MATTER OF RAHMAN

                            In Exclusion Proceedings

                                     A-70105032

                      Decided by Board May 12, 1992

(I) An immigration judge's discretion to change venue in exclusion and deportation
  proceedings is subject to the existence of good cause for such a change, and good cause
   is determined by balancing the relevant factors, including administrative convenience,
  expeditious treatment of the case, location of witnesses, cost of transporting witnesses
  or evidence to a new location, and factors commonly associated with the alien's place
  of residence.
(2) While factors commonly associated with an applicant's place of residence are
  relevant to the question of proper venue, the mere fact that an applicant in exclusion
  proceedings allegedly resides or wishes to reside in another city, without a showing of
  other significant factors associated with such residence, is insufficient cause to
  outweigh the Immigration and Naturalization Service's opposition to a motion for
  change of venue, particularly where the Service has demonstrated that it would be
  prejudiced by such a change.
(3) The Government is not required to accommodate the applicant's choice of a distant
  attorney and his acquisition of an interpreter by changing venue at considerable
  expense, especially where there is no showing that local counsel is unavailable or that
  an interpreter cannot otherwise be obtained.
(4) An immigration judge's order changing the venue of the hearing dues nut necessarily
  affect the place where the alien may be detained, because an immigration judge has no
  authority over the place of detention.
(5) An immigration judge may grant a change of venue only upon motion by one of the
  parties and only after the other party has been given notice and an opportunity to
  respond.
EXCLUDABLE: Act of 1952—Sec. 212(a)(5)(A)(i) [

(a)(5)(A)(i)]—No
                                  valid labor certification

                               Sec. 212(a)(6)(C)(i) [

(a)(6)(C)(i)]—
                                 Fraud or willful misrepresentation of a material fact
                               Sec. 212(a)(7)(A)(i)(1) [

(a)(7)(A)(i)(1)]—
                                 No valid immigrant visa
ON BEHALF OF APPLICANT:                               ON BEHALF OF SERVICE:
  David L. Amkraut, Esquire                              Dean A. LeVay
  201 North Figueroa Street, Suite 700                   District Counsel
  Los Angeles, California 90012                          David M. Dixon
                                                         Appellate Counsel

                                          4R(1
                                                             Interim Decision #3174

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



   On November 7, 1991, an immigration judge ordered that venue in
this case be changed from Phoenix, Arizona, to Los Angeles, California. The Immigration and Naturalization Service has appealed.' The
appeal will be sustained, and the record will be remanded to the
immigration judge.
   This appeal is interlocutory. In order to avoid a piecemeal approach
to the many issues that may arise in the course of an exclusion or
deportation proceeding, 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 an interlocutory appeal where we deemed it
necessary to address important jurisdictional questions regarding the
administration of the immigration laws, or to correct recurring
problems in the handling of cases by immigration judges. See, e.g.,
Matter of Guevara, 

 (BIA 1990, 1991), and cases cited
therein. In the instant case, the Service has shown the existence of
many similar cases involving a recurring problem in the handling of
certain motions to change venue in exclusion cases. We find consideration of this appeal appropriate.
   The applicant in this case arrived at a port of entry to the United
States in Los Angeles, California, on September 7, 1991, with an
altered passport. He was issued a charging document, the Notice to
Applicant for Admission Detained for Hearing Before Immigration
Judge (Form 1-122), alleging that he had no valid entry documents,
that he had committed fraud in an attempt to procure entry, and that
he intended to enter the United States to perform labor without proper
authorization.
   In the judgment of the district director, there was insufficient
detention space available to detain the applicant in the Los Angeles
area. Therefore, the Service transferred the applicant and a number of
others to a detention facility in Florence, Arizona, and filed the
charging document with the Office of the Immigration Judge in
Phoenix, Arizona.
   Later, the applicant, through counsel, filed a motion to change
venue to Los Angeles. The motion stated that the applicant's counsel
of choice, his witnesses, and an interpreter would be available in Los
Angeles, but not in Arizona. However, no witnesses were specified, nor

  I The Service's request to consolidate the appeal with seven similar cases is denied for
reasons of administrative convenience peculiar to the cases.

