UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW BOARD OF IMMIGRATION APPEALS FALLS CHURCH, VA

In re the Matter of:

Respondent,

In Removal Proceedings

Immigration Judge: Hon. Deitrich H. Sims

Next Hearing: Sept. 15, 2014 at 1:00PM

RESPONDENT’S BRIEF IN SUPPORT OF UNOPPOSED INTERLOCUTORY APPEAL

RESPONDENT’S BRIEF IN SUPPORT OF UNOPPOSED INTERLOCUTORY APPEAL

by and through pro bono counsel,

seeks interlocutory review of the

Immigration Judge’s (“IJ’s”) decision denying his motion for change of venue from Dallas, Texas to the jurisdiction of his residence, San Francisco, California. See Board of Immigration Appeals (“BIA” or “Board”) Practice Manual 4.14(c). Respondent also seeks review of the IJ’s conduct as it infringed on Respondent’s due process rights, including failure of the IJ to recuse himself after he prejudged multiple legal issues in Respondent’s case prior to receipt or review of the evidence. The Board has exercised its authority to entertain interlocutory appeals in instances involving either important jurisdictional questions regarding the administration of immigration laws or recurring questions in the handling of cases by Immigration Judges. See Matter of K-, 20 I&N Dec. 418 (BIA 1991). The present case involves both, important jurisdictional questions and recurring questions concerning the handling of cases by the Honorable Immigration Judge Deitrich H. Sims.

STATEMENT OF FACTS Respondent is a citizen and national of Mexico, born on

. He was last admitted

to the United States at Laredo, Texas on or about February 1, 2006, with an H-2B nonimmigrant visa. Prior to this date, Respondent was admitted to the United States multiple times, the first time being on or around January 29, 2000. See Exhibit E, List of Entries Retrieved From Alien File. Since January 2000, Respondent maintained a continuous residence in the United States, with few, short returns to Mexico, solely to renew his status. See Exhibit G, Tax Records and Forms W-2. Respondent was employed by

Inc. of Wisconsin and maintained his

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status until July 15, 2006. After said date, Respondent did not maintain his status, but continued to build a home and family in the United States, and he never returned to Mexico again. Respondent currently works for

in San Jose, California and as an

independent house painter/contractor. He has two U.S. citizen children, ages eight and six, and many extended family members and friends who are U.S. citizens and legal permanent residents. See Exhibit F, Birth Certificates for Respondent’s U.S. Citizen Children. One of Respondent’s daughters has learning disabilities for which she receives special attention and courses. Respondent has been a law abiding resident of the United States since January 2000, except for one misdemeanor DUI conviction in 2010 that he regrets and for which he paid fees, took courses, and complied with the consequential rules and rehabilitative programs available. See Exhibit H, including Enrollment and Completion Certificates. Apart from this single incident, Respondent has been a model resident of the United States. He has continuously filed federal income tax returns and paid taxes, maintained good relations with his community, and served as a member of his 7th Day Adventist church. See Exhibit G, Tax Records. Respondent’s friends and family have been harmed in Mexico in the last few years. In 2010, Respondent learned of a politically-motivated killing in his hometown in Cardenas, Mexico. In 2013, Respondent’s friend, Mr.

, was killed by individuals who allegedly

were Mexican immigration authorities. The continuous and worsening threats and incidents of death and violence experienced by Respondent’s friends and family cause him to fear returning to Mexico. On or about February 18, 2014 while in Dallas, Texas for a family visit, Respondent was pulled over and cited by the police for “Following Too Closely,” receiving a warning only and no fine. See Exhibit L, Traffic Citation. After citing him for “Following Too Closely,” the police

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then proceeded to hold Respondent on the road, while they called immigration authorities. As a result of the traffic citation, Respondent was taken into immigration custody and detained at Rolling Plains Detention Center in Haskell, Texas. Respondent was issued a Notice to Appear (NTA) on or about February 19, 2014, charging him as follows, pursuant to Section 237(a)(1)(C)(i) of the Immigration and National Act (“INA”): after admission as a nonimmigrant under Section 101(a)(15) of the INA, Respondent failed to maintain or comply with the conditions of his nonimmigrant status under which he was admitted.

See Exhibit M, Notice to Appear, and Exhibit E, I-94 Cards.

