Fidel Bibiano v. Loretta E. Lynch

that minimum labor standards do not held

imрlicate preemption. Machinists Wage Ordinance is no different.

AFFIRMED. Ignacio BIBIANO,

Fidel Aka Bibiano, Petitioner, Bibi LYNCH, Attorney Loretta E. General, Respondent.

No. 12-71735 of Appeals, United States Court Ninth Circuit. Argued and Submitted December Pasadena, California 2015— August Filed (argued)

Victoria Dorfman and Lauren Pardee, York, York; Day, Jones New New Valenzuela, Keren Zwick and Claudia Na- Center, Immigrant Chicago, Justice Illinois; for Petitioner. Hogan (argued); Cindy

Brendan P. S. Ferrier, Director; Im- Assistant Office of migration Litigation, United States De- Justice, D.C.; partment Washington, Respondent. PREGERSON,

Before: HARRY A. TASHIMA, and WALLACE CONSUELO CALLAHAN, Judges. M. Circuit by Judge Concurrence CALLAHAN OPINION

PREGERSON, Judge: Circuit citi-

Petitioner Bibi Bibiano is Mexican' transgender zen and woman. Because she gender not conform to norms in Mexi- did co, abused, beaten, continually she was tormentor harassed. After one threatened to decide the ven- ap- yet We have whether her, she fled to California and to kill aрplication asylum provision jurisdiction- 1994. Her ue plied for however, and al, i.e., Bibiano approved, improper strips us was proceedings. in removal When placed jurisdiction, was requiring appear her scheduled hear- did ‍‌​‌‌‌‌​​‌​​​‌​‌​‌‌​​‌​‌​‌‌​​‌​​‌​‌​​​​​​‌​​​​‌‌​‍not she join dismissal or transfer the case. We Angeles, immigration judge ing in Los the noncontroversial —shared (“IJ”) inan removal order issued absentia nine circuits have ad- other which later, against years Fiftеen Bibiano her. dressed issue detail —that in South Carolina and apprehended was 1252(b)(2)’s juris- under the absen- removed result, mat- dictional. As returning order. After tia removal even if ter over Bibiano’s claim unlawfully, apprehended venue is not here. Because of the order, based on and a reinstated removal unique of case dis- circumstances order, in removal previous her absentia below, in keep cussed Bibiano’s in North аgainst filed her Carolina. was jus- in the of interests for of request withholding removal Her to the BIA further tice. We remand for who by Georgia an in found was denied IJ proceedings. a reasonable fear of that she did have if to persecution future or torture returned I. AND FACTUAL PROCEDURAL Immigration Ap- The Board of Mexico. BACKGROUND (“BIA”) upheld peals ruling, the IJ’s and Bibiano Mexican citi- Petitioner Bibi is a with this petitioned for review Bibiano and of transgender zen woman. Becаuse court. identity, and gender her sexual orientation of do not decide the merits Bibiano’s norms gender Bibiano did not conform to Rather, jurisdic- at hand is issue case.1 result, ha- in As a was Mexico. Bibiano petition properly tional —whether Bibano’s rassed, beaten, Af- sexually assaulted. judicial au- falls under Ninth Circuit’s persistent one tormentor threatened ter thority. Federal circuit courts 1994, kill her in Bibiano to California fled final orders of re- over asylum. asylum An officer de- sought moval, 1252(a)(1), with venue 8.U.S.C. her to an application nied her and referred for such in the circuit where review moved proceedings. for Bibiano IJ removal immigration completed pro- judge “the notify but Carolina did North 1252(b)(2). 8 U.S.C. Bibiano’s ceedings,” failed change of of address and court her in removal was issued an absentia order of her immi- subsequent notice receive Circuit, ulti- IJ in the Ninth but ap- hearing. Because she did gration in mately proper the Eleventh Circuit in an IJ hearing Angeles, Los pear her completed proceedings the IJ order in absentia removal issued an removal or- finalized reinstated against in 1995. her asks us to government der. The later, in living in Years while pur- Bibiano’s case the Eleventh Circuit Carolina, Bibiano was arrested South suant to the transfer in the license driving placed without 1681. country light con- persecution in Mexiсo in of Regardless ultimately exer- of which circuit government also asks gov- ditions The evidence. cises over Bibiano's analysis its of Bibiano's the BIA to reassess has that remand to the ernment conceded claim, including that it is more necessary. her claim government requests CAT BIA is The ac- likely than not authorities BIA issue a detailed more decision practice quiesce torture. pattern or of to her Bibiano's claim a custody immigration officers. She was where her in origi- absentia order removed to under her Mexico ab- nated. later,

