Although this decision is unpublished, the Second Circuit’s decision in Ngassaki v. Holder last week is important, because Circuit Courts don’t often rule on change of venue motions. In this case, the immigrant was in court in Buffalo but asked the court to change the venue to New York, NY, noting that he lived in New York and that all of his evidence and witnesses were in New York. When the IJ refused, the hearing was conducted in large part by telephone, which led the IJ to discount at least some of the witnesses’ testimony.
The Second Circuit pointed out that the BIA had mischaracterized the record (mistaking one IJ decision for another) and that the Board had not made a “thorough review of the record before upholding the denial of venue transfer.” It said even if the Board hadn’t made that mistake, its one-line ruling was “insufficiently detailed for us to review its findings and therefore constitutes an abuse of discretion.” Finally the court said that refusing to change venue had prejudiced Mr. Ngassaki, because the judge had criticized his witnesses’ testimony in part because they were testifying by telephone and he could not tell if they were reading from written statements. If the court had just changed the venue, the witnesses would have been present in court to testify. Excellent work by Lauris Wren of the Hofstra Law School Asylum Clinic!