Subsequently, on February 19, 2014, Respondent received a Notice of Custody Determination, releasing him under a bond in the amount of $10,000. See Exhibit N, Notice of Custody Determination. Respondent was ordered released on February 24, 2014 after paying said bond amount. See Id., Order to Release Alien. Respondent’s NTA contains Respondent’s location at the time of issuance as his place of residence: “Rolling Plains Detention Center, 118 County Road 206, Haskell, Texas, United States” rather than his actual residence in San Jose, California. See Exhibit M, Notice to Appear. The Department of Homeland Security and the Immigration Court have acknowledged and maintained Respondent’s proper address at

, San Jose, CA

on record since

Respondent’s detention and release. See Exhibits O and P, Hearing Notices, dated March 1, 2014 and June 30, 2014. Respondent continues to reside at said address with his family. See Exhibits Q, T and AA, Respondent’s Motions for Change of Venue (dated April 23, 2014, June 11, 2014, and July 3, 2014); and Exhibit I, PG&E Bill, demonstrating his current residence at the above address. On April 23, 2014 Respondent filed a timely motion for change of venue admitting to all

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the factual allegations and conceding to removability, and providing Respondent’s intent to apply for relief under Cancellation of Removal, Asylum, Withholding, and the Convention Against Torture. On May 28, 2014, the IJ denied said motion for change of venue based on prima facie ineligibility for relief. See Exhibit S, Written Decision of the Immigration Judge. On June 11, 2014, Respondent filed a renewed motion for change of venue and in the alternative, a motion for continuance of the master calendar hearing scheduled for June 30, 2014. See Exhibit T, Respondent’s Renewed Motion for Change of Venue. Said motion was mailed 19 days prior to the hearing. These motions included copies of Respondent’s I-589 Application for Asylum and EOIR-42B Application for Cancellation of Removal, as well as proof of continuous presence, and copies of Respondent’s two U.S. citizen daughters’ birth certificates. The Court allegedly received said filing on June 19, 2014, or 11 days prior to his Master Calendar hearing. But see Exhibit W, USPS Certified Mailing Label, indicating that the Court received this filing on June 13, 2014. On June 23, 2014, the Office of Chief Counsel filed a written non-opposition motion to Change of Venue. Counsel’s office received said non-opposition by Chief Counsel on June 27, 2014. On that same date, June 27, 2014, Counsel called the Immigration Court and spoke with Court Administrator, Barbara Baker, who stated that the IJ considered Respondent’s second Motion for Change of Venue filed untimely and that no ruling would be made on said motion prior to Respondent’s master calendar hearing on June 30, 2014. See Exhibit K, Declaration of On June 30, 2014, Respondent appeared before the IJ for his scheduled master calendar hearing and attempted to file his I-589 Application for Asylum. However, the IJ rejected Respondent’s attempted filing of his application, and ordered him to stand in a row with several

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other Respondents in the courtroom, all of whom the IJ proceeded to reschedule for another master calendar hearing without significant questioning. In addition to rejecting Respondent’s attempted I-589 filing at his first master calendar hearing, the IJ failed to rule on Respondent’s unopposed motion to change venue, which was Respondent’s second motion requesting a change of venue. Said motion was entirely ignored and has not been ruled on to date. Furthermore, the IJ failed to rule on a motion to permit telephonic testimony of pro bono counsel, prohibiting Counsel from appearing telephonically on the June 30, 2014 hearing. See Exhibit Y, Motion to Present Telephonic Testimony. On July 3, 2014, Counsel filed another unopposed motion for change of venue and a motion to present telephonic testimony if motion for change of venue is not granted. See Exhibit AA, Unopposed Motion for Change of Venue. On four occasions on July 11, 2014, July 31, 2014, August 6, 2014, and August 15, 2014, Counsel called the Immigration Court to request that the IJ rule on Respondent’s pending motions. Each time, Counsel was informed that the IJ was in receipt of the motions but that no decision had been made to date. After learning that no action had been taken by the IJ, on July 11, 2014, July 31, 2014, and August 15, 2014, Counsel also called Assistant Chief Immigration Judge, Deepali Nadkarni, and left detailed messages regarding the IJ’s undue delay, violation of due process rights, and Respondent’s request for an expeditious ruling on his motions. On August 19, 2014, the IJ denied Respondent’s unopposed motion to change venue. Although the IJ’s decision is dated August 19, 2014, the order’s certificate of service is dated September 2, 2014. See Exhibit DD, Written Decision of the Immigration Judge. On September 3, 2014, Counsel received a call from Dallas Chief Counsel, Mr. Paul Hunker, who informed Counsel of the IJ’s decision to deny on Respondent’s unopposed motion

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to change venue. Chief Counsel emailed the IJ’s decision on September 3, 2014. Counsel, while en route on an international trip, immediately began drafting the present interlocutory appeal on September 3, 2014. Respondent’s second master calendar hearing is on September 15, 2014. As such, the Immigration Court mailed the second and last order on Respondent’s third change of venue motion with the next master calendar hearing less than two weeks away, and almost two months after the motion was filed. On September 3, 2014, Counsel spoke with Chief Counsel in Dallas, who stated the Department would non-oppose an interlocutory appeal. The present unopposed interlocutory appeal ensues.

