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 Buffalo things work differently.
The Buffalo immigration court is located at 130 Delaware Avenue, in Buffalo, New York.
The Court has a history of being extremely rigorous when it comes to changing
venue. I found blogs of other immigration attorneys bragging about their
“victory” on a motion for a change of venue before the Buffalo
I also found an interesting
letter from the Department of Justice
, Office of Professional Responsibility, stating that the Court was subject
to administrative action for inappropriate conduct.
At the master hearing, I made an oral motion for a change of venue. Surprisingly,
the Court was citing BIA cases before the trial attorney even opposed
the motion, and before hearing all the supporting facts.
I was then instructed to file a legal brief in support of the motion. The
trial attorney filed a
baseless memorandum opposing my motion. That prompted me to file an ethical complaint. Immediately
right after, another trial attorney filed a
new memorandum, stating now the government was not opposing the motion. Incredibly, in
this new memorandum, DHS claimed that I promised to provide some documents
regarding my client.
After, another couple of weeks passed by without hearing anything from
the Court regarding my motion for a change of venue. The clerk informed
me that the Court decided to “defer” the motion until the
individual hearing. This is exactly what happened in the case discussed
from the Department of Justice (see the link to the letter above).
At that point, I threatened 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.
So, at the end, my unopposed motion for a change of venue was granted.
In its ruling, the Court complained that my threat to file a complaint
for a Writ of Mandamus was frivolous. Interestingly, it seems that neither
the Court nor the Department of Justice wanted to test the issue before
a Federal Judge.
The Court explained that he had not ruled on the motion because he was
waiting for the documents that DHS falsely said I was going to provide (!).
What the law is
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 Rahmanheld 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
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.
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.
The key to succeed in a motion for a change of venue in the Buffalo immigration
court is to scrupulously apply the facts in your case to the law outlined
above. It is imperative that you file an impeccable legal brief, so that
you make it very clear that you will appeal an unfavorable decision to
the BIA or even the Second Circuit, where you have case law directly on point.
If you have any question about motions for a change of venue in Buffalo,
do not hesitate to