Sarr v. Garland
50 F.4th 326
2d Cir.2022Background
- Petitioner Mamadou Amadou Sarr, a Mauritanian national, was detained in Louisiana after an NTA that identified Jena, LA (Richwood facility) as the immigration court location where proceedings would be held.
- Sarr conceded removability and applied for asylum, withholding, and CAT protection; his individual merits hearing occurred April 13, 2020 via video teleconference (VTC): Sarr in Louisiana, the IJ in New York, counsel/ interpreter telephonic.
- The IJ denied relief in a written decision that cited and primarily applied Fifth Circuit precedent; the BIA affirmed and noted the proceedings were completed at Richwood, LA.
- Sarr filed a petition for review in the Second Circuit arguing venue lay in Buffalo (where the IJ sat remotely); the government moved to transfer to the Fifth Circuit asserting venue lay where the proceedings commenced (Louisiana).
- The Second Circuit panel held that, for VTC hearings, an IJ "completes" proceedings where they commenced absent a change of venue (so venue is proper in the Fifth Circuit), but exercised discretion to retain the case in the Second Circuit.
- The court denied Sarr’s stay of removal: he failed to show a strong likelihood of success on the merits or irreparable harm absent a stay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper venue under 8 U.S.C. §1252(b)(2) for VTC hearing | Sarr: proceedings were completed where the IJ sat (Buffalo, NY), so venue is Second Circuit | Government: proceedings were completed where they commenced/docketed (Louisiana), so venue is Fifth Circuit | Court: "completed" occurs where proceedings commenced absent evidence of a venue change; Fifth Circuit is the proper venue |
| Effect of administrative-control court listings and hearing notices | Sarr: Buffalo/Batavia headings and transcript location support Second Circuit venue | Government: administrative-control listings do not change venue; no motion to change venue under 8 C.F.R. §1003.20 | Court: administrative-control court citations didn’t effect a venue change; docketing controls |
| Whether petition should be transferred despite improper venue | Sarr: asked court to retain case (filed in Second) | Government: move to transfer petition to Fifth Circuit | Court: declined to transfer—exercised discretion to retain due to understandable confusion, long pendency, and counsel location |
| Stay of removal standard applied to Sarr | Sarr: BIA applying Fifth Circuit law was fundamentally unfair (due process) and removal would moot review | Government: opposed stay; argued Sarr not likely to succeed and removal not irreparable | Court: denied stay—Sarr failed to show likelihood of success or irreparable harm; removal does not preclude pursuing review from abroad |
Key Cases Cited
- Nken v. Holder, 556 U.S. 418 (2009) (four-factor framework for stays of removal)
- Hilton v. Braunskill, 481 U.S. 770 (1987) (stay standard factors for injunctions/stays)
- Moreno-Bravo v. Gonzales, 463 F.3d 253 (2d Cir. 2006) (venue is separate from jurisdiction; transfer discretionary)
- Ramos v. Ashcroft, 371 F.3d 948 (7th Cir. 2004) (noting ambiguity of §1252(b)(2) as applied to VTC)
- Thiam v. Holder, 677 F.3d 299 (6th Cir. 2012) (urge for clarification of venue rules for VTC proceedings)
- Sorcia v. Holder, 643 F.3d 117 (4th Cir. 2011) (composite-factor approach to venue in VTC context)
- Maldonado-Padilla v. Holder, 651 F.3d 325 (2d Cir. 2011) (discretionary retention of misfiled petitions)