ARGUMENT The Board has exercised its authority to entertain interlocutory appeals in instances involving either important jurisdictional questions regarding the administration of immigration laws or recurring questions in the handling of cases by Immigration Judges. See BIA Practice Manual § 4.14(c), citing Matter of K-, 20 I&N Dec. 418 (BIA 1991). In the present case, important jurisdictional questions are raised by the IJ’s decision to deny Respondent’s Unopposed Motion for a Change of Venue, and concerns that appear to be recurring are raised by the IJ’s handling of Respondent’s matter. As such, interlocutory review by the Board is appropriate here. Id. I. THE IMMIGRATION JUDGE COMMITTED REVERSIBLE ERROR WHEN HE FAILED TO GRANT RESPONDENT’S MOTION FOR A CHANGE OF VENUE. The IJ abused his discretion by denying Respondent’s Unopposed Motion for Change of Venue, by prejudging the merits of Respondent’s case, and by failing to consider relevant factors 6  

relating to venue as required by regulation and case law.

Where good cause exists, an

immigration judge may change the venue of any case to another jurisdiction. 8 C.F.R. § 1003.20(b); Matter of Dobere, 20 I & N Dec. 188 (BIA 1990). Good cause is determined by a balancing of factors that the Board finds relevant to the venue issue. Matter of Rahman, 20 I. & N. Dec. 480, 482-83 (BIA 1992); Matter of Rivera, 19 I. & N. Dec. 688 (BIA (1988); Matter of Velasquez, 19 I. & N. Dec. 377 (BIA 1986).

Balancing of such relevant factors include

administrative convenience, expeditious treatment of the case, location of witnesses, and cost of transporting witnesses or evidence to a new location. Matter of Rahman, 20 I. & N. Dec. 480, 482-83 (BIA 1992); Matter of Rivera, 19 I. & N. Dec. 688 (BIA (1988); Matter of Velasquez, 19 I. & N. Dec. 377 (BIA 1986). In the present case, the IJ’s decision to deny a change of venue was based on 1) a predetermination of the merits of Respondent’s case without affording him an individual merits hearing and without applying the relevant factors relating to “good cause,” and 2) the IJ’s bias and interest in ordering Respondent’s deportation.

A. THE IJ’S DECISION WAS NOT BASED ON A BALANCING OF FACTORS, BUT RATHER ON AN UNFOUNDED, NEGATIVE PREJUDGMENT OF THE MERITS OF RESPONDENT’S CLAIMS FOR RELIEF, WITHOUT AFFORDING HIM AN INDIVIDUAL MERITS HEARING. The legal test for a change of venue is good cause shown. 8 C.F.R. § 1003.20(b); Matter of Dobere, 20 I & N Dec. 188 (BIA 1990). The prima facie eligibility test only comes into play where an individual seeks to reopen a prior order to apply for relief. In his initial decision to deny change of venue, the IJ states, “he [Respondent] has failed to demonstrate that he is prima facie eligible for cancellation of removal for certain nonpermanent residents, asylum, withholding of removal or relief under the convention against 7  

torture.” See Exhibit S, Written Decision of the Immigration Judge dated May 28-29, 2014. The IJ further repeats, “Finally, the Respondent has failed to demonstrate prima facie that he is eligible for withholding of removal or relief under the convention against torture.” Id. Thus, the IJ found Respondent ineligible for relief prior to Respondent’s first Master Calendar hearing (June 30, 2014) based on prima facie ineligibility for relief. At the Master Calendar hearing on June 30, 2014, the IJ refused to allow Respondent to approach the bench to file his applications for relief in open court. After Respondent submitted his Form EOIR-42B with supporting documents and lodged his I-589 Application via Counsel, the IJ cited to different reasons to, again, find respondent ineligible for relief. See Exhibit DD, Written Decision of the Immigration Judge. The IJ’s analysis in both decisions seems inconsistent with the reasoning behind the BIA’s recent decision in Matter of E-F-H-L, where the Board found that an IJ may not pretermit an applicant from asylum or withholding of removal without conducting a hearing on the merits. See Matter of E-F-H-L, 26 I & N Dec. 319 (BIA 2014). a. The IJ erred in pretermitting Respondent’s asylum application without affording him an opportunity to file said application and an evidentiary hearing pursuant to Matter of E-F-H-L. Prior to setting an individual merits hearing date, prior to permitting time for supplemental document filings and information gathering, and prior to holding an evidentiary hearing, the IJ essentially ruled on Respondent’s eligibility for relief. In response to the IJ’s initial decision to deny change of venue based on prima facie ineligibility for relief, Respondent then filed a second motion for a change of venue, dated June 11, 2014, with supporting evidence. See Exhibit T, Renewed Motion for Change of Venue. The IJ ignored this motion entirely and has failed to rule on it to date.

