Motion to Change Venue

In practically every immigration court of the country, motions for a change of venue can be made orally, during the master calendar hearing, and they are rarely an issue in dispute.

However, in certain immigration courts, things work differently.

In one instance, I even had to threaten the Department of Justice to file a complaint for a Writ of Mandamus if the Buffalo immigration court failed to rule on my motion in a timely manner.

The application law in a motion for a change of venue

An immigration judge may change venue upon a showing of good cause. See 8 C.F.R. § 1003.20(b).

As the Board of Immigration Appeals noted, “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” See Matter of Rahman, Interim Decision 3174 (BIA 1992).

In the same decision, the BIA held that “good cause is determined by balancing the factors we have found relevant to the venue issue. See Matter of Rivera, 19 I&N Dec. 688 (BIA 1988); Matter of Velasquez, 19 I&N Dec. 377 (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).

Moreover, the Court of Appeals for the Second Circuit, in citing Matter of Rahman held that “good cause is determined by balancing such factors as administrative convenience, the alien’s residence, the location of witnesses, evidence and counsel, expeditious treatment of the case, and the cost of transporting witnesses and evidence to a new location”. Lovell v. I.N.S., 52 F.3d 458, 460 (2d Cir. 1995).

Further, an Immigration Court has a duty to facilitate the testimony of witnesses.

In Monter v. Gonzales, 430 F.3d 546 (2d Cir. 2005), the Court placed great weight on the location of the respondent’s witnesses to determine whether a motion for a change of venue should have been granted. In this case, the Court noted that the respondent, as well as his witnesses, were located significantly closer to New York City than Buffalo, New York, and that the failure of the Hon. Montante to facilitate the testimony of witnesses affected the overall fairness of the proceeding, and therefore was prejudicial.

Again, in Ngassaki v. Holder, an unpublished decision of the U.S. Court of Appeals for the Second Circuit dated September 13, 2013, the Court once again overruled a deportation order of Judge Montante on the basis that he had arbitrarily denied a motion for a change of venue.

Conclusion

The key to succeed in a motion for a change of venue in certain immigration courts is to scrupulously apply the facts in your case to the law outlined above.

If you have any question about motions for a change of venue, do not hesitate to contact me.