Khonsari, Niloufar PANGEA LEGAL SERVICES 350 Sansome Street Suite 650 San Francisco, CA 94104

U.S. Department of Justice

Executive Office for Immigration Review

Board <?f Immigration Appeals Qfjice of the Clerk

5107 Leesburg Pike. Smte 2000 Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - DAL 125 E. John Carpenter Fwy, Ste. 500 Irving, TX 75062-2324

Name: VENTURA-VENTURA, NELSON A 205-700-837

Date of this notice: 10/15/2014

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Enclosure

Panel Members: Holmes, David B. Miller, Neil P. Guendelsberger, John

Sincerely,

DOWtL ca.AA)

Donna Carr Chief Clerk

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

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Cite as: Nelson Ventura-Ventura, A205 700 837 (BIA Oct. 15, 2014)

U.S. Department of Justice •Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Chll:l'ch, Virginia 20530

File: A205 700 ·837 - Dallas, TX

In re: NELSON VENTURA-VENTURA

IN REMOVAL PROCEEDINGS

INTERLOCUTORY APPEAL

Date:

ON BEHALF OF RESPONDENT: Niloufar Khonsari, Esquire

ON BEHALF OF DHS: Paul Hunker Chief Counsel

OCT l-i20M

The respondent has filed an interlocutory appeal from the hnmigration Judge's August 19, 2014, decision denying his motion for change of venue. We find it appropriate to exercise our jurisdiction over this case and address the merits of this appeal. In the respondent's April 29, 2014, Motion to Change venue, he admitted the factual allegations in the Notice to Appear and conceded removability. On June 19, 2014, he submitted for purposes of lodging an application for asylum, withholding of removal and protection under the Convention Against Torture. See

sections 208 and 24l(b)(3) of the Immigration and Nationality Act, respectively, 8 U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R. § 1208.16(c)(2). The respondent has also filed an EOIR 42B Application for Cancellation of Removal with the U.S. Citizenship and Immigration Service. Having appeared for master calendar hearings in Dallas, Texas, he requests that his case be scheduled at the San Francisco, California, Immigration Court in proximity to his residence, witnesses and attorney of record. The Department of Homeland Security has filed a joint motion in support of the respondent's appeal indicating they agree venue change to San Francisco is the proper course of action in these proceedings. We find that good cause has been shown, and will grant the motion to change venue.

Accordingly, the interlocutory appeal will be sustained and venue transferred to the San Francisco Immigration Court.

ORDER: The interlocutory appeal 1s sustained, and the motion to change venue to San Francisco is granted.

FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings.

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Cite as: Nelson Ventura-Ventura, A205 700 837 (BIA Oct. 15, 2014)

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

DALLAS, TEXAS

File: A205 700 83 7 § § § § § § § §

Date: May 28, 2014

In the Matter of:

VENTURA-VENTURA, Nelson In Removal Proceedings

Respondent

CHARGE:

APPLICATION:

Section 237(a)(l)(C)(i) of the Immigration and Nationality Act (the Act), as amended, as an amended, in that after admission as a non-immigrant under section 101 ( a)(l 5) of the Act, you failed to maintain or comply with the conditions of the non-immigrant status under which you were admitted.

Motion for Change of Venue

ON BEHALF OF THE RESPONDENT: ON BEHALF OF DHS:

Niloufar Khonsari, Esq. 350 Sansome Street, Ste. 650 San Francisco, California 94104

Paul B. Hunker III, Esq.

Chief Counsel

125 E. John Carpenter Freeway, Ste. 500 Irving, Texas 75062

WRITTEN DECISION OF THE IMMIGRATION JUDGE

The respondent is a native and citizen of Mexico. He was admitted to the United States at Laredo, Texas on or about � a non·immigrant H2R. He failed to maintain

his status, to wit: as an H2B visa worker he was to be employed by Northwoods Forestry Inc. of Wisconsin. He failed to maintain employment with that company. He also failed to depart the United States on or before July 16, 20� He currently resides in San Jose, California and works for Target Stores in San Jose, California as an independent house painter. Consequently, the Department of Homeland Security (hereinafter referred to as the government) charged the respondent with removal pursuant to section 2237(a)(l)(C)(i) of the Immigration and Nationality Act (tbe Act), as amended, in that after admission as a non·ilnrnigrant under section 10l(a)(l5) of the Act, he failed to maintain or comply with the conditions of the non-immigrant status under which he was admitted. See Notice to Appear.