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Respondent then filed a third motion for a change of venue, dated July 3, 2014. See Exhibit AA, Respondent’s Unopposed Motion for Change of Venue. One reason for denial cited by the IJ in his decision is a finding that Respondent is not eligible for asylum. See Exhibit DD, Written Decision of the Immigration Judge, dated August 19, 2014 and served via mail on September 2, 2014.

To support his finding of ineligibility for asylum, the IJ cites to

inconsistencies or omissions of details in Respondent’s Form I-589 and Form EOIR-42B. See Exhibit DD, Written Decision of the Immigration Judge. It should be noted that Respondent was uncertain as to the dates of his entries prior to 2006 and was advised to leave out some of those details to supplement them accurately prior to his full evidentiary hearing. See Exhibit K, . Respondent included his estimated date of entry in 2000 on Form EOIR-42B solely to demonstrate his continuous presence and his more than ten-years of residence in the United States. However, given the uncertainty of his exact dates of entry without further documentation and while Respondent’s FOIA Request was pending, Counsel advised Respondent to intentionally leave out some of the unknown details, until additional documentation was gathered to corroborate, supplement, and amend the applications. See Exhibit K . Respondent is now in receipt of his FOIA file, which includes one document listing Respondent’s recorded entries in 2000, 2002, and 2006. See Exhibit D, List of Entries Retrieved From Alien File. These dates are consistent with Respondent’s reporting to Counsel and selective inclusion on his applications, and some of the months and years will be added to his applications where they were previously omitted, if Respondent is afforded an opportunity to do so. As determined under Matter of E-F-H-L, a Court may not prejudge eligibility or exclude an applicant from pursuing relief under asylum or withholding of removal without a merits hearing. See Matter of E-F-H-L, 26 I & N Dec. 319 (BIA 2014).

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Therefore, the IJ erred in predetermining the merits of Respondent’s asylum application after his first Master Calendar Hearing, without affording him an opportunity of an evidentiary hearing. Id.

B. THE IJ MISAPPLIED THE LAW AND VIOLATED RESPONDENT’S DUE PROCESS RIGHTS UNDER THE 5TH AMENDMENT BECAUSE HE FAILED TO BALANCE FACTORS RELATED TO GOOD CAUSE FOR CHANGE OF VENUE AND INSTEAD CONDUCTED AN ANALYSIS OF THE MERITS OF RESPONDENT’S APPLICATIONS FOR RELIEF. Good cause is determined by a balancing of factors that the Board finds relevant to the venue issue. Matter of Rahman, 20 I. & N. Dec. 480, 482-83 (BIA 1992); Matter of Rivera, 19 I. & N. Dec. 688 (BIA (1988); Matter of Velasquez, 19 I. & N. Dec. 377 (BIA 1986). Balancing of such relevant factors include administrative convenience, expeditious treatment of the case, location of witnesses, and cost of transporting witnesses or evidence to a new location. Matter of Rahman, 20 I. & N. Dec. 480, 482-83 (BIA 1992); Matter of Rivera, 19 I. & N. Dec. 688 (BIA (1988); Matter of Velasquez, 19 I. & N. Dec. 377 (BIA 1986). No rule exists that a Respondent must fully defend the merits of his eligibility for relief as a basis for a change of venue. An individual is entitled to a full and fair hearing of his claims and a reasonable opportunity to present evidence on his behalf. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). In addition, an immigration judge must consider the evidence to be presented and its importance to the alien’s claim. Baires v. INS, 856 F.2d 89, 92 (9th Cir. 1988). In the present case, Respondent has made good faith efforts to request an opportunity for relief. In addition, he has clearly demonstrated a reasonable likelihood that he would meet the statutory requirements for relief. See Exhibits, A, B, C, T, including Forms I-589, EOIR-42B, and receipt notices. Respondent intends to present substantial evidence and testimony from