sentia removal order. Two months II. DISCUSSION U.S., illegally she re-entered and in June a traffic following stop, Bibiano Federal circuit courts have again immigration placed custody. over “final order[s] 16, 2011, 1252(a)(1). On June officials from the De- removal.” 8 U.S.C. Section (“DHS”) partment of Security 1252(b)(2), Homeland forms,” titled “Venue and fur Hendersonville, North Carolina filed a ther respect states that to review “[w]ith Notice of Intent to reinstate the 1995 re- of an order of removal ... [t]he 1231(a)(5). moval order. See 8 U.S.C. for review shall be filed with the court appeals judicial for the circuit in which the While in custody Georgia, Bibiano immigration judge completed the proceedi stated that she not want did to return to (b)(2). 1252(b), ngs.”3 8 U.S.C. Mexico for persecution fear of on account that, argues completed because pro of her sexual gender orientation and iden- ceedings leading to an in absentia removal tity, immigration and an officer conducted Circuit, order in the Ninth venue and a reasonable fear assessment.2 See 8 therefore lie with this circuit. 208.31, §§ C.F.R. 241.8. The officer con- government argues cluded that Bibiano “established reason- Circuit, lies with the Eleventh where an IJ persecution able fear оf in Mexico” and completed reasonable fear proceedings referred Bibiano’s case to an inIJ Atlanta. order; that finalized the reinstated removal 2011, 14, On October applied Bibiano for such, case Bibiano’s should be trans withholding of and protec- CAT ferred to pursuant the Eleventh Circuit tion based on her sexual orientation and 1631, § 28 U.S.C. titled “Transfer to cure gender identity. appeared pro She se be- jurisdiction.” want of fore an multiple IJ in hearings during 30, 2011, November 2011. On November To determine our' authority over applications denied for matter, this we address the first threshold relief. question of lack whether of venue under 1252(b)(2) appeal, upheld § On the BIA strip IJ’s deni- this court of sub al of ject relief jurisdiction under Circuit law. matter does not.4 We —it filed her for review of the then ask if the Ninth Circuit was the prop BIA’s decision with the Ninth Circuit er venue for filing was not. —it 2.Withholding of removаl and 3. passage Illegal Immigration relief under Before of may CAT Immigrant Responsibility available Reform and reinstatement ofAct 1996, stage. immigrant "expresses If applicants petitions a fear of file could for re- returning country designated judicial view in the circuit of their residence order,” judicial he "immediately or she must be or in "the re- circuit which the admin- asylum ferred special inquiry to an for istrative before a officer an interview to part.” determine alien officer were in whole whether the has a conducted or in reasonable 1105a(a)(2) persecution (repealed § See tear of 8 U.S.C. or torture....” 8 C.F.R. see, 241.8(e); Lynch, Andrade-Garcia v. 1076, (9th 2016), 1078 Cir. decide, amended generally 4. Courts should as a thresh- 829, (9th 828 matter, WL 2016 3924013 Cir. they subject old whether have matter 7, 2016). asylum Jul. other, If the officer finds the moving before on to non- reasonable, fear to be the officеr refers the Arbaugh merits threshold issues. v. Y&H 514, 500, case to 1235, an IJ for full Corp., consideration of the 546 126 U.S. S.Ct. 163 request 208.31(e). (2006) ("[CJourts for relief. 8 C.F.R. Such L.Ed.2d 1097 ... have an independent obligation Bibiano's case. to determine whether