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Interim Decision #3174

was the nature of their possible testimony specifically indicated, nor
was there any allegation that the applicant was unable to obtain
counsel to represent him in Phoenix, Arizona. The motion did include
an address in Los Angeles where the applicant could be reached, as the
regulations required. 

(c) (1991). 2 The address given,
however, was simply that of the applicant's attorney. There was no
evidence that the applicant himself had ever resided anywhere in the
United States, and there was apparently no specific indication of where
he might reside if released. In any event, at the time of the motion, he
was still detained in the custody of the Service.
   The Service opposed the applicant's motion. Counsel for the
Government argued that there was no good cause for the change of
venue, and that granting the motion would require the Service either
to transport the applicant, under guard, for hundreds of miles to his
hearing and back again at considerable expense or, in the alternative,
to release him on parole under 

 (1991), with little or
no assurance that he would later appear for his hearing. The Service
presented specific evidence of prior cases in which similar changes of
venue had been substantially prejudicial to the Government due to
transportation and detention costs and the risk of flight from custody
involved in such an operation.
   However, the immigration judge granted the applicant's motion
and, in a brief form order, ordered a change of venue to Los Angeles,
"in order to permit respondent [sic] to defend himself/herself in the
area in which he/she resides." The Service represents that the
immigration judge also stated his reasons orally as follows: "The
Applicant landed at Los Angeles, has no connections at Florence,
Arizona [the place of detention], and wants to go to Los Angeles."
   On appeal, the Service argues that the immigration judge erred by
changing venue in this case without a proper finding of good cause,
where the Government had demonstrated that it would be prejudiced
by such a change. We agree.
   An immigration judge's discretion to change venue in both exclusion and deportation cases is subject to the existence of good cause for
such a change. 

, 11,572 (1992) (to be codified at 

) (interim Apr. 6, 1992) (an immigration judge may
change venue for good cause only upon motion by one of the parties
and only after the other party has been given notice and an
opportunity to respond). 3 Good cause is determined by balancing the

  2 This requirement is retained under newly revised regulations governing changes of
venue. See 

, 11,572 (1492) (to be codified at 

)
(interim Apr. 6, 1992).
  3 Prior regulations in effect at the time of the order below authorized an immigration


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factors we have found relevant to the venue issue. See Matter of
Rivera, 

 (BIA 1988); Matter of Velasquez, 

 (BIA 1986) (relevant factors include administrative convenience, expeditious treatment of the case, location of witnesses, and
cost of transporting witnesses or evidence to a new location); see also
Maldonado-Perez v. INS, 

 (D.C. Cir. 1989); La Franca v.
INS, 

 (2d Cir. 1969).
   In the instant case, the immigration judge's order was perfunctory
and showed no evaluation or balancing of the factors we have found
relevant to a finding of good cause for a change of venue. We note that
a brief statement of the reasons for an immigration judge's decision to
grant or deny a change of venue over the objection of one of the parties
would assist this Board in reviewing the decision and determining
whether good cause exists. We have required such a statement in other
contexts. See, e.g., Matter of Correa, 

 (BIA 1984)
(immigration judge should state reasons for denial of motion to reopen
to allow meaningful review by the Board); Matter of Daryoush, 

 (BIA 1982) (district director should provide reasons for bond
determination to facilitate meaningful review). Here, no statement
showing a balancing of the relevant factors was given, despite the
Service's oral and written opposition to the motion and its showing of
prejudice, as noted above. Upon review, we must conclude that no
good cause for a change of venue existed.
   Moreover, the reasons the immigration judge expressed for his
order were not altogether appropriate under the circumstances. First,
the place where an applicant happens to attempt to enter the United
States, in and of itself, may have little, if any, significance to the
question of where venue should lie in an exclusion proceeding. The
alien cannot select a venue by deciding where to attempt to enter the
United States. The venue question is rather entrusted in the first
instance to the discretion of the district director, who files the charging
document in the venue selected. Matter of Vtctorino, 