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witnesses who are all located near his home in the San Francisco Bay Area in California. In his original decision to deny change of venue, the IJ states, “The Respondent is under the mistaken belief that his residence in San Francisco, California is sufficient […].” This decision was made in conjunction with a prima facie prejudgment that Respondent was not eligible for relief. In his decision dated August 19, 2014, the IJ again states that “Although the respondent is entitled to a hearing on his fear of returning to Mexico, he has failed to establish that he is eligible for asylum […].” See Exhibit DD, Written Decision of the Immigration Judge. Again, the IJ prejudges Respondent’s claims for relief and bases his determination to deny a change of venue on his opinion regarding Respondent’s eligibility for asylum. In addition, the IJ predetermines that Respondent is statutorily barred from cancellation of removal based on his criminal history. Id. This is an unfounded assumption and in plain error. Respondent has a clear record but for one instance of “following too closely” and one DUI back in 2010 for which he enrolled in rehabilitative programs and complied with all requirements thereafter. See Exhibit H, Documents Corroborating Respondent’s Enrollment in Rehabilitative Programs and Compliance with the Law; Exhibit L, Traffic Citation for “Following Too Closely.” The IJ’s entire decision is based on an analysis of the merits of Respondent’s claims for relief. See Exhibit DD, Written Decision of the Immigration Judge. As a consequence of foreclosing eligibility for relief, the IJ failed to address the hardship on Respondent to travel to Dallas, Texas in order to attend his hearings, present evidence on his behalf, bring witnesses, Counsel’s location in San Francisco and inability to travel to Dallas, and Respondent’s inability to fully present his case at the present venue. This is a clear misapplication of the standard for “good cause shown” for a change of venue pursuant to Matter of Dobere. 8 C.F.R. § 1003.20(b); see Matter of Dobere, 20 I & N Dec. 188 (BIA 1990).

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When balancing the factors, Respondent’s inability to be represented by Counsel, present evidence and witness testimonies could prejudice Respondent’s multiple applications for relief. As such, foreclosing Respondent’s ability to present evidence and witnesses, would substantially interfere with his statutory rights under the Due Process clause of the Fifth Amendment. U.S. Constitution Amend. V.; see also Matter of E-F-H-L-, 26 I&N Dec. 319, 324 (BIA 2014) (“an applicant for asylum or for withholding or deferral of removal is entitled to a hearing on the merits of those applications, including an opportunity to provide oral testimony and other evidence, without first having to establish prima facie eligibility for the requested relief”). Given the above, we respectfully submit that the IJ misapplied the law by confusing the balancing factors for a change of venue and an analysis of the merits, and erred in rejecting Respondent’s applications for relief, thereby violating Respondent’s due process rights.

C. THE IJ COMMITTED LEGAL ERROR WHEN HE FAILED TO APPLY A BALANCING APPROACH WITH RESPECT TO THE LOCATION OF PRO BONO COUNSEL AND RESPONDENT’S CHOSEN REPRESENTATIVE AT NONPROFIT ORGANIZATION, PANGEA LEGAL SERVICES. An individual in removal proceedings “shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.” See Castro-O’Ryan v. INS, 847 F.2d 1307 (9th Cir. 1988); INA § 292. In the present case, Nonprofit Organization, Pangea Legal Services (“Pangea”), located in San Francisco, California, has agreed to represent Respondent on a pro bono basis. Undersigned Counsel, who works at Pangea in San Francisco, has prepared all of the filings, motions and briefings in Respondent’s case.

In order to fully pursue his individual merits hearing,

Respondent will require the presence of his counsel and the support of Pangea. Pangea is located at 350 Sansome Street, Suite 650, San Francisco, California 94104. As

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a nonprofit organization, Pangea represents clients on a low fee and pro bono basis and has limited resources. Pangea is unable to send one of only two current full-time attorneys to Dallas, Texas and expend a full day or two away from the office in order to appear at Respondent’s current or future hearings. The time away from the office would lead to significant hardship on the organization and impair Pangea and Counsel’s ability to assist and provide effective representation to other clients over the course of multiple days of travel and court appearances. In addition, the external costs of travel and accommodations for the representation of one client on a pro bono basis are prohibitively high and cannot be accommodated in Pangea’s budget. Furthermore, Respondent is unable to pay for Counsel’s flight and expenses to appear for his Master Calendar hearings in Dallas, Texas. In consideration of the balancing test, the IJ’s denial of Respondent’s venue motion severely prejudices Respondent. It does not prejudice the Government, who remains unopposed to the change of venue. See Exhibit X, Government’s Non-Opposition to Motion for change of Venue; Exhibit AA, Respondent’s Unopposed Motion for Change of Venue; and the present Motion. The Government has counsel in offices all over the country, including in San Francisco, California. On the other hand, Respondent, with the support of his family who reside in the San Francisco Bay Area, has only found one nonprofit organization and pro bono counsel that is able to represent him in his removal proceedings. Pangea and undersigned Counsel would be unable to represent Respondent if his immigration proceedings were to remain in Dallas, Texas. Respondent would then be required to find counsel in Dallas, a city that is more than 1,600 miles removed from his home. The hardship on Respondent would, thus, be tremendous if venue is not changed. Furthermore, it would improperly interfere with Respondent’s right to be represented by his counsel of choice. See Castro-O’Ryan v. INS, 847 F.2d 1307 (9th Cir. 1988); INA § 292.

