Fidel Bibiano v. Loretta E. Lynch
834 F.3d 966
9th Cir.2016Background
- Bibi Bibiano, a Mexican transgender woman, fled to the U.S. and sought asylum in 1994 after threats and assaults in Mexico; an IJ in the Ninth Circuit entered an in absentia removal order in 1995 after she missed a hearing.
- In 2009 Bibiano was removed to Mexico under that in absentia order, then reentered the U.S. unlawfully and was taken into DHS custody in 2011.
- DHS filed a Notice of Intent to Reinstate the 1995 removal order; Bibiano expressed fear of return and was given a reasonable-fear screening that an asylum officer found credible and referred to an IJ.
- An IJ in the Eleventh Circuit (Atlanta) conducted reasonable-fear proceedings and denied withholding of removal and CAT protection; the BIA upheld that decision applying Eleventh Circuit law.
- Bibiano filed a petition for review in the Ninth Circuit (where the original in absentia order originated), raising venue and review issues; the government sought transfer to the Eleventh Circuit under 28 U.S.C. § 1631.
- The Ninth Circuit held it had subject-matter jurisdiction despite improper venue under 8 U.S.C. § 1252(b)(2), declined to transfer to the Eleventh Circuit in the interests of justice, and remanded to the BIA for reconsideration of the reasonable-fear/merits issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1252(b)(2)’s venue rule is jurisdictional | §1252(b)(2) places venue in Ninth Circuit because original IJ issued the in absentia order; venue therefore supports Ninth Circuit jurisdiction | Venue should be where the IJ completed proceedings rendering the reinstated removal order final (Eleventh Circuit); lack of venue requires transfer | §1252(b)(2) is non-jurisdictional; it does not strip subject-matter jurisdiction from Ninth Circuit |
| Proper venue for petition for review | Venue should follow the underlying in absentia removal order issued in Ninth Circuit | Venue properly lies in Eleventh Circuit because an IJ there completed reasonable-fear proceedings that finalized the reinstated removal order | Venue is proper in the Eleventh Circuit (where IJ completed proceedings rendering reinstated order final) |
| Whether court should transfer the case to the Eleventh Circuit under transfer authority | Bibiano implicitly argued against transfer given briefing and equitable considerations | Government requested transfer under §1631 to cure improper venue | Court denied transfer: exercised inherent authority to retain case because transfer was not in interests of justice (delay, resources, and good-faith confusion over venue) |
| Remedy and next step | Urged remand for merits consideration of reasonable-fear and CAT claims | Government conceded remand to BIA was appropriate and requested further factual/analytical detail on country conditions and CAT acquiescence | Court remanded to the BIA to revisit reasonable-fear and CAT analyses and left choice of controlling circuit law to the BIA on remand |
Key Cases Cited
- Kwai Fun Wong v. Beebe, 732 F.3d 1030 (9th Cir.) (discussing jurisdictional labels and statute interpretation)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (U.S. 2006) (statutory requirements are jurisdictional only if Congress clearly says so)
- Moreno-Bravo v. Gonzales, 463 F.3d 253 (2d Cir. 2006) (treating §1252(b)(2) as non-jurisdictional venue rule)
- Sorcia v. Holder, 643 F.3d 117 (4th Cir. 2011) (same)
- Avila v. U.S. Attorney Gen., 560 F.3d 1281 (11th Cir. 2009) (same)
- Khouzam v. Attorney Gen., 549 F.3d 235 (3d Cir. 2008) (same)
- Georcely v. Ashcroft, 375 F.3d 45 (1st Cir. 2004) (same)
- Dornbusch v. C.I.R., 860 F.2d 611 (5th Cir. 1988) (transfer/venue principles and broad use of "jurisdiction" in transfer context)
- Union Pacific R.R. Co. v. Brotherhood of Locomotive Engineers, 558 U.S. 67 (U.S. 2009) (cautioning against imprecise use of "jurisdiction")