Matter of Rivera
| Decision Date | 01 August 1988 |
| Docket Number | Interim Decision Number 3072,A-23456046. |
| Citation | 19 I&N Dec. 688 |
| Parties | MATTER OF RIVERA. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated February 24, 1986, an immigration judge, following an in absentia hearing, found the respondent deportable under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1982), as an alien who entered the United States without inspection by immigration officers. The respondent was ordered deported to the Dominican Republic. The respondent appealed. The appeal appears to be untimely. However, there is some question as to when the respondent received the immigration judge's decision. Neither the respondent nor the Immigration and Naturalization Service has raised the issue of the timeliness of the appeal. Under these circumstances, we have decided to take the case on certification under 8 C.F.R. § 3.1(c) (1988). The request for oral argument before the Board is denied and the appeal will be dismissed.
An Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) was issued against the respondent on November 1, 1985. The order stated that the respondent's hearing would be held in Hato Rey, Puerto Rico, at a time to be set. On December 9, 1985, counsel for the respondent sought a change of venue from Puerto Rico to New York City. On December 12, 1985, the respondent was notified that his deportation hearing would be held on February 24, 1986, in San Juan, Puerto Rico. On January 22, 1986, the immigration judge denied the respondent's request for a venue change, stating that venue would not be changed from Puerto Rico "until such time as the respondent's deportability is settled on this record, relief to be sought is specified and good cause for such change of venue is alleged." On February 7, 1986, the respondent's counsel sent a motion to reopen and reconsider to the immigration judge, again requesting a change of venue, and stating why he believed venue should be changed. On February 19, 1986, the immigration judge denied the motion, noting that it was received shortly before the scheduled hearing. The immigration judge further stated that the issue of deportability, which was being disputed, was best adjudicated where the arrest occurred. Neither the respondent nor his counsel appeared for the hearing on February 24, 1986. The immigration judge proceeded with the hearing in absentia pursuant to section 242(b) of the Act, 8 U.S.C. § 1252(b) (1982).1 The Service submitted a Form I-213 (Record of Deportable Alien) to establish the respondent's deportability. The immigration judge found the respondent deportable based on that evidence.
On appeal, counsel for the respondent argues that the denial of a venue change was a denial of due process and that the immigration judge's refusal to consider his motion to reconsider the denial of the change of venue request was an abuse of discretion. He further asserts that he did not receive the notice of denial until 1 day prior to the scheduled hearing and he did not then have an adequate opportunity to prepare for the hearing.
The respondent was properly notified of the time and date of his deportation hearing. Having received notice of the hearing, the respondent or his counsel was required to attend, or show reasonable cause for the failure to attend. Matter of Patel, 19 I&N Dec. 260 (BIA 1985), aff'd, Patel v. United States INS, 803 F.2d 804 (5th Cir. 1986); Matter of Marallag, 13 I&N Dec....
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