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For the reasons stated above, we respectfully submit that the IJ’s denial of Respondent’s change of venue was in error and should be reversed by this Board.

II. THE TREATMENT OF THIS CHANGE OF VENUE MATTER APPEARS TO BE A RECURRING CONCERN RELATED TO THE IMMIGRATION JUDGE’S BIAS, WHO FAILED TO RECUSE HIMSELF FROM ADJUDICATION OF RESPONDENT’S MOTION TO CHANGE VENUE AND THEREBY VIOLATED RESPONDENT’S DUE PROCESS RIGHTS. In his decisions, the IJ does not explicitly state his personal desire to use his discretionary powers to expedite Respondents’ removal in spite of Respondent’s wish to apply for relief, his personal interest in ordering Respondent’s deportation without due process, and his racial bias against individuals like Respondent. But see, Exhibits EE through GG, News Articles evidencing the IJ’s bias, unprofessionalism, badgering of respondents and attorneys, and disregard for due process. Rather, in his decisions, the IJ elaborates on matters unrelated to change of venue and prejudges the meritorious nature of Respondent’s defenses to removal that are normally adjudicated at an individual merits hearing.

See Exhibit DD, Written Decision of the

Immigration Judge, dated August 19, 2014; and Exhibit S, Written Decision of the Immigration Judge, dated May 28, 2014. As such, the IJ’s reasons to deny a change of venue were neither for good cause, nor on the basis of balancing relevant factors related to venue. Here, the IJ failed to recuse himself from all matters relating to Respondent’s proceedings and violated Respondent’s due process rights for the reasons set forth below. Recusal is the process through which a judge is excused or disqualifies himself or herself from presiding over a case in which he or she may have an interest or may be unduly prejudiced. There are certain circumstances where recusal is warranted. The test is an objective one, such that an Immigration Judge should recuse himself or herself “when it would appear to a

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reasonable person, knowing all the relevant facts, that a judge’s impartiality might reasonably be questioned.” Operating Policies and Procedures Memorandum (“OPPM”) 05-02, Procedures for Issuing Recusal Orders In Immigration Proceedings, March 21, 2005; see also Liteky v. U.S., 510 U.S. 540 (1994); Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988); U.S. v. Winston, 613 F.2d 221 (9th Cir. 1980); Davis v. Board of Sch. Comm’rs of Mobile County, 517 F.2d 1044, 1052 (5th Cir. 1975). The BIA has noted three instances that warrant recusal: 1) when an individual demonstrates that he or she was denied a constitutionally fair proceeding; 2) when the Immigration Judge has a personal bias stemming from an “extrajudicial” source; and 3) when the Immigration Judge’s judicial conduct demonstrates “such pervasive bias and prejudice.” Matter of Exame, 18 I&N Dec. 303, 305 (BIA 1982) (quoting Davis v. Board of Sch. Comm’rs of Mobile County, 517 F.2d 1044, supra). The obligation to recuse is not only limited to instances where a party makes a motion, but also places a burden on the Immigration Judge to sua sponte identify those circumstances where recusal may be appropriate. Liteky v. U.S., 510 U.S. at 548. Title 28 of the Code of Feral Regulations codified this doctrine and states in pertinent part: “Disqualifications of justice, judge or magistrate. (a) Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” See 28 U.S.C. § 455. In the present case, the IJ was under a duty to recuse himself from the adjudication of respondent’s motion for a change of venue given his bias and intent to deport Respondent prior to reviewing evidence or balancing the relevant factors.

See Exhibit S and DD, Written

Decisions of the Immigration Judge. A. RESPONDENT WAS DENIED A CONSTITUTIONALLY FAIR PROCEEDING BECAUSE THE IJ DETERMINED THE MERITS OF HIS CASE BEFORE HIS 15  

FIRST MASTER CALENDAR HEARING, AND BEFORE AFFORDING HIM AN EVIDENTIARY HEARING. In support of his Motion for Change of Venue, Respondent submitted written pleadings dated April 23, 2014, stating his intent to file his application for asylum at the next Master Calendar Hearing. Respondent further stated his intent to apply for Cancellation of Removal in said written pleadings, which were filed prior to Respondent’s first Mater Calendar hearing. In his order ruling on the change of venue, the IJ essentially made a determination on Respondent’s eligibility for relief prior to an evidentiary hearing.

