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Bibiano v. Lynch

United States Court of Appeals, Ninth Circuit

August 19, 2016

Fidel Ignacio Bibiano, AKA Bibi Bibiano, Petitioner,
v.
Loretta E. Lynch, Attorney General, Respondent.

          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 ...


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