OWEN, District Judge:
Oneil Patrick Lovell petitions this Court to review a January 13, 1994 order of the Board of Immigration Appeals (BIA) denying him a waiver of deportation and ordering him deported to Guyana. Petitioner is serving a five year federally-imposed sentence in the Big Spring Correctional Center, Big Spring, Texas, on a plea of guilty to drug distribution. He contends that his motion before an immigration judge at Big Spring to change the venue of his deportation hearing to New York City was summarily and improperly denied, thus prejudicing his application for a discretionary waiver of deportation pursuant to § 212(c) of the Immigration and Nationality Act.
Petitioner, a native of Guyana, was lawfully admitted to the United States in 1986 when he was thirty years of age. In 1991, he pleaded guilty in a federal court in North Carolina to the distribution of crack cocaine and aiding and abetting such distribution, and received the said sentence of five years. On November 4, 1992, pursuant to the Immigration and Nationality Act, the Immigration and Naturalization Service (INS) commenced deportation proceedings against petitioner as an alien convicted of an aggravated felony and a controlled substance violation. 8 U.S.C. §§ 1251(a)(2)(A)(iii), 1251(a)(2)(B)(i).
Petitioner's deportation hearing began on February 4, 1993, at the Big Spring Correctional Facility in Big Spring, Texas, the place of his incarceration. At the first session, petitioner requested time to obtain an attorney and a change of venue to New York. Immigration Judge Jeffrey Zlatow ruled that he could not consider the venue issue because petitioner was not in the custody of the Immigration and Naturalization Service, stating: "Sir, where you are incarcerated is up to the federal Government [Bureau of Prisons] and they have designated your present facility. You're not in Immigration custody. So I can't consider this at this point." He then adjourned the hearing so petitioner could secure representation. One week later, petitioner filed a written motion for a change of venue, arguing that a transfer to New York would allow him to obtain counsel and would enable his family, friends and a former employer to testify to his "good conduct since he first came to the United States." Petitioner's wife, mother and siblings reside in the New York area. Petitioner has a child in Guyana by another woman to whom he sends somewhat regular support.
When the deportation hearing resumed on March 10, 1993, Judge Zlatow denied petitioner's motion, again explaining that a change of venue was precluded because petitioner was in the custody of the Federal Bureau of Prisons, and the hearing was adjourned to April 14 because petitioner had not secured counsel. After a further adjournment at the request of the INS, the hearing resumed on June 16, 1993. Petitioner, who still did not have counsel, explained to Judge Zlatow that he was unable to afford the fee charged by the lawyer to whom he had been referred. The judge, however, proceeded with the hearing, determining that the INS had by clear and convincing evidence established petitioner's deportability as an aggravated felon and controlled substance offender. Petitioner, being asked, designated Guyana as the country to which he wanted to be deported in the event of deportation. He then applied for discretionary relief from deportation pursuant to § 212(c) of the Immigration and Nationality Act, and Judge Zlatow adjourned the hearing so petitioner could gather evidence in support of this application.
Petitioner argues that his motion for a change of venue was improperly denied. Venue lies at the Office of the Immigration Judge where the charging document is filed. 8 C.F.R. § 3.20(a). However, an immigration judge may change venue "for good cause" upon motion by one of the parties. Id. at § 3.20(b). Good cause is determined by balancing such factors as administrative convenience, the alien's residence, the location of witnesses, evidence and counsel, expeditious treatment of the case, and the cost of transporting witnesses and evidence to a new location. See, e.g., Matter of Rahman, 1992 WL 195808, 1992 BIA LEXIS 15 (1992); Baires v. INS, 856 F.2d 89, 92-93 (9th Cir. 1988); Matter of Velasquez, 19 I. & N.Dec. 377, 382-83 (BIA 1986). A decision regarding venue is discretionary, and is reviewable only for abuse of discretion. Chow v. INS, 12 F.3d 34, 39 (5th Cir.1993).
Petitioner contends that Judge Zlatow abused his discretion by concluding that he had no power to consider the issue, which necessarily precluded his considering any of the factors relevant to a finding of good cause. We agree and conclude Judge Zlatow was in error. While the INS contends in support of Judge Zlatow's determination that the Immigration and Nationality Act requires expedited deportation proceedings for aliens who, like petitioner, have been convicted of aggravated felonies,
This, however, does not end the inquiry in this case because petitioner must still show prejudice resulting from Judge Zlatow's failure to consider his motion for a
We note that the opinion is somewhat disingenuous, since there is no indication in the record that Judge Zlatow reasoned as the Board claims he did. Nevertheless, we are satisfied that the Board did review the entire record and determined in a sufficient exercise of discretion that a balancing of factors militated against a venue change, as we now discuss.
Since the INS's change-of-venue regulation does not reflect a fundamental right derived from the Constitution or Federal law, an incorrect decision under that regulation would entitle petitioner to a remand only if he can show that it caused him prejudice. Waldron v. INS, 17 F.3d 511, 518 (2d Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 572, 130 L.Ed.2d 489 (1994). In order to demonstrate prejudice, petitioner must show that the denial of the venue change affected either the outcome or the overall fairness of the 212(c) proceeding. Id. at 519. When considering a 212(c) application, an immigration judge "must balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of section 212(c) relief appears in the best interests of this country." Matter of Marin, 16 I. & N. Dec. 581, 584-85 (BIA 1978); accord Douglas v. INS, 28 F.3d 241, 243-44 (2d Cir.1994). Adverse factors include: the nature and circumstances of the exclusion ground at issue, the presence of additional immigration law violations, the existence of a criminal record and its nature, recency and seriousness, and the presence of other evidence indicative of an alien's bad character or undesirability as a permanent resident. Marin, 16 I. & N. Dec. at 584-85. Favorable considerations include: family ties within this country, residence of long duration in this country, evidence of hardship to the alien and alien's family upon deportation, Armed Forces service, employment history, community service, property or business ties, evidence attesting to good character, and, in the case of one convicted of criminal conduct, proof of genuine rehabilitation. Id. Where, as in this case, an alien is deportable by reason of two narcotics convictions, the alien must make a showing of unusual or outstanding countervailing equities to obtain a waiver of deportation. Correa v. Thornburgh, 901 F.2d 1166, 1170 (2d Cir.1990).
In denying petitioner's 212(c) application, Judge Duck undertook the required balancing of factors and considered thirteen factors in total,
Given the foregoing, petitioner's contention that the denial of the venue change prejudiced his 212(c) application by impairing his ability to provide evidence of the favorable factors of family ties and employment history — and thus, prior good conduct — fails. Both Judge Duck and the Board of Immigration Appeals gave full credit to the very factors petitioner claims he was hindered from demonstrating. In addition, one of the two factors, the history of employment, was diminished by a failure to pay income taxes, and the factors at issue were only two of nine potentially positive factors considered by Judge Duck. Neither he nor the Board found any evidence of the other seven factors which would have been deemed favorable, and petitioner does not claim that a change of venue would have adduced evidence of these factors. Moreover, due to his drug convictions, it was incumbent upon petitioner to demonstrate unusual or outstanding equities, and the Board specifically stated that even considering petitioner's family ties to be an outstanding equity, he still did not warrant a waiver of deportation. Accordingly, petitioner has made no showing that having any family member or employer testify in person
We find petitioner's remaining contentions to be without merit. Only one requires discussion. Petitioner contends that the denial of a change of venue infringed his right to present evidence. While clearly there is such a right,
Given all the foregoing, the petition is denied.