See Exhibit S, Written

Decision of the Immigration Judge, dated May 28-29, 2014. The IJ states, “he [Respondent] has failed to demonstrate that he is prima facie eligible for cancellation of removal for certain nonpermanent residents, asylum, withholding of removal or relief under the convention against torture.” Id. The IJ further repeats, “Finally, the Respondent has failed to demonstrate prima facie that he is eligible for withholding of removal or relief under the convention against torture.” Id. At Respondent’s first Mater Calendar hearing on June 30, 2014, the IJ refused to allow Respondent to file his I-589 Application for Asylum and Withholding of Removal in open court. See Exhibit K, Thus, the Respondent was denied a constitutionally fair hearing because the IJ found the Respondent ineligible for relief prior to Respondent’s first Master Calendar Hearing, prior to giving Respondent an opportunity to file his applications for relief, prior to a full review of his applications or supporting documents, and prior to an evidentiary hearing.

B. THE IMMIGRATION JUDGE’S PERSONAL BIAS AGAINST RESPONDENT STEMS FROM AN EXTRAJUDICIAL SOURCE, AS EVIDENCED BY THE IMMIGRATION JUDGE’S REPEATED INTENT TO DEPORT RESPONDENT PRIOR TO A MERITS HEARING.

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In three separate paragraphs of his two-page decision dated May 28-29, 2014, the IJ references his intent to deport Respondent. Id. The IJ refers to Respondent’s Master Calendar hearing as a “deportation hearing” by stating, “It is not required that a deportation hearing be at or near an alien’s place of residence.” [emphasis added]. While conceding that Respondent’s place of residence is in California, the IJ further states, “it is reasonable for the judge to deny, as a matter of discretion, a change of venue where an alien’s deportability and eligibility for relief remain an issue.” The IJ further states, “if the respondent cannot establish that he even appears to be eligible for relief, then at that juncture, ‘there is no need for a change of venue, as it is then appropriate to issue the order of [removal].’ [emphasis added]” Id. It should be noted that all statements above were made by the IJ before the Respondent’s first Master Calendar Hearing, and before Respondent had an opportunity to file his stated applications for relief. These statements clearly indicate the IJ’s intent to order removal in Respondent’s case, rather than adhere to due process of the law. Decision-making on the merits prior to a full and fair evidentiary hearing is a due process violation and a clear indication of bias. Matthews v. Eldridge, 424 U.S. 319 (1976); Reyes-Melendez v. INS, 342 F.3d 1001 (9th Cir. 2003); Zolotukhin v. Gonzales, 417 F.3d 1073, 1075 (9th Cir. 2005); Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1058-59 (9th Cir. 2005). In addition, the IJ refused to rule on Respondent’s renewed motion for a change of venue on June 27, 2014 because it was “untimely.” See Exhibit K, . He further refused to rule on said motion at Respondent’s Master Calendar hearing on June 30, 2014. Id. It was the IJ’s own delay, inaction, and bias that caused the delay in the timely resolution of the question of venue prior to Respondent’s first Master Calendar hearing on June 30, 2014.

The alleged reason of

untimeliness is further evidence of the IJ’s bias given that there is no filing deadline for motions

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for a change of venue in the Statute, the Regulations or the Office of the Chief Immigration (OCIJ) Practice Manual. See generally Immigration and Nationality Act; Title 8 of the Code of Federal Regulations; OCIJ Practice Manual. It appears that the IJ’s bias in this instance was not isolated to Respondent, but rather, that his bias is pervasive. The IJ is reported to have “one of the worst records among all immigration court judges in the country when it comes to orders for removal.” See Exhibit GG, Dallas News, Judge switch will restore immigration court’s balance, February 28, 2014. His denial rate in asylum cases is 90.5%, far higher than the nationwide average of 48.5%, according to Syracuse University’s Transactional Records Access Clearinghouse. See Exhibit EE, Judge Deitrich H. Sims, FY 2009 - 2014, Dallas Immigration Court. The Dallas Observer refers to the IJ as “the city’s most controversial immigration judge. […] He’s known for routinely ignoring the will of the government’s own attorneys, especially when they opt not to pursue deportation. […] he was seen by many as the courtroom bully.” See Exhibit FF, Dallas Observer, Texas Refugees’ Courtroom Nightmare, April 10, 2014. While it is unclear from where the personal bias stems, it appears that the IJ’s intent to deport stems from an extrajudicial source, rather than a judicial one, which requires him to adhere to established due process principles. Given the prejudgments and biases described above, it can be inferred that the IJ is prejudiced in the present matter. Therefore, the IJ should have sua sponte recused himself from the further adjudication of Respondent’s unopposed motion for a change of venue and other proceedings. Ethics Manual for Members of the Board of Immigration Appeals, Immigration Judges, and Administrative Law Judges Employed by the Executive Office for Immigration Review, p. 4; 28 U.S.C. § 455.