971 statutory requirement labeling particular a Finally, though venue even drastic.”). law, jurisdictional are Our case here, subject ju- matter we have because unfortunately, light sheds little risdiction, if the ask interests instances, question. In two al- court thеy We do not. deal counsel transfer — under lowed lack of 8 U.S.C. (subject jurisdic- matter each issue with 1252(b)(2) jurisdic- to meet the lack of transfer) tion, venue, in turn. and requirement purposes tion of trans- non-jurisdic- A. Section Trejo- 1631.6 See fer 28 U.S.C. under Mejia, statute (noting that “we 915 lack purposes the trans- Whether venue defect under lie”) fer because venue does not statute subject deprives us of INS, v. (citing Rodriguez-Roman question open at once jurisdiction is a (9th 1996) (“[F]or 416, purposes Cir. Beebe, Wong Fun consequential.5 Kwai jurisdic- a court lacks 2013) (en 1035-36 lie.”)). if tion venue does not nom. remanded sub Unit banc), aff'd — Wong, Fun Kwai ed States v. context, of “jurisdic In this the use -, L.Ed.2d misleading. explicitly S.Ct. tion” de (internal alterations, (2015) quotations, clined question to address the omitted) (noting mat is implicated citation “power improper equated involves our hear when venue is lack ter with Tre- consequences purposes.7 of of for transfer “[t]he a case” and exists, [pursuant "A subject-matter jurisdiction even in the is transferable 1631] case (1) challenge any party.”). absence of a from met: when three conditions are the trans- jurisdictional a difficult is- Courts avoid feree would have been able exercise court other, sue, however, by deciding some non- jurisdiction on date its the action was See, Trejo-Mejia e.g., v. merits threshold issuе. misfiled; (2) juris- the transferor court lacks Holder, 913, (9th 2010) Cir. F.3d 915 n.2 593 diction; (3) the serves and the interest (avoiding issue of "whether 8 U.S.C. justice.” Trejo-Mejia, 593 F.3d at 915 1252(b)(2) purely § a venue statute or is Dep't (quoting de v. Home- Garcia Rincon subject ju- affects whether it also our matter Sec., 1133, (9th 2008) F.3d land 539 1140 Cir. by transferring the case 28 risdiction” under omitted)). (internal quotation marks 1631); § also 2-12 Moore’s see Federal (Matthew § Practice —Civil 12.30 Bender 3d approach Trejo-Mejia 7. The Circuit’s ‍‌​‌‌‌‌​​‌​​​‌​‌​‌‌​​‌​‌​‌‌​​‌​​‌​‌​​​​​​‌​​​​‌‌​‍in Ninth 2015). jurisdictional Ed. Because the issue in giv Rodriguez-Roman and has been criticized one, by we this case is not a difficult abide subject en the central distinction between obligation and it here. our address jurisdiction dispute may a matter —whether should be heard —and venue—which court 1252(b)(2) subject § contemplates matter 5.If Wright hear 15 Alan & Arthur it. See Charles jurisdiction, be then this court would com- Miller, and R. Federal Practice Procedure pelled, objeсtion the face such ("[V]enue (4th 2013) simply is 3842 ed. Arbaugh, jurisdiction, see to dismiss the jurisdictional concept....”). The a criticism 1235, 514, U.S. 126 S.Ct. or transfer it 546 at jurisdiction perhaps misplaced. use of is Our 1631, see, e.g., Trejo- pursuant to 28 U.S.C. (not to be confused with sub this context 1252(b)(2) Mejia, at 915. a 593 F.3d If capa ject jurisdiction) meant to statute, however, matter objections non-jurisdictional progenitor furthering in cious. The case may improper if not be waived time- ' filed, terpretation, Rodriguez-Roman, see, relied Georcely Ashcroft, e.g., 375 ly v. F.3d 611, C.I.R, (5th 45, (1st 2004), v. 860 F.2d 612 Dornbusch 49 Cir. and courts have 1988) curiam), (per which held Con Cir. they to hear case over which venue, gress may jurisdiction to be have intended subject no matter but "broad, see, Gonzales, general, used in a nontechnical v. 463 F.3d Moreno-Bravo 253, (2d impliedly improper includes 263 sense” which Cir. 972

