dissenting:
I dissent on the grounds that in the circumstances of this case, Maldonado-Perez was not afforded a “reasonable opportunity” to present his case for asylum to the immigration judge, and that it was an abuse of discretion to simultaneously deny him a change of venue and a continuance, and to order his deportation in absentia.
First, it is of pivotal significance that Maldonado-Perez’s claim for asylum is not a frivolous one. He came to this country to escape persecution. A subsistence farmer from an area in El Salvador controlled by the forces opposing the government, he alleges that simply living in such an area poses a threat to his life from the military because residents are indiscriminately believed by the government to be supporters of the opposition. This type of danger has indeed been verified by factual findings of a federal district court. Orantes-Hernandez v. Meese, 685 F.Supp. 1488, 1493 (C.D.Cal.1988) (“Salvadoran civilians in the countryside are subjected to repeated bombing attacks and ground sweeps by the military [which] in many cases are brought about because the government has imputed political opinion to the victims based solely on their residence.”). Additionally, I note the total absence of any evidence in this record suggesting that Maldonado-Perez has as*338serted his claim of asylum solely to delay his deportation or remain in the United States illegally; indeed, he conceded his deportability (thus allowing summary deportation proceedings) almost as soon as he was apprehended.
The second fact of importance is that Maldonado-Perez’s move to Washington at some time soon after his release from custody on bond in July 1986, was an entirely lawful one. There were no conditions on this release, and there are no regulations prohibiting travel. Pending his deportation proceeding, he was a registered alien, legally in this country. Indeed, he was among a special class of aliens who are entitled to work authorization. 8 C.F.R. § 274a. 12(c)(8); 8 C.F.R. § 274a.l3(a). At the time of his release, his scheduled hearing date in San Antonio was some fifteen months away; he had been apprehended within a day of entering the United States in Texas and had no prior residence or connections in Texas. It was necessary, and he was entitled, to go somewhere where he could find work or support from friends and relatives. In opposing his later motions for change of venue to Washington, the INS cited concerns about burdens on the Washington docket and delay in the proceedings. But it cannot be that such concerns require a fifteen-month restraint on a penniless alien’s mobility to look for the means of survival. In short, Maldonado-Perez had a legal right to move to Washington and for that move to be given due consideration when his motion for change of venue was subsequently made.
Of course, the INS has a legitimate interest in preventing aliens from using their right to travel to delay or obstruct deportation and asylum proceedings. But there is absolutely no evidence on this record that this petitioner had any such motive; the implications in the majority opinion that petitioner “move[d] from venue to venue” are not borne out in any way by the record. Here, there was no pattern of packing up and moving just prior to a hearing date or dates; no abandonment of a long-time residence; no suggestion that the Washington residence is a sham. Other courts have been more sensitive to the demands of survival on these unfortunate refugees. Cf. Baires v. INS, 856 F.2d 89, 93 (9th Cir.1988) (move from Arizona to San Francisco one month prior to date set for hearing in Arizona not unreasonable for alien bonded out by custody).
Given the clear legitimacy of Maldonado-Perez’s move to Washington, it is in my mind a close case as to whether his original motion for change of venue was correctly denied. Washington, D.C. is, after all, 1700 miles away from San Antonio, Texas. At that point, however, he had no Washington counsel and his original counsel was still in Texas; consequently, the judge’s denial may have been justifiably aimed at avoiding a state of limbo in which proceedings could not go forward at either end. But when the second motion for venue change was submitted, and it became clear that not only Maldonado-Perez’s residence but his counsel as well were in Washington, I believe the government’s administrative interests should not have trumped the petitioner’s statutory interests in a hearing on his asylum claim. To insist that Maldonado-Perez and his new counsel travel this distance — round trip — for a hearing which could equally well be had in Washington1 seems unnecessarily rigid in view of petitioner’s plight, to a point of depriving him of due process.2 Petitioner is clearly indigent, an “illiterate peasant who signs his name with an X,” Brief for Petitioner at 6, fleeing from a country plagued *339by poverty and war. The suggestion that, “well, if he could make it to Washington in the first place, he can make it back again,” has no basis in fact or fairness. See Brief for Respondent at 9; Majority opinion (“Maj. op.”) at 333; Maj. op. at 337. We do not know how he made that first journey in search of a place to live and work. He may have hitchhiked, hopped on freight cars, or spent the remaining money he brought with him from El Salvador. The fact is that he now resides in Washington and he has no means to get back to Texas. The whole nature of venue is to afford litigants a convenient forum. Washington was clearly the convenient forum in this case, and no valid reason appears on the record why his request for a change should not have been granted in a case so important to his future.