On April 29, 2014, the respondent filed a motion to change venue to San Francisco, California. In his motion to change venue, the Respondent admits to the factual allegations and concedes the charge of removal. The Respondent claims that he is wilJ seek reJief from removal

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in the form of an application for cancellation of removal for certain non-pennanent residents, asylum, withholding of removal, and relief under the convention against torture.

For the reasons set forth below, the Motion for Change of Venue wi11 be denied.

LEGAL STANDARD

Venue lies at the Immigration Court where the charging document is filed. See 8 C.F.R § 1003.20(a). An Immigration Judge, for good cause, may change venue only upon motion of one of the parties, and only after the other party has been given notice and an opportunity to respond to the motion to change venue. See 8 C.F.R §1003.20(b). No change of venue shall be granted without identification of a fixed address where the respondent may be reached. See 8 C.F.R

§1003.20(c).

It is within the sound discretion of the Immigration Judge to grant a change of venue upon a showing of good cause. See 8 C.F.R §1003.20(b); see also Chow v. INS, 12 F. 3d 34, 39 (5th Cir. 1993). 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. See Maldonado-Perez v. INS, 865 F. 2d 328 (D.C. Cir. 1989); see also La Franca v.

INS, 413 F. 2d 686 (2d Cir. 1969); Matter of Rahman, 20 I&N Dec. 480 (BIA 1992);�Matter of Rivera, 19 I&N Dec . 688 (BIA 1 988); Matter o/Velasquez, 19 I&N Dec. 377 (BIA (1986). Motions to change venue must be considered on case by case basis. See Baires v. INS, 856 F.2d 89, 91-92 (9th Cir. 1988).

ANALYSIS

Based on several factors, and insufficiencies of the Respondent's motion, the Court is unable to find that a change of venue would be proper in the respondent's case.

Although the Respondent has admitted to the factual allegations contained on the Notice to Appear and conceded to the charge of removal, he has failed to demonstrate that he is prima facie eligible for cancellation of removal for certain non-permanent residents, asylum, withholding of removal or relief under the convention against torture. In light of the fact that the Respondent was admitted to the United States on or about February 1, 20ol he has failed to demonstrate that he has been continuously physical present in the United States for ten years. In addition, he has failed to demonstrate that he has any qualifying relatives as defined in section 240A(b )(1) of the Act. The Respondent has also failed to establish that he filed an asylum application within one year of the date of his arrival as required by the Act . Finally, the Respondent has failed to demonstrate prima f acie that he is eligible for withholding of removal or relief under the convention against torture. As a result, a change of venue would only further unnecessary delay removal proceedings.

The Respondent is under the mistaken belief that his residence in San Francisco, California is sufficient to establish good cause for a change of venue. Though ho1ding the

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hearing near his residence may be more convenient for the respondent, his convenience is not enough to establish "good cause." It is not required that a deportation hearing be at or near an

alien's place of residence . See Maldonado-Perez, supra at 336.

Additionally, the record does not support that witnesses ' testimony would be crucial to his case. As such, the Court finds that the Respondent has not shown that he is materially prejudiced by holding removal proceedings in Dallas rather than San Francisco. The respondent ' s failure to submit any applications for relief with his motion for change of venue would result in an unnecessary delay and, therefore, outweighs any other consideration.

Finally, the Court finds in its discretion reasonable grounds to deny the request for change of venue. See Matter of Chow, supra. (affirming that it is reasonable for the judge to deny, as a matter of discretion, a change of venue where an alien's deportability and eligibility for relief remain an issue); see also Matter of Rivera, 19 I&N Dec. 688 (BIA 1988). Here, the Court finds that transferring the respondent's case to the San Francisco Immigration Court would result in an unnecessary delay and, therefore, outweighs consideration of his location and that of his attorney.

Accordingly, weighing all the factors relevant to a change of venue, the Court does not find the factors weigh in the respondent's favor, and therefore, cannot find good cause to transfer venue to San Francisco. Instead the Court finds that a change of venue at this stage would only serve to unnecessarily delay the proceedings. As the Board oflmmigration Appeals (the BIA) has held, if the respondent cannot establish that he even appears to be eligible for relief, then at that juncture, "there is no need for a change of venue, as it is then appropriate to issue the order

of [removal]." See Matter of Chow, supra, at 652 (emphasis added).

Having found no good cause to change venue to San Francisco Immigration Court, the Court must deny the respondent's request for a change of venue.

Accordingly, the following order will be entered:

Date: 29th day of May, 2014 Dallas, Texas

ORDER

Immigration Judge Dallas, Texas

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