(BIA 1982); 

(n)(I) (1992). Thereafter, the presiding
immigration judge should not order a change of venue without a
proper finding of good cause, as we have observed above.
   Second, the immigration judge's order in this case focused upon the
applicant's lack of connections to the place where he was detained.
However, the question of where the applicant should be detained was
not at issue. The issue upon a motion to change venue is rather where
future hearings in the case shall take place. Accordingly, an order
changing venue in a given case does not require the Service to change

judge to change venue for good cause either upon motion by one of the parties or upon
his own authority, and notice to the other party was not specifically required.

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Interim Decision #3174

the place where the applicant is detained. The place of detention is a
subject over which the immigration judge has no authority in an
exclusion proceeding. 4
   Third, there was no evidence in this case that the applicant actually
resided in Los Angeles, contrary to what the immigration judge's form
order suggests. Moreover, while the factors commonly associated with
the applicant's place of residence may be relevant to the question of
proper venue, the mere fact that an applicant allegedly resides or
wishes to reside in another city, without a showing of other significant
factors associated with such residence, is insufficient cause to outweigh
the Service's opposition to a motion for change of venue, particularly
where the Service has demonstrated that it would be prejudiced by
such a change. See Matter of Rivera, supra; cf. Chlomos v. INS, 

 (3d Cir. 1975) (deportation proceedings; residence already
established prior to arrest).
   Finally, there is no specific evidence in this case that the applicant
himself would be prejudiced by proceeding with his hearing in
Phoenix, Arizona. He argued, through counsel, that his counsel of
choice and an interpreter would not be available in Phoenix. However,
there is no evidence of any longstanding attorney-client relationship
here, nor is there any persuasive evidence that the applicant could not
have retained counsel and made arrangements for an interpreter to
assist him in Phoenix. As the Service points out, Phoenix is a
metropolitan area of about 2 million residents, with an experienced
immigration bar. The Government is not required to accommodate
the applicant's choice of a distant attorney and his acquisition of an
interpreter by changing venue at considerable expense, especially
where there is no showing that local counsel is unavailable or that an
interpreter cannot otherwise be obtained. See section 292 of the Act, 

 (1988) (alien may select attorney of choice, but at no
expense to the Government); see also El Rescate Legal Services v.
EOIR, 

 (9th Cir. 1992) (interpreters); Sasso v. Milhollan,

 (S.D. Fla. 1990). We note that for purposes of the

   4 The immigration judge can change the venue of the hearing in cases where the alien
is detained. Matter of Dobere, 

 (B1A 1990_ However, the place of
detention is a separate question entrusted to the sound discretion of the Service, the
agency explicitly charged with the statutory duty to control and guard the boundaries of
the United States. See section 103(a) of the Act, 

(a) (1988); see also 

, 235.3(b) (1992); Sasso v. Milhollan, 

 (S.D. Fla. 1990);
Committee of Central American Refugees v. INS, 682 F. Supp- 1055 (N.D. Cal. 1988);
Ledesma-Valdez v. Sava, 

 (S.D.N.Y. 1985); Louis v. Nelson, 

, 983-84 n.27 (S.D. Fla. 1982), rev'd in part on other grounds, sub nom. Jean v.
Nelson, 

 (11th Cir. 1984), aff'd, 

 (1985).

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                                                 Interim Decision #3174

hearing itself, interpreters are provided by the Government. See
Matter of ExtIvs, 

 (BIA 1982).
  In view of the foregoing, the interlocutory appeal will be sustained.
  ORDER:          The appeal by the Immigration and Naturalization
Service is sustained, and the order of the immigration judge is vacated.
  FURTHER ORDER                 The record is remanded to the immigration judge.




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