Interim Decision #3024 

MATTER OF NAFI 

In Exclusion Proceedings 

A-24086112 

Decided by Board March 2, 1987 

When an applicant for admission has notice of his exclusion hearing and fails to 

appear, the immigration judge may, in his discretion, find that the applicant has 

failed to establish his admissibility and has abandoned any application for asylum 

and order him excluded and deported. 

EXCLUDABLE: Act of 1952—Sec. 212(aX20) [8 U.S.C. g 1123Z(aX2011—No valid immigrant visa 

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE: 

Robert G. Carr, Esquire John Holy°. 

225 Broadway, Suite 4402 General Attorney 

New York, New York 10007 

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

In a decision dated March 4, 1985, an immigration judge ordered 

the applicant excluded and deported. The applicant has appealed. 

The appeal will be dismissed. 

The applicant is a native and citizen of Afghanistan. He arrived 

at the Port of New York on March 15, 1981, and was paroled in 

pending consideration of his asylum claim. 1Exclusion proceedings 

were instituted on November 23, 1983, and the applicant was given 

notice that he may be excludable for lack of a valid visa. The applicant submitted a motion for a change of venue from New York to 

Las Vegas, Nevada, on or about September 6, 1984. The applicant 

explained that he had moved to Nevada to live with his nephews 

for the duration of the exclusion proceedings and that travel to 

New York to appear for proceedings would cause him undue hardship. By an order dated September 10, 1984, the motion was granted and venue was changed to Phoenix, Arizona. 

Whether a request for asylum in the United States was ever filed and the disposition of such request, if auy, are not reflected in the record. 
Interim Decision #3024 

The applicant appeared for an exclusion hearing in Las Vegas on 

January 9, 1985, and requested a continuance so he could obtain 

counsel. The hearing was rescheduled on the record for March 4, 

1985. On February 25, 1985, the applicant submitted a request for a 

change of venue back to New York. He explained that he had been 

unable to find employment and had returned to New York. The request for a change of venue was denied on February 26, 1985. The 

applicant did not appear for his hearing on March 4, 1985, and the 

immigration judge found that he had failed to establish admissibility and ordered him excluded and deported. 

On appeal, the applicant contends that the immigration judge 

had no authority to order him excluded and deported when he 

failed to appear. He contends that in absentia proceedings are authorized only in deportation proceedings. He also contends that the 

immigration judge abused his discretion in denying the motion for 

a change of venue as the applicant has lived in New York for 3 

years, is employed there, has no contacts with Las Vegas, and 

would face substantial hardship if required to travel to Las Vegas 

to pursue his asylum claim 

We find no merit in the applicant's contentions. The applicant 

correctly notes that in absentia proceedings are not specifically authorized in exclusion proceedings as they are in deportation proceedings. Compare sections 235 and 236 with section 242 of the Immigration and Nationality Act, 8 U.S.C. §§ 1225, 1226, and 1252 

(1982); see also Matter of Patel, 19 I&N Dec. 260 (BIA 1985), aff'd, 

Patel v. INS, 803 F.2d 804 (5th Cir. 1986); Matter of Marallag, 18 

I&N Dec. 775 (BIA 1971). However, the Act does not preclude an 

immigration judge from entering an order when faced with an applicant's unexplained failure to appear for an exclusion hearing. 

We see no reason why he should not be able to do so and there are 

good reasons for permitting such a practice. An applicant in exclusion proceedings is the moving party and bears the burden of proving admissibility. Section 291 of the Act, 8 U.S.C. § 1361 (1982). Applications for benefits under the Immigration and Nationality Act 

are customarily denied as abandoned or for lack of prosecution 

when the alien fails to file for or pursue them. Matter of Jean, 17 

I&N Dec. 100 (BIA 1979) (asylum application); Matter of Pearson, 13 

I&N Dec. 152 (BIA. 1969) (visa petition proceedings); Matter of Jaliawala, 14 I&N Dec. 664 (BIA 1974) (adjustment of status). 

Moreover, accepting the applicant's position would be unduly 

burdensome_ An applicant could force the Immigration. and Naturalization Service to take the extra time and expense of apprehending and detaining him to ensure his right to a hearing, or else the 

applicant could remain here indefinitely by simply refusing to 

AQ1 
Interim Decision #3024 

appear for hearings. Therefore, we conclude that, when an applicant for admission has notice of his exclusion hearing and fails to 

appear, the immigration judge may, in his discretion, find that the 

applicant has failed to establish his admissibility and has abandoned any application for asylum. He may further order the applicant excluded and deported, as did the immigration judge in this 

case. If such an applicant later establishes that he had reasonable 

cause for his failure to appear, the proceedings may be reopened. 

We find no abuse of discretion in the immigration judge's denial 

of a change of venue. One change of venue had already been granted, and the immigration judge was concerned that the applicant 

was simply trying to avoid a hearing and thereby remain here for 

several more years. We note that although the applicant came here 

in 1981 and claimed to want to apply for asylum, there is no evidence that an asylum application has ever been filed. 

Accordingly, the appeal will be dismissed. 

ORDER The appeal is dismissed. 

432