jo-Mejia, (per curiam); Gen., 915 n.2 (declining Att’y 593 F.3d at v. Khouzam 549 address none of 235, (3d 2008); this issue where thе un F.3d 249 Cir. Moreno-Bra derlying immigration proceedings took (2d Gonzales, vo v. at 463 F.3d 258-62 Cir. Circuit). In place Rodriguez- in the Ninth 2006); Gonzales, 230, Jama v. 431 F.3d 233 Roman, matter our (5th 2005) curiam); (per n.3 Georcely, Cir. question; over without was (1st 2004); 375 F.3d at 49 Cir. v. Nwaokolo (where assumed that the (7th 2002) INS, 303, 314 F.3d 306 n.2 Cir. jurisdic had improper) original venue was curiam); Lee, (per Yang You but see 791 tion, necessary assumption to deem the (rejecting potentially 1263 n.2 to our petition transferred court.8 98 F.3d contrary Hyun v. hоlding Min Park Dornbusch, at 424 (citing 860 F.2d at 615 (8th 2001) Heston, 665, 666 Cir. describing the Dombusch as for lack of analysis). a court has “[WJhere but venue, for this are lacks it transfer a reasons consensus case to a Sorcia, of appeals court venue under uncontroversial. See 121; federal transfer statute or its Moreno-Bravo, inherent au generally, see added)). thority.” (emphasis The use of 1252(b)(2) F.3d at 258-62. Section is titled purpose for the of transfer forms,” “Venue suggesting that sub provide any purchase does not for answer ject is not contemplated ing contemplates provision. While the title of a stat jurisdiction. trump plain ute cannot the statute’s mean 308-09, ing, 289, Cyr, INS v. St. 533 U.S. so, Even the well-reasoned and 2271, (2001), 121 S.Ct. 150 L.Ed.2d 347 among clear our consensus sister circuits statute explicitly itself avoids such terms nonjurisdic affirms that is a “judicial “jurisdiction,” or review” terms See Yang venue statute. You Lee v. appear elsewhere abundance and (10th 1261, Lynch, 791 F.3d 1263-64 Cir. clearly 2015); Holder, delineated in the REAL ID Act. Thiam v. 301- (6th Moreover, Moreno-Bravo, 2012); Sorcia, F.3d at 259. Cir. 643 F.3d at 121 (4th 2011); REAL Gen., Cir. ID Att’y Avila Act’s amendments to 2009) jurisdiction, 1284-85 focused issues of explicitly on relation, (the Circuit), venue. This however, bears no untimely. elaboration his narrowly properly con- 98 F.3d at court 421. This deemed the late- jurisdiction. Regardless, strued petition timely filed "transferred” Court, court, Supreme die well as as this has Ninth Circuit based thе date of the at strived to minimize confused use of the term. tempted filing ‍‌​‌‌‌‌​​‌​​​‌​‌​‌‌​​‌​‌​‌‌​​‌​​‌​‌​​​​​​‌​​​​‌‌​‍wrong in the circuit court. 98 See Union v. R.R. Brotherhood Loco- Pacific 424. In order hold that the Elev 67, 81, Engineers, motive 584, 558 U.S. 130 S.Ct. enth Circuit met the lack of re (2009) ("Recognizing 175 L.Ed.2d 428 quirement in the transfer the court that the word by has been used juris assumed that the Eleventh Circuit had courts, Court, including convey many, case, petitioner's diction over the but held cautioned, many, meanings, too we have that "a court lacks venue decisions, against profligate recent use of the purposes does not lie” for the of the transfer (internal quotation term.” and citation omit- Id.