These key circumstances lead me to make two points. The first is that the statute itself requires that an alien be given a “reasonable opportunity” to attend his deportation hearing, and that a hearing be held in absentia only if his absence is without “reasonable cause.” 8 U.S.C.A. § 1252(b) (1988). The immigration judge and majority have reduced that statutory right to mean only that the alien be given reasonable notice of the date and place of the hearing. The legislative history clearly shows, however, that Congress intended “opportunity” to mean more than mere “notice.”3
In explaining the “reasonable opportunity” and “reasonable cause” provisions, Congress indicated that the extreme of an in absentia proceeding was intended only as an extraordinary, punitive, measure when failure of the petitioner to attend amounted to “obstruction of justice”:
The bill provides that if any alien has been given a reasonable opportunity to be present at his deportation proceeding and without reasonable cause fails to attend or remain in attendance at the proceeding, the [immigration judge] may proceed to determine the case in like manner as if the alien were present. The committee feels that this provision is of the utmost importance from the standpoint of the best interest of the Government. [Immigration judges] have no authority to punish aliens who fail to appear or remain at deportation hearings, through contempt proceedings or otherwise. Orderly administrative processes have at times been interrupted and subjected to unnecessary delays because aliens, without legitimate cause, refused to attend scheduled hearings or insisted upon leaving at their own pleasure and without other than contumacious reasons. The Government should have authority to proceed to a final decision in the face of such obstructionist tactics.
H.R.Rep. No. 1365, 82d Cong., 2d Sess. 57 (1952), U.S.Code Cong. & Admin.News, 1952, pp. 1653, 1712-1713 (emphasis added). Thus, the authorization for in absentia hearings was directed at those aliens who flouted all “reasonable opportunity” afforded them to attend the hearings. It should not be read to defeat the otherwise strict requirement of the Act that “the determination of deportability in any case must be made solely upon the record made in the proceedings ... at which the alien shall have had reasonable opportunity to be present.” Id., U.S.Code Cong. & Admin. News 1952, p. 1712. The basic policy of the Act strongly supports careful guardianship of the rights of aliens to be given a “reasonable opportunity” under all the circumstances to attend their hearing, and to be represented by counsel of their choice (though not at government expense). Its spirit as well as its letter commands that an indigent alien with a facially legitimate claim to asylum in this country, who evidences no intent to obstruct proceedings, not be deprived of his ability to present his case because he and his counsel are unable to travel 3400 miles round-trip to a hearing, when, with a little give in the system, the *340hearing could be held at his residence.4
Second, petitioner was not only denied a reasonable opportunity to attend his hearing; he was also effectively denied his right to be represented by “such counsel as he shall choose,” at that hearing.5 Cf. Castro-O’Ryan (denial of statutory right to counsel found where proceedings conducted in Arizona although counsel of choice and alleged witnesses were in San Francisco); Chlomos v. U.S. Department of Immigration and Naturalization, 516 F.2d 310 (3d Cir.1975) (proceedings in Florida violated statute where hearing officer could have determined that alien had counsel in New Jersey). The immigration judge knew in this case that the local attorney of record, Mr. Hughes, was in El Salvador at the time of the hearing. It certainly did not satisfy Maldonado-Perez’s statutory right to take judicial notice that “there is a lady attorney who has taken care of the office,” Appendix (“App.”) at 24. There was no indication in the record that this “lady attorney” was even aware of petitioner’s existence much less that she was expected to appear at a hearing during Hughes’ absence.6 Moreover, it was plain to all concerned that Mr. Van Wyke in Washington, having been recently retained by the petitioner, was now representing the petitioner. There had been telephone contact between the INS attorney and Van Wyke and the transmittal letter with the motion for change of venue indicated that the notice of appearance as attorney form G-28 was enclosed, although apparently it was never recorded.
In the end there was no one at the hearing to represent petitioner. The consequences that flowed from proceeding in absentia and without benefit of counsel were dire: petitioner’s asylum claim was dismissed outright because there was no one to make his case. While Maldonado-Perez’s counsel can technically be scored for failing to make an earlier attempt to change venue, in fact he had only been hired a week before. At any rate, it is harsh to visit the substantial, possibly tragic, consequences of that error in timing by a pro bono attorney on petitioner.7
*341Thus I would find in the peculiar circumstances of this case that it was an abuse of discretion to deny the final change of venue motion. I would also find that it was an abuse of discretion to deny petitioner a continuance once the second motion for change of venue had been denied. While no written motion for a continuance was made, the transcript of the hearing indicates that the INS trial attorney stated that petitioner “would be seeking a continuance.” App. 23. The trial attorney’s notes for the day also indicate that the “I.J. [Immigration Judge] was notified by T.A. [trial attorney] as to atty Van Wyke’s request for continuance and c/v [change of venue],” and that the immigration judge “denied respondent’s [Maldonado-Perez’s] request for continuance.” The immigration judge himself apparently believed that he had been asked to rule on a continuance or else why did he discuss at some length his rationale for granting or denying continuances? See App. 23-24.
