THIAM v. Holder
2012 U.S. App. LEXIS 8670
6th Cir.2012Background
- Thiam, a Mauritanian-born black Wolof woman, fled Mauritania after alleged abuse and lived in Senegal for ~14 years before arriving in the U.S. on a fake Senegalese passport and applying for asylum.
- IJ initially found Thiam ineligible for asylum in absentia due to address confusion; after reopening, hearings were held via videoconference in Cleveland and Arlington, Virginia.
- The IJ credited Thiam’s credibility but held she was firmly resettled in Senegal, bar to asylum (8 U.S.C. § 1158(b)(2)(A)(vi)).
- The BIA affirmed, focusing on the firm-resettlement finding under Fourth Circuit law and declining remand for new evidence on Mauritania’s changed conditions.
- Thiam petitioned for review; the Sixth Circuit declined transfer to the Fourth Circuit, remanding to the BIA to apply its own firm-resettlement framework (A-G-G-), while not taking a position on its substantive alignment with law.
- The court denied transfer and remanded for BIA to evaluate record under its framework; the decision leaves open credibility and changed-conditions arguments on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Venue transfer under §1252(b)(2) and interest of justice | Thiam argues Sixth Circuit is proper venue; transfer would be inappropriate | Government argues Fourth Circuit should handle review | Not transferred; Sixth Circuit retains jurisdiction or, at least, no transfer warranted by interest of justice |
| BIA's application of firm-resettlement framework | BIA did not apply Sixth Circuit’s A-G-G- framework properly | BIA used framework for firm resettlement; applied existing law | Remand to BIA to apply A-G-G- framework and reevaluate record (without taking position on framework's ultimate validity) |
| Changed country conditions as a basis for relief | Evidence of Mauritania’s changed conditions could alter outcome | BIA found evidence insufficient to show changed conditions affect relief | Remand allows BIA to consider changed-conditions evidence under applicable framework although not conclusively resolved here |
Key Cases Cited
- Sorcia v. Holder, 643 F.3d 117 (4th Cir.2011) (venue under § 1252(b)(2) is nonjurisdictional; transfer not automatic)
- Avila v. U.S. Att'y Gen., 560 F.3d 1281 (11th Cir.2009) (venue is nonjurisdictional; transfer discretion governs)
- Moreno-Bravo v. Gonzales, 463 F.3d 253 (2d Cir.2006) (§ 1252(b)(2) venue considerations and transfer practice)
- Georcely v. Ashcroft, 375 F.3d 45 (1st Cir.2004) (nonjurisdictional venue provision guidance in review)
- Nwaokolo v. I.N.S., 314 F.3d 303 (7th Cir.2002) (venue rules and review considerations under § 1252(b)(2))
- Bonhometre v. Gonzales, 414 F.3d 442 (3d Cir.2005) (discussion of venue and jurisdiction in immigration petitions)