MATTER OF ALPHONSE, et al.
A-26006595
Board of Immigration Appeals
November 17, 1981
Interim Decision #2892 | 18 I&N Dec. 178
In Exclusion Proceedings
(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.
EXCLUDABLE:
Order: Act of 1952—Sec. 212(a)(20) [
ON BEHALF OF APPLICANT: Arthur C. Helton, Esquire; Mailman & Ruthizer, P.C.; 1290 Avenue of the Americas; New York, New York 10104
ON BEHALF OF SERVICE: James W. Grable, Chief Legal Officer
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,
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 235 of the Act,
The immigration judge relied on two precedent decisions by this Board as authority for his conclusion that he had jurisdiction to entertain the motion to change venue. In Matter of Seren, 15 I&N Dec. 590 (BIA 1976), we interpreted the language in
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 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. 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. In a 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.
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
Therefore, our decision in Matter of Wadas, supra, is limited to situations 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
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
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.