The consequences attendant upon the denial of the motion to change venue were severe. These consequences should properly have entered into the decision of whether or not to continue the case. Additionally, “in deciding whether denial of the alien’s request [for either venue change or continuance] would violate his statutory right to a reasonable opportunity to present evidence in his own behalf, the judge must consider the nature of the evidence to be presented and its importance to the alien’s claim.” Baires, supra, at 92. No consideration of that factor either appears to have taken place here. Moreover, as judicial officers bound to protect the statutory and constitutional due process rights of these disadvantaged aliens, it would seem that the immigration judge could be held to the minimal burden of at least inquiring of attorney Van Wyke how he wished to proceed after denial of the venue change or of postponing the asylum-deportation hearing for a few days until contact with Van Wyke was made; alternatively, the “lady attorney” the judge deemed to be standing in as local counsel could have been contacted; the INS trial attorney, who must have been aware of the seriousness of the situation, having spoken twice on the phone to Van Wyke (leaving the impression with Van Wyke that he was supportive of the motion to change venue), might be expected to call Van Wyke after the motion for venue was denied. Cf. Chlomos, supra, at 313 (“A telephone call by the hearing officer or the government trial attorney would have revealed the fact that a lawyer had entered his appearance for Chlomos.”). Yet none of these simple measures were taken to afford Maldonado-Perez his “reasonable opportunity” to attend or be represented at the hearing. For want of a phone call, the deportation proceeded in absentia.
This case, with its intricate fact pattern, ultimately turns on notions of fundamental fairness toward the stream of not-always-welcome refugees fleeing from South of the Border to the promises of “El Norde.” The government acknowledgedly has legitimate interests in preventing the obstruction of its administrative procedures by their inevitable movement around the country. But where there is no evidence that obstruction is afoot and where the INS’ interest in a particular venue reflects only standard concerns about minor delays, it runs counter to the statutory purpose and to fundamental fairness to deny an alien the opportunity to present a facially legitimate claim to asylum. This was in my view such a case. Maldonado-Perez could not appear in person; his pro bono counsel tried by imperfect means to get a change of venue or a continuance. The burden to the court or the INS of providing either was minimal; without either this petitioner had no “reasonable opportunity” to appear or be represented. I therefore dissent from upholding the decision in absentia to dismiss his asylum claim and deport him.
. Petitioner had conceded deportability; there would have been no need for witnesses such as the INS personnel who had apprehended petitioner. The only issue in the hearing would have been petitioner’s claim to asylum, which would have turned principally on his own showing.
. The Supreme Court has stated, “There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty or property without due process of law. [ ] Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection.” Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976).
. Indeed, Congress provided separately for the provision of notice, requiring the Attorney General to promulgate regulations providing "notice, reasonable under all the circumstances, of the nature of the charges against [the alien] and the time and place at which the proceedings will be held.” 8 U.S.C.A. § 1252(b)(1) (1988).
. The majority's reliance on Patel v. INS, 803 F.2d 804 (5th Cir.1986) is misplaced. Patel was not an asylum case; there was no indication that the alien in that case, who had twice violated terms of his stay in the United States, was attempting to do anything but delay deportation. Patel did not claim to be unable to travel to his hearing; indeed it appears that the hearing was to be held near Patel’s residence. Patel sought not a change of venue but rather a continuance merely because his counsel claimed to need more time to prepare and purportedly had a scheduling conflict, of which the court found no evidence. Patel gave no reasons for failing to appear himself. These unique facts clearly meet the congressional objective of allowing in absentia hearings as a means to "punish aliens who fail to appear” at their hearing for no good reason. H.R.Rep. No. 1365, supra, at 57, U.S. Code Cong. & Admin.News 1952, pp. 1712-1713.
. 8 U.S.C.A. § 1362 (1970) provides:
Right to counsel: In any exclusion or deportation proceedings before a[n] [immigration judge] and in any appeal proceedings before the Attorney General from any such exclusion or deportation proceedings, the person concerned 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.
"The legislative history of this provision 'confirms that Congress wanted to confer a right." Castro-O’Ryan v. U.S. Department of Immigration and Naturalization, 847 F.2d 1307, 1312 (9th Cir.1988).
. The majority is "perplexed” as to why one of the three attorneys did not appear at the hearing. Maj. op. at 333. The record, however, shows one was out of the country; his alleged "replacement,” likely knew nothing of the case, for both were of the (correct) view that the case had been taken over by attorney Van Wyke in Washington. For his part, Van Wyke expected that the motion to change venue, which he had reason to believe was unopposed by the government, would be granted but, more to the point, as pro bono counsel he was unable to shoulder the expense of a round-trip to San Antonio. It cannot be ignored that a primary basis for the venue motion was lack of funds to make such a trip.
. As emphasized previously, there is absolutely no evidence that petitioner was engaging in any type of dilatory behavior that characterizes those cases in which courts have upheld use of the in absentia sanction. See Patel, supra n. 4; Shah v. INS, 788 F.2d 970 (4th Cir.1986); United States v. Dekermenjian, 508 F.2d 812 (9th Cir.1974). Compare Baires, supra; Castro-O’Ryan, supra; Chlomos, supra. There can therefore be no concern that the fair result in this case would diminish the power of the in absentia sanction to deter contumacy.