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January 30, 2016

Motion to Change/Transfer Venue in Immigration Court

Author: New York Immigration Attorney Alena Shautsova

In my practice, quite often I receive a phone call with the following content: “Hello, my name is so and so, my nephew/husband/family friend is in detention in Texas, Virginia, New Jersey… I want the person to be released and be allowed to see an Immigration Judge in New York, where he/she lives/intends to live…”  I say “O’K, let’s see what we can do..” Then, I meet with the calling party and find out the details. Often, the scenario that I have to deal with is that a person was crossing the border, or recently crossed the border and was apprehended by the ICE enforcement. Often, the detained person is very young. But what unites all these calls, is that the person would be detained in a state other than New York,  but  it is New York where the person’s family and friends reside.

In such a situation, I as a practitioner have to file two motions. First, is a motion for re-determination of the bond consideration so that my client will be released from the ICE custody. (I will address this type of application in a separate blog).

And second, I have to file a motion to change venue of the proceedings, unless my client would like to travel back to TX, VA or MD for his/her future court hearings (which is not the case, of course).

1. When To File For Change of Venue and Why

One should file for change of venue of the proceedings as early as possible. In most cases, a person is being put in removal proceedings within the jurisdiction of the court where the person was detained. For example, J. crossed the border in TX and was apprehend. Even though J intended to reside in NY, and in NY J has all his family members, his court proceedings will be started in TX.  It means that if released from custody, J will have to travel to TX for each and every hearing and J’s witnesses, if any will have to travel to TX as well. Of course, it may not be practical or possible for the witnesses to travel, as well as for J. That is why, as soon as an attorney is retained, and attorney is advised that J can be released to his/her family members in a different state, attorney should file motion to change venue.  It is important to act as quickly as possible: the longer local DHS counsel will be involved in the J’s case, the more reluctant the DHS counsel will be to lose the case from his/her desk. As such, the DHS counsel will have a valid argument that the government will be prejudiced if the motion to change venue is filed late in case.

2. What Needs to be Submitted to Court to Show that there is Good Cause for Change of Venue

In order for the motion to be granted, the moving party has to demonstrate that a good cause exists. Usually, I submit: the motion itself (it is my affirmation describing the facts under which the request should be granted); an affidavit from my client; affidavits from friends and family explaining the ties my client has with the venue where we would like the case to be moved; etc. Under the current regulations, a request to change venue should be accompanied with the written pleadings to the allegations in the Notice to Appear.  Like any other motion, motion to change venue should contain a proposed order and proof of service on DHS.  It is also a good idea  to submit a draft of the application the client will be submitting with the court to demonstrate that client has a potential relief from removal.

3. What to do if the Motion is Denied

Even through that many view motions to change venue as trivial, sometimes they do get denied. In this case, a person has a couple of options. One may appeal the denial, or renew his/her request with the Court. Often, in the denial decision, the Court would “give a hint” as to what additional information it would like to see before granting the request. Often, a denial is a result of poor preparation, and with a little more effort, a request to change venue is granted.