-, Holder, statute. see Sorcia v. also F.3d ted)); Wong, see also at 1036. (4th 2011) (describing Cir. the Rodri guez-Roman analysis). venue If the Eleventh Rodriguez-Roman, petitioner In the incor- Circuit had over the lacked rectly petition submitted a for review in the (the Circuit); facially apply; the wrong transfer statute there by circuit court (he equate time a clerk the would have been no need to venue returned and the petitioner proper jurisdiction. file in able to the venue with is Al argument unavailing. in the This provision alter venue but did not the though per are not (noting at 1036 reinstatement orders process. Wong, removal, that, se orders of we have language of a statute’s light context, ‘clearly has them аs final of removal “Congress unless review orders 1252(a)(1). § jurisdictional[,] under 8 Andrade- that the rule is U.S.C. state[d]’ Garcia, at 1080. In should the restriction as the context ... ‘courts treat here, a proceedings, reasonable fear nonjurisdictional (quoting in character.’” 515-16, 126 removal order final Arbaugh, 546 at S.Ct. reinstated becomes (and Moreno-Bravo, 1235)); appealable) proceed those 463 F.3d at 259 thus once ings are (concluding plain beyond completed that “it an IJ. 8 C.F.R. should 1252(b)(2) Holder, 208.31; § § ... any doubt does Ortiz-Alfaro jurisdiction”). The reinstated concern order, moreover, generally forecloses re join circuits in our sister original view of order. the See 8 U.S.C. the also, 1231(a)(5); Rin see Garcia de non-jurisdictional. Consequently, we must con, 539 F.3d at 1137. This foreclosure whether venue is in the decide suggests appellate review should re and, not, if whether we Ninth Circuit ruling, late to the substance of the which рeti- exert over Bibiano’s should sits, at occurs under the law where the IJ regardless. tion purposes. least for venue The salient fo analysis multi-jurisdic- rum for venue in the Eleventh Cir- B. Venue as this is circuit where case such cuit rendering completes proceedings the IJ underlying that the argues removal order final. reinstated order, in absentia removal not the rein Here, underlying order is removal order, only removal is the stated relevant Rather, of the issue. substance analysis. She argues, order for immigration proceedings that underlie removal primarily, that reinstated orders in the appeal occurred Eleventh Circuit. analysis. relevant the venue are not There, completed fear an IJ reasonable They do meet re reinstated proceedings, which finalized the orders are quirements because such issued purposes appellate order by an by agency officials and not IJ. See 8 Circuit, not review. The Eleventh 1231(a)(5); 8 C.F.R. 241.8. She was the correct venue further contends that the reasonable fear 1252(b)(2). petition under which render reinstated re irrelevant; final are also moval orders keeping C. interests of favor technically in this context does not in this court to a complete proceedings leading final re above, order, the venue im As discussed moval but rather removes the not in does to enforcement of the reinstated 8 U.S.C. pediment Holder, subject jurisdiction 640 remove our matter order. Galindo-Romero thus, removal; that the Thus, of 878 ac over final orders F.3d the venue does Bibiano, proper in cording to absentia remov Circuit this case. is the not defeat our over only al order final order this, a court has completed by In a matter such as proceedings issued after are subject matter but venue an IJ and should therefore control for inherent proper, circuit courts have purposes. federal 974 authority rely need not bar pending on 28 has been in for our court Dornbusch,

