Argued
and Submitted December 8, 2015 Pasadena, California
On
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A070-818-237
Victoria Dorfman (argued) and Lauren Pardee, Jones Day, New
York, New York; Keren Zwick and Claudia Valenzuela, National
Immigrant Justice Center, Chicago, Illinois; for Petitioner.
Brendan P. Hogan (argued); Cindy S. Ferrier, Assistant
Director; Office of Immigration Litigation, United States
Department of Justice, Washington, D.C.; for Respondent.
Before: Harry Pregerson, A. Wallace Tashima, and Consuelo M.
Callahan, Circuit Judges.
SUMMARY[*]
Immigration
The
panel remanded petitioner Bibi Bibiano's case to the
Board of Immigration Appeals to revisit the merits of her
reasonable fear of persecution should she be returned to
Mexico, and denied the government's motion to transfer
the case to the Eleventh Circuit.
Resolving
an open question, the panel held that the venue provision in
8 U.S.C. § 1252(b)(2) is not jurisdictional. The panel
also held that this court has subject matter jurisdiction
over Bibiano's claim although venue is proper in the
Eleventh Circuit, where her reinstated removal order became
final. The panel held that in such a situation, federal
circuit courts have inherent transfer authority and need not
rely on 28 U.S.C. § 1631 for statutory authority.
The
panel held that given the unique circumstances it was in the
interests of justice to keep the case in this court rather
than transfer it to the Eleventh Circuit.
Judge
Callahan concurred fully with the majority that §
1252(b)(2)'s venue provision is not jurisdictional and
that this court has subject matter jurisdiction, and she also
concurred with the decision to remand to the BIA. Judge
Callahan wrote separately to emphasize her concern that the
decision should not be read to encourage forum shopping.
OPINION
PREGERSON, Circuit Judge:
Petitioner
Bibi Bibiano is a Mexican citizen and transgender woman.
Because she did not conform to gender norms in Mexico, she
was continually abused, beaten, and harassed. After one
tormentor threatened to kill her, she fled to California and
applied for asylum in 1994. Her application was not approved,
however, and Bibiano was placed in removal proceedings. When
she did not appear for her scheduled hearing in Los Angeles,
an immigration judge ("IJ") issued an in absentia
removal order against her. Fifteen years later, Bibiano was
apprehended in South Carolina and removed under the Ninth
Circuit in absentia removal order. After returning to the
U.S. unlawfully, Bibiano was apprehended and a reinstated
removal order, based on her previous in absentia removal
order, was filed against her in North Carolina. Her request
for withholding of removal was denied by an IJ in Georgia who
found that she did not have a reasonable fear of future
persecution or torture if returned to Mexico. The Board of
Immigration Appeals ("BIA") upheld the IJ's
ruling, and Bibiano petitioned for review with this court.
We do
not decide the merits of Bibiano's case.[1] Rather, the issue
at hand is jurisdictional-whether Bibano's petition
properly falls under the Ninth Circuit's judicial
authority. Federal circuit courts have subject matter
jurisdiction over final orders of removal, 8 U.S.C. §
1252(a)(1), with venue proper for such review in the circuit
where "the immigration judge completed the proceedings,
" 8 U.S.C. § 1252(b)(2). Bibiano's in absentia
removal order was issued by an IJ in the Ninth Circuit, but
venue is ultimately proper in the Eleventh Circuit where the
IJ completed proceedings that finalized Bibiano's
reinstated removal order. The government asks us to transfer
Bibiano's case to the Eleventh Circuit pursuant to the
transfer statute, 28 U.S.C. § 1631.
We have
yet to decide whether the venue provision in §
1252(b)(2) is jurisdictional, i.e., whether improper venue
strips us of subject matter jurisdiction, requiring dismissal
or transfer of the case. We join the noncontroversial
holding-shared by the nine other circuits which have
addressed this issue in detail-that § 1252(b)(2)'s
venue provision is not jurisdictional. As a result, we have
subject matter jurisdiction over Bibiano's claim even if
venue is not proper here. Because of the unique circumstances
of this case discussed below, we keep Bibiano's petition
in the Ninth Circuit in the interests of justice. We remand
to the BIA for further proceedings.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner
Bibi Bibiano is a Mexican citizen and transgender woman.
Because of her sexual orientation and gender identity,
Bibiano did not conform to gender norms in Mexico. As a
result, Bibiano was harassed, beaten, and sexually assaulted.
After one persistent tormentor threatened to kill her in
1994, Bibiano fled to California and sought asylum. An asylum
officer denied her application and referred her to an IJ for
removal proceedings. Bibiano moved to North Carolina but did
not notify the court of her change of address and failed to
receive notice of ...