Unpublished Disposition, 879 F.2d 865 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 879 F.2d 865 (9th Cir. 1988)

Mirna Leticia LARA-MUNOZ, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 88-7085.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 1989.Decided July 6, 1989.

Before CHOY, ALARCON and LEAVY, Circuit Judges.


MEMORANDUM* 

Mirna Leticia Lara-Munoz ("Munoz"), a citizen of Guatemala, became subject to deportation proceedings in Phoenix, Arizona, after her entry without inspection into the United States. An immigration judge ("IJ") denied Munoz' motion to change the venue of the deportation proceedings to Washington, D.C. Munoz failed to attend or be represented at the ensuing deportation hearing held in Phoenix. The IJ issued an order of deportation, which the Board of Immigration Appeals ("BIA") affirmed. She appeals the BIA's decision to this court. We affirm.

Munoz requests that we stay this appeal pending the decision by the Board of Immigration Appeals ("BIA") on Munoz' motion to reopen deportation proceedings. This court initially granted a stay of the appeal pending Munoz' motion to reopen, but vacated its stay on November 23, 1988. We see no reason to disturb the November 23 order and deny Munoz' request.

An IJ is empowered to conduct a deportation hearing without the presence of the alien, if the "alien has been given a reasonable opportunity to be present ... and without reasonable cause fails or refuses to attend or remain in attendance at such proceeding." 8 U.S.C. § 1252(b) (1982), 8 C.F.R. Sec. 3.24 (1988). The facts leading to the deportation hearing are not disputed. The terms "reasonable opportunity" and "reasonable cause" are subject to legal interpretation and thus our review is de novo. 5 U.S.C. § 706(2) (A) (1982).

1. Reasonable opportunity to attend the hearing

Munoz was given reasonable opportunity to attend the hearing. Munoz was notified of her deportation hearing two weeks in advance. This was sufficient notice to give Munoz time to make travel plans and make the trip to Phoenix. Munoz did not seek a continuance from the IJ, nor does she argue on appeal that two weeks was insufficient time to prepare for the hearing.

Munoz contends she lacked the opportunity to attend the hearing because she could not afford to travel to Phoenix or send her Washington counsel in her stead. However, Munoz does not show why she did not send her Los Angeles counsel or that she could not afford to hire Phoenix counsel, either of whom could have appeared even if she did not. Munoz concedes that she did not even seek Phoenix counsel. On this state of the record, Munoz fails to show that she was denied reasonable opportunity to attend the hearing.

2. Reasonable cause to fail to attend the hearing

Munoz argues that the incorrect denial of her motion for a change of venue was "reasonable cause" to be absent from the hearing. We do not decide whether the improper denial of venue constitutes "reasonable cause" to be absent from the hearing, because we hold that the denial was proper, and if improper, would not cause us to reverse or remand.

Venue usually lies "at the Office of the Immigration Judge where the Service files a charging document." 8 C.F.R. Sec. 3.19(a). However, the IJ may change the venue "for good cause," on motion by one of the parties. 8 C.F.R. Sec. 3.19(b). The meaning of good cause is not defined in the regulations, and denials must be evaluated on a case by case basis. Baires v. I.N.S., 856 F.2d 89, 92 (9th Cir. 1988). Decisions on whether good cause is shown are not overturned except for abuse of discretion. Id. Abuse of discretion occurs "if there is no evidence to support the decision or if the decision is based on an improper understanding of the law." Song Jook Suh v. Rosenberg, 437 F.2d 1098, 1102 (9th Cir. 1971).

Munoz argues the IJ applied the wrong legal standard by requiring "compelling reasons" for a change in venue, rather than simply "good cause," as specified by the regulations. Munoz' argument is based on the IJ's language in the memorandum decision denying the change in venue, where the IJ said that " [i]n any event, the reasons stated for Change of Venue are not compelling."

Munoz reads in the word "compelling" a term of art where none appears to have been intended. Reading the record as a whole it is clear that Munoz failed to provide the IJ any information that might have persuaded the IJ to grant the change of venue. Munoz did not name any witnesses, and failed to explain why she was apprehended on her way to Los Angeles if her original destination was Washington, D.C. Munoz also failed to produce any evidence of indigency beyond her declaration in an affidavit that she was indigent, and concedes she did not even seek Phoenix counsel.

The basis for Munoz' appeal is that the improper denial of her motion to change venue resulted in a violation to her statutory and due process rights. The rights at stake here are the right to be represented by counsel of choice, 8 U.S.C. § 1362 (1982), the right to present evidence on her own behalf, 8 U.S.C. § 1252(b) (3), and the right to petition for political asylum. 8 U.S.C. § 1158 (1982). We remand only when the denial of these statutory rights results in prejudice to the alien. Baires, 856 F.2d at 91.

Munoz fails to show prejudice. Munoz first claims prejudice because the denial of change in venue prevented her from presenting evidence on her behalf. However, she made no showing what that evidence would be, and has failed to name her witnesses. She then claims she was denied the right to retain the counsel of her choice, because she could not afford to send her Washington counsel to Phoenix. But this cannot amount to prejudice if Munoz never even sought replacement counsel in Phoenix. Munoz finally argues the denial of the change in venue deprived her of the right to seek asylum and withholding of deportation. Nothing prevented her from filing for asylum, and her failure to do so prior to the deportation hearing is still unexplained.

Munoz contends the denial of the change in venue denied her of her constitutional right to due process. In Baires we said that " [i]f the prejudice to the alien is sufficiently great, the constitutional guarantee of due process may be violated." Baires, 856 F.2d at 91. Since we conclude that Munoz failed to show prejudice at all, the constitutional question does not arise.

AFFIRMED.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3