opinion be given." We fail to read into this letter, as counsel alleges, an attempt by the District Director to sway the Department of State from issuing a favorable recommendation towards the alien's request for political asylum.

When counsel sought to transfer the case to Newark, New Jersey, the District Director, Buffalo, on August 10, 1976, replied that such request should be directed to the immigration judge. The record contains a letter from Gordon W. Sacks, immigration judge, dated August 19, 1976, denying the applicant's request for a change in venue of the deportation proceedings. Judge Sacks stated, "It is clear from the transcript that evidence presented before me is consequential in any application for adjustment of status under Section 245 of the Immigration and Nationality Act which might be presented on your client's behalf. Therefore, such application may not be considered by a different judge." Judge Sacks concluded, "I, therefore, deny your request for change of venue."

Following this on August 20, 1976, the demand notice for the alien to appear at Buffalo, New York, on September 7, 1976, was sent to the obligor. Notices of the deportation hearing scheduled at Buffalo on September 7, 1976, were also sent to the alien and counsel. The record reflects that the alien failed to appear as directed on September 7, 1976, and the District Director subsequently declared the bond breached on the aforementioned date.

Counsel has set forth the extensive argument that the refusal by the District Director, Buffalo, and Immigration Judge Sacks to transfer the deportation proceedings to Newark, New Jersey, was unreasonable. Counsel argues that the demand for the alien's appearance in Buffalo was in violation of due process, in violation of law, and therefore the deportation hearing was illegally convened. Counsel alleges, for these reasons, the District Director was estopped from declaring the bond breached.

Dicta have supported that the place of the deportation proceeding is a matter of venue rather than jurisdiction. There is no clear mandate in either the statute or the regulations as to where a hearing should be held. Ordinarily, the better procedure would be to hold the hearing in the district of the alien's residence or place of arrest. La Franca vs. INS, 413 F.2d 686 (2d Cir. 1969). The court held in a case where the respondent who moved from Duluth, Minnesota, to New York was found to not be prejudiced because INS refused to transfer the deportation hearing to New York. It was held that the place where the defendant was living was a proper place to file and hear the deportation proceeding. The court held, "In any event, we cannot say that the immigration authorities' choice of time and place was unreasonable or arbitrary." U.S. vs. Heikkinen, 240 F.2d 94 (7th Cir. 1957).

A possible abuse of discretion was implied by the court when a deportation hearing could have been transferred with little or no inconvenience to the Government. The court stated: "While venue is not clearly delineated in statute dealing with deportation of aliens, a hearing for deportation of alien would be appropriate in New Jersey and not in Florida where he was found by the Immigration officer, where New Jersey was the alien's permanent residence, witnesses were available in New Jersey, the alien's opportunity to establish his cooperation with the government in criminal prosecution was there, and likelihood that the alien's lawyer who had detailed knowledge of circumstances could not be present for hearing in New Jersey." Cholomos v. U.S. Department of Justice, 516 F.2d 310 (3rd Cir. 1975).

In the matter at hand the immigration judge's decision stated that evidence previously presented before him in this case would be consequential in any application for adjustment of status under section 245 which might be presented by the applicant. In his letter the immigration judge specifically denied a change of venue because of prior testimony made before him, germane to the alien's request for permanent resident status which Judge Sacks contemplated would be introduced during subsequent proceedings. In this same vein, the trial attorney on August 19, 1976, stated by memorandum to Judge Sacks that the Service offered no objection to counsel's request to transfer the file to Newark, New Jersey, solely for the purpose of respondent's testimony and depositions of the witnesses who live in the Newark and New York area.

We find the circumstances here distinguishable from Cholomos, supra. Here, the Service offered no objection to transferring the record to Newark to permit testimony by the alien and his witnesses. Judge Sacks retained jurisdiction for final determination at Buffalo only for reasons outlined in his denial of the request for change of venue.

It was held in the Matter of Seren, Interim Decision 2472, that the authority of the immigration judge under 8 C.F.R. 242.8(a) to take such action as "may be appropriate to the disposition of the case" encompasses the power to rule on a motion to change venue of a deportation. proceeding. On this same point, the BIA concluded in the Matter of K-, 5 I. & N. Dec. 347, that the power to rule on the challenge by counsel of the qualifications of the hearing officer on the ground of prejudice and bias and for change of venue on the same ground lies solely with the hearing officer, and in the event of a ruling adverse to counsel, the hearing officer may direct the hearing to proceed to a conclusion.

Judge Sacks' action were accordant with the judiciousness of Matter of Seren, and Matter of K-, supra. We also find that the District Director properly deferred to the immigration judge the alien's request to transfer his deportation hearing since the District Director lacked the

power to change or deny a request to change the place of the hearing. Counsel seeks to adjudge a finding in this case that the District Director's request for the alien to appear at deportation proceedings in Buffalo on September 7, 1976, was illegal and contrary to law and regulation and, therefore, abrogated the obligor's responsibility to produce the alien at said time and place. Counsel follows with the argument that the bond was improperly declared breached by the District Director.