U.S.C. 1631.See 860 F.2d at more than year already and has been 615; also, Sorcia, 122; see e.g., F.3d at fully briefed under Ninth law. Moreno-Bravo, 263; at Trejo- 463 F.3d Transfer would not be cf. more convenient Mejia, 593 at & n.2 (relying on “by having argu- brief parties their authority for statutory to transfer using ments afresh a different circuit’s jurisdic where existence of Thiam, precedent.” 677 F.3d at 302. More- decided). turn, tion was not In we need not over, maintaining rely statutory §on authority 1631 ‍‌​‌‌‌‌​​‌​​​‌​‌​‌‌​​‌​‌​‌‌​​‌​​‌​‌​​​​​​‌​​​​‌‌​‍for change equation the convenience for either transfer this case.9 party does live within —Bibiano

Although Ninth jurisdiction, transfer the Circuit’s but does she authority case under our inherent and not not live within in the Eleventh Circuit’s case, the transfer in either our either, government and the analysis deciding is the whether it hears cases the nation. no across We see same— justice” the “interests of to do so. See why reason transferring this case would be Lee, Yang You at (collecting more or parties. less convenient for the justice adopting cases the interests of anal Perhaps importantly, transferring most ysis for transfer under federal courts’ in judicial the case wоuld waste resources authority). analyzing herent When unnecessary delay. Regardless cause justice, a transfer will be in the interests of jurisdiction, gov- of which has circuit generally courts consider reasonable ernment asks that the case be remanded immigrant’s of the confusion ness as to to the BIA to reconsider the merits venue, as issues delay, well case; transferring now the case inconvenience to parties, and waste of needlessly the Eleventh Circuit would judicial unique resources. See id. Given the prolong process. Rather than require case, circumstances of this we hold that judicial additional delay attention and transfer is justice. the interests of matter, address this we can and do exer- Here, government acknowledges cise our over the case and order “may that Bibiano’s confusion over venue it BIA remanded to the for reconsideration understandably by legiti been caused of Bibiano’s reasonable fear determination. mate confusion as to the forum for Thiam, e.g., See 303. Indeed, review.” spans multiple the case jurisdictions, decision-makers and three III. CONCLUSION of which one was the Ninth Circuit where We have over originally asylum.10 filed See final orders removal. 8 U.S.C. Sorcia, 123; e.g., Trejo- cf. 1252(a)(1). been open question It has Mejia, (ordering 593 F.3d at 914 a transfer in this un- where none of the circuit whether venue defect occurred in Circuit). addition, In the case at der 8 specifies —which not, however, 9. This gamesmanship shopping does undermine and forum do not rely ability this court's to due, 1631 to avoid apply government in this as the ac- inequitable example, results to errant knowledges. apply Nor should these concerns filing outside of the Ninth Circuit if it is in the cases; subsequent opinion any clears interests of so. to do See Rodri- confusion as to venue the context of rein- guez-Roman, stated finalized removal orders reasonable proceedings. fear 10. Given the understandable confusion good-faith filing, Bibiano's concerns about Opin- reinstated removal order final.” exists in the circuit the venue proper 12-18. ion proceedings completed where —de- authority. hold us of this prives venue nonjurisdictional is a such, venue is thоugh even As

provision. Circuit, Bibiano’s in the the falls under case the interests of Ninth Circuit. As transfer, DENY not counsel we do mat- to this motion government’s Kelly McDaniel, MORRIS; Stephen grant ter to the Eleventh Circuit. We and all others behalf themselves to to request REMAND similarly situated, Plaintiffs-Appel rea- BIA to revisit the merits Bibiano’s lants, she be persecution fear of should sonable

returned to Mexico. Our remand LLP; YOUNG, & ERNST & Ernst the BIA from consid- intended foreclose Young LLP, U.S., Defendants- parties ering any further issuеs which the Appellees. also it to may properly raise. We leave instance, decide, which in the first BIA to No. 13-16599 this case on remand. governs circuit’s law Appeals, States Court of United REMANDED. Ninth Circuit. Argued Submitted November

CALLAHAN, concurring: Judge, Francisco, California 2015 San that 8 fully majority with the I concur Filed August 1252(b)(2)’s jurisdictional and claim jurisdiction over I though here. even majority’s deci- fully concur with

also our to the BIA and that sion to remand BIA from not foreclose the remand does considering any further issues which including raise which properly parties this case on remand. governs circuit’s law transferring the case Although I favored Circuit, I the re- accept to the Eleventh government ‍‌​‌‌‌‌​​‌​​​‌​‌​‌‌​​‌​‌​‌‌​​‌​​‌​‌​​​​​​‌​​​​‌‌​‍mand to the BIA because the BIA was conceded that remand empha- separately I appropriate. write my should size concern that decision encourage shopping. not be forum read Rather, may only petitions such review filed, held, in as we “the circuit rendering the IJ completes

Case Details

Case Name: Fidel Bibiano v. Loretta E. Lynch

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 19, 2016

Citation: 834 F.3d 966

Docket Number: 12-71735

Court Abbreviation: 9th Cir.