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, 18 I&N Dec. 178 (BIA 

1981), superseded. 

EXCLUDABLE: Act of 1952—Sec. 212(a)(23) [8 U.S.C. § 1182(a)(23)]—Convicted of 

controlled substance violation 

ON BEHALF OF APPLICANT: 

Alexander Schonfeld, Esquire 

299 Broadway, Suite 1600 

New York, New York 10007 

ON BEHALF OF SERVICE: 

David M. Dixon 

Appellate Counsel 

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, 17 I&N Dec. 108 (BIA 1979); 

Matter of Ku, 15 I&N Dec. 712 (BIA 1976); Matter of Sacco, 15 I&N 

Dec. 109 (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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19 I&N Dec. 830 (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, 18 I&N Dec. 178 (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." 8 C.F.R. § 3.19(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." 

8 C.F.R. § 3.13 (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. 8 C.F.R. § 3.12 

(1989). 2The 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." 52 Fed. 

Reg. 2932 (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. 

2Bond proceedings are specifically excluded from the venue regulation. 8 C.F.R. 

§ 3.19(a) (1989). 

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