Based on a thorough consideration of the evidence of record, including those representations made on appeal and in oral argument, we find that the obligor has not substantiated that the demand for the alien's appearance before an Immigration officer at Buffalo, New York, on September 7, 1976, in conjunction with his deportation proceeding was illegal or outside of law and regulation. We find that a proper and timely demand was made upon the obligor to produce the alien. The conditions of the bond are specific. The obligor agreed to surrender the alien upon each and every request of the Service.

Delivery bonds are violated if the obligor fails to cause the alien to be produced to the immigration officer upon each and every request until deportation proceedings in his case are finally terminated or until the alien is actually accepted by such immigration officer for detention or deportation. The obligor failed to produce the alien to this Service on September 7, 1976, in accordance with the demand made under the terms of the Immigration bond. The bond is in contract between the United States and the obligor and the surety cannot question his liability under the bond if it is established that the violation occurred. U.S. v. Olson, 42 F.2d 1070 (1931). The liability on the part of the obligor which has arisen cannot be waived. U.S. v. Rosenfeld, 109 F.2d 908 (1940).

Counsel's argument, although extensive, does not serve to overcome the substantial violation of the conditions of the bond within the purview of 8 C.F.R. 103.6(e) or relieve the obligor of her responsibility as specified in the bond agreement. Accordingly, the appeal will be dismissed.

IT IS ORDERED that the appeal be and same is hereby dismissed.

MATTER OF ANSELMO

In Visa Petition Proceedings

A-34394164

Decided by Board March 18, 1977

(1) The beneficiary of the instant second-preference visa petition filed under section 203(a)(2) of the Immigration and Nationality Act had previously been admitted to the United States as a lawful permanent resident as the beneficiary of an immediate relative visa petition filed by a U.S. citizen spouse. Subsequently, she indicated in a sworn statement to the Service that the marriage on which the prior immediate relative visa petition had been based and granted was a fiction, had never taken place, and that she had never met nor married the man listed in the petition as her spouse.

(2) The District Director denied the instant second-preference petition under section 204(c) of the Act on the ground that the previous petition had been granted on the basis of a marriage entered into to evade the immigration laws, and it did not appear that he had considered the bona fides of the second marriage.

(3) Since no marriage took place in connection with the filing of the previous immediate relative petition, section 204(c) was inapplicable, and the record will be remanded to the District Director for consideration of the bona fides of the second marriage and entry of a new decision.

(4) Matter of Concepcion, Interim Decision 2529 (BIA 1976), followed.

ON BEHALF OF PETITIONER:

William J. Lawler, Esquire
Suite 320

615 Montgomery Street

San Francisco, California 94111

BY: Milhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members. Board Member Torrington dissenting.

The lawful permanent resident petitioner applied for preference status for the beneficiary as his spouse under section 203(a)(2) of the Immigration and Nationality Act. In a decision dated March 29, 1976, the District Director denied the petition and the petitioner has appealed from that denial. The record will be remanded to the District Director for further proceedings.

Both the petitioner and the beneficiary are natives and citizens of the Philippine Islands. The beneficiary had previously been accorded immediate relative status as the spouse of a United States citizen and had entered the United States as a lawful permanent resident on July 14,

1973. In a sworn statement to the Service, dated October 31, 1974, the beneficiary admitted that the marriage upon which the first visa petition had been based was a fiction and that she had neither met nor married the man listed as her spouse. On February 22, 1975, the beneficiary married the present petitioner who subsequently filed another visa petition in her behalf. The District Director concluded that the beneficiary had previously been accorded immediate relative status as the spouse of a United States citizen by reason of a marriage entered into in order to circumvent the immigration laws. Relying on section 204(c) of the Act, the District Director denied the petition.

Section 204(c) states, in pertinent part, that

... no petition shall be approved if the alien has previously been accorded a nonquota or preference status as the spouse of a citizen of the United States. . ., by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws. (Emphasis supplied.)

The beneficiary has previously been accorded immediate relative status as the spouse of a United States citizen. However, she was accorded that status, according to her sworn statement, on the basis of falsified documents, not on the basis of a marriage entered into for the purpose of evading the immigration laws. Although the beneficiary benefited from the Service determination that a valid marriage existed, a marriage did not in fact exist. In the absence of an actual marriage, section 204(c) does not apply. Matter of Concepcion, Interim Decision 2529 (BIA September 8, 1976).

We note from the record that, at present, the beneficiary apparently possesses the very status that ultimately would be accorded her should the visa petition be approved. Although she has admitted that her present lawful permanent resident status was fraudulently obtained, the record is silent as to whether the Service has as yet instituted deportation or rescission proceedings. Should the Service take such action, the beneficiary would then be eligible, as an "alien" within the meaning of section 245 of the Act, to seek to adjust her status to that of a permanent resident alien. See Matter of Calilao, Interim Decision 2555 (BIA February 7, 1977). Under 8 C.F.R. 245.1(d), an applicant for preference status is not eligible for adjustment of status unless he or she is the beneficiary of a valid unexpired visa petition filed in accordance with 8 C.F.R. 204 and approved to accord such status. Accordingly, while the need for this visa petition has not been conclusively demonstrated, in view of the beneficiary's apparent deportable status, and the possibility that approval may be needed as a prerequisite for adjustment, we would normally entertain the petition on its merits.

However, the District Director based his decision on section 204 (c), and it does not appear that he considered whether the beneficiary's present marriage is bona fide. Therefore, on remand, the District Direc