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C. THE IMMIGRATION JUDGE’S CONDUCT DEMONSTRATED “PERVASIVE BIAS AND PREJUDICE” AGAINST RESPONDENT. For the reasons cited above, the IJ’s written decision demonstrated significant bias and prejudice.

During Respondent’s Master Calendar hearing on June 30, 2014, at which

Respondent appeared without Counsel, the Immigration Judge refused to accept the filing of Respondent’s written Motion for Telephonic Testimony, written Motion to Accept Late Filing, and I-589 Application for Asylum. See Exhibit K, . Respondent requested the presence of Counsel via telephone, but was merely asked to stand in a row with other Respondents in the courtroom without counsel and was not given an opportunity to hand over documents or to speak. Id. At that same Master Calendar hearing, the IJ refused to rule on Respondent’s Renewed Motion for Change of Venue, filed on June 11, 2014. Id. Rather, he rescheduled Respondent for another Master Calendar hearing at the Dallas Immigration Court, which is more than 1,600 miles from Respondent’s residence, and after conceding that Respondent’s residence is in California by stating, “The Respondent is under the mistaken belief that his residence in San Francisco, California is sufficient […].” See Exhibit S, Written Decision of the Immigration Judge dated May 28-29, 2014. Counsel spoke with multiple other attorneys who have appeared before this IJ by email and phone. See Exhibit K . Each of the attorneys with whom Counsel spoke corroborated the IJ’s pervasive bias, stating, for example, “He never grants COV [change of venue] – especially not to CA,” “He made one of my clients travel from New York City for more than two years worth of hearings,” “He is erratic and unpredictable,” “Sims acts as a prosecutor, rather than a judge,” “Please file a complaint with the chief immigration judge!” Id. We therefore respectfully submit that the IJ’s failure to consider the many factors relating to Respondent’s circumstances, his negative determinations on the merits of Respondent’s claims 19  

prior to an evidentiary hearing, and his stated intent to deport Respondent, demonstrate a pervasive bias and prejudice against Respondent and other similarly situated Respondents. Given the above, the IJ should have recused himself from the adjudication of Respondent’s motions for a change of venue, and by failing to do so, he violated Respondent’s due process rights.

III. THE BIA SHOULD REVERSE THE IJ’S DECISION AND GRANT A CHANGE OF VENUE TO THE SAN FRANCISCO IMMIGRATION COURT, OR, IN THE ALTERNATIVE, VACATE THE IJ’S DECISION AND REMAND TO A DIFFERENT IMMIGRATION JUDGE.

The IJ’s decisions in Respondent’s Motions for a Change of Venue are based on a misunderstanding and misapplication of relevant law. The hardship to Respondent and his family far outweighs any hardship on the Court if venue is changed. In addition, the IJ’s decisions were an abuse of discretion that infringed on Respondent’s due process rights and should, therefore, be reversed by this Board in order to afford him a full and fair hearing near his place of actual residence. In the alternative, Respondent moves the Board to vacate the IJ’s decision and to remand these proceedings to a different immigration judge based on the IJ’s failure to recuse himself sua sponte from the present case despite clear bias. WHEREFORE, based on the foregoing and for good cause shown, Respondent respectfully requests that the venue of these proceedings be changed to San Francisco, California, or, in the alternative, that the Honorable Judge Deitrich H. Sims, be excused from this matter.

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Dated: September 5, 2014 in San Francisco, California

Respectfully Submitted,

__________________________

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PROOF OF SERVICE

On September 5, 2014, I, , served a copy of this RESPONDENT’S BRIEF IN SUPPORT OF UNOPPOSED INTERLOCUTORY APPEAL on the following: Board of Immigration Appeals Office of the Chief Clerk 5107 Leesburg Pike, Suite 2000 Falls Church, VA 20530 Honorable Judge Deitrich H. Sims 1100 Commerce St, Courtroom #6, Suite 1060 Dallas, TX 75242 Department of Homeland Security Office of the Chief Counsel 125 E. John Carpenter Freeway, Suite 500 Irving, TX 75062 I caused each document to be delivered by mail to the addresses listed above.

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