Yang You Lee v. Lynch
791 F.3d 1261
10th Cir.2015Background
- Lee, a Thai national and lawful permanent resident since 1987, was ordered removable in 2014 after an IJ found he committed a misdemeanor domestic assault and denied cancellation of removal; the BIA dismissed his appeal.
- Removal hearings were held while Lee was detained in Oklahoma (Tenth Circuit); several proceedings used video, but the final hearing was conducted in person in Dallas, Texas (Fifth Circuit).
- The IJ told Lee to appear in Dallas for the final hearing; the final hearing notice listed Dallas at the top but identified an Oklahoma City address in the body.
- The IJ, Lee, and the government’s attorney all physically appeared in Dallas for the final hearing, and the IJ issued the final order from the Dallas Immigration Court.
- Lee filed his petition for review in the Fifth Circuit; that court sua sponte transferred the petition to the Tenth Circuit, prompting this court to consider venue under 8 U.S.C. § 1252(b)(2).
- The Tenth Circuit concluded § 1252(b)(2) is a non-jurisdictional venue provision, found venue proper in the Fifth Circuit, and transferred the petition back to the Fifth Circuit in the interest of justice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1252(b)(2) is jurisdictional or a venue provision | § 1252(b)(2) should allow review only in the circuit where proceedings completed; venue only issue | AG argued venue rules control where petition must be filed; implicit assertion venue is jurisdictional | §1252(b)(2) is non-jurisdictional venue provision (court follows sister circuits) |
| Where the IJ "completed the proceedings" for §1252(b)(2) venue purposes | Lee: final hearing and order were in Dallas; venue is Fifth Circuit | AG: docketing/notice listed Oklahoma City; EOIR guidance and proposed regulation tie venue to docketed hearing location (Tenth Circuit) | Venue is in Fifth Circuit because final hearing actually occurred in Dallas and IJ completed proceedings there |
| Whether to defer to EOIR materials (OCIJ memo and proposed reg.) on venue | Lee: actual final hearing location controls; agency materials not persuasive here | AG: OCIJ memo and proposed 8 C.F.R. rule support treating docketed location as controlling | Court declined deference: OCIJ memo inapplicable (no remote hearing); proposed reg. not persuasive under Skidmore in these facts |
| Whether to transfer the petition to the Fifth Circuit | Lee filed in Fifth; central legal arguments rely on Fifth Circuit precedent | AG opposed transfer, urging Tenth Circuit venue | Court transferred to Fifth Circuit in interests of justice (proper venue, counsel location, merits not frivolous, Fifth precedent central) |
Key Cases Cited
- Thiam v. Holder, 677 F.3d 299 (6th Cir. 2012) (concluding §1252(b)(2) is a venue provision)
- Sorcia v. Holder, 643 F.3d 117 (4th Cir. 2011) (treating §1252(b)(2) as non-jurisdictional and discussing transfer)
- Moreno-Bravo v. Gonzales, 463 F.3d 253 (2d Cir. 2006) (analyzing statutory text and REAL ID context to find §1252(b)(2) non-jurisdictional)
- Jama v. Gonzales, 431 F.3d 230 (5th Cir. 2005) (recognizing §1252(b)(2) as venue provision)
- Nwaokolo v. INS, 314 F.3d 303 (7th Cir. 2002) (treating judicial-venue provision as non-jurisdictional)
- Park v. Heston, 245 F.3d 665 (8th Cir. 2001) (earlier statement treating venue timing and circuit; court here criticized its lack of analysis)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (framework for deference to agency interpretations lacking force of law)