MAMADOU AMADOU SARR v. MERRICK GARLAND, ATTORNEY GENERAL OF THE UNITED STATES
No. 20-3836
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
October 12, 2022
August Term 2021
(Submitted: April 19, 2022)
Before: LIVINGSTON, Chief Judge, CABRANES and LOHIER, Circuit Judges.
Petitioner Mamadou Amadou Sarr (“Sarr“) petitioned for review of the decision of the Board of Immigration Appeals to uphold the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture. An Immigration Judge, as authorized by Congress, conducted the removal proceeding via video teleconference. See
Turning first to the transfer motion, we conclude that the Fifth Circuit is the proper venue for his petition for review because jurisdiction vested in Louisiana and there was no change of venue after removal proceedings commenced. Still, in light of Sarr‘s understandable confusion about the proper venue for his petition, the period of time in which the petition has been pending before this Court, and the fact that his counsel is based in New York, we DENY the government‘s motion to transfer. Thus, we proceed to consider Sarr‘s motion for a stay of removal, which we DENY due to Sarr‘s failure to demonstrate either a strong showing that he is likely to succeed on the merits of his claim or that he will be irreparably injured absent a stay.
FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General, Carl McIntyre, Assistant Director, Andrew Oliveira, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C.
DEBRA ANN LIVINGSTON, Chief Judge:
Congress has expressly permitted immigration judges to conduct removal proceedings via video teleconference (“VTC“) rather than in person. See
This opinion arises from a VTC proceeding regarding Petitioner Mamadou Amadou
Under section 242(b)(2) of the Immigration and Nationality Act (“INA“), venue for a petition for review is proper in the circuit “in which the immigration judge completed the proceedings.”
BACKGROUND
I. Factual Background1
Sarr, a native and citizen of Mauritania, entered the United States in June 2019 at an unknown location without a valid visa, permit, or other entry document. About two months later, on August 16, 2019, the Department of Homeland Security (“DHS“) served Sarr with a Notice to Appear (“NTA“) that charged him as removable because he was not admitted or paroled. The NTA lists Sarr as a detainee at a correctional facility in Mississippi and ordered his appearance before an IJ at a processing center in Jena, Louisiana. The version of the NTA within the certified administrative record (“CAR“) for this case includes a “Richwood” stamp at the top right corner — presumably denoting the Richwood, Louisiana correctional center — and a “Received” stamp from the Batavia, New York immigration court on the right side.
II. Procedural History
Sarr conceded removability and applied for asylum, withholding of removal, and protection under the CAT, claiming past persecution and a well-founded fear of future persecution on the basis of his race and membership in a particular social group. The CAR contains notices for four hearings, including Sarr‘s master calendar hearing and individual merits hearing. All four hearing notices cite Richwood, Louisiana as the location of the hearing. The first
Sarr‘s individual merits hearing took place on April 13, 2020, via VTC, with Sarr participating from the detention facility in Louisiana, the IJ participating from an immigration court in New York, and counsel and an interpreter participating telephonically from locations undeclared in the hearing transcript. At the beginning of the hearing, the IJ stated: “The Court is located in Buffalo. Respondent is in DHS custody at Richwood Correctional Center.... [Counsel] representing the DHS is appearing via telephone. [Counsel] representing [R]espondent is appearing telephonically.... [T]he [R]espondent is via VTC.” CAR 111. The certificate page of the transcript of the hearing lists “Buffalo, New York” below Sarr‘s name and A-number.
In an April 22, 2020 written decision, the IJ denied relief to Sarr, concluding that, inter alia, his testimony was not credible, he had failed to provide sufficient reasonably available corroborative evidence to establish past persecution, and he had failed to establish a claim for a well-founded fear of future persecution. The IJ cited to cases from various circuit courts but primarily relied on Fifth Circuit precedent. See, e.g., CAR 78 (“Pursuant to legal precedent in the United States Court of Appeals for the Fifth Circuit....“). The IJ‘s decision listed the Buffalo, New York immigration court at the top of the first page.
On October 16, 2020, the BIA affirmed the IJ‘s denial of relief and dismissed the appeal, finding no clear error in the IJ‘s adverse credibility finding and concluding that Sarr had failed to satisfy his burden of proof to establish eligibility for asylum or withholding of removal. Citing to EOIR Operating Policies and Procedures Memorandum No. 04-06, the BIA stated in a footnote that “removal proceedings before the Immigration Judge in this matter were completed at the Richwood Correctional Facility” and that “[t]he case was docketed for hearing in Richwood, LA, and the Immigration Judge, while sitting in the Immigration Court in Buffalo, NY, heard the case through video conference.” CAR 3 n.1. The BIA applied Fifth Circuit law to Sarr‘s appeal.
On November 12, 2020, Sarr timely petitioned this Court for review of the BIA‘s decision. The petition asserted that venue was proper in the Second Circuit under
Upon submitting his petition, Sarr moved for a stay of removal pending resolution of his case as well as for leave to proceed in forma pauperis. The government opposed the stay of removal and moved to transfer the petition and the motion for a stay of removal to the Fifth Circuit on the basis that venue was proper in the Fifth Circuit. Sarr opposed the motion to transfer.
On March 24, 2022, a panel of this Court considered the trio of motions on the Non-Argument Calendar. Noting that “the statute and the regulations do not provide a clear answer as to the proper venue for this case, where the removal hearing was conducted through video teleconferencing,” the panel referred the case to the instant panel on the Regular Argument Calendar to resolve the government‘s motion to transfer venue and Sarr‘s motion for a stay of removal. Ct. Order, Mar. 24, 2022. The panel also granted Sarr leave to proceed in forma pauperis and a temporary
DISCUSSION
As noted by the panel that originally considered these motions, we must consider Sarr‘s motion for a stay of removal in light of our resolution of the government‘s motion to transfer venue. Accordingly, we turn first to the transfer motion. For the following reasons, we conclude that the Fifth Circuit is the proper venue for Sarr‘s petition for review. Still, in light of Sarr‘s understandable confusion about venue, the period of time in which the petition has been pending before this Court, and the fact that his counsel is based in New York, we DENY the government‘s motion to transfer. Thus, we proceed to consider Sarr‘s motion for a stay of removal, which we DENY due to Sarr‘s failure to demonstrate either a strong showing that he is likely to succeed on the merits of his claim or that he will be irreparably injured absent a stay.
I. Motion to Transfer
We begin with the government‘s motion to transfer venue to the Fifth Circuit. Section 242(b)(2) of the INA provides that a petition for review of an order of removal “shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings.”
A
Neither this Court nor the Supreme Court has directly opined on the question presented here: in which judicial circuit does an IJ involved in a VTC immigration proceeding “complete[]” the proceeding for the purpose of designating venue under
Although the meaning of “completed” in
Nothing after Sarr‘s proceedings commenced in Louisiana suggests that venue ever moved elsewhere. First, an “Immigration Judge, for good cause, may change venue only upon motion by one of the parties, after the charging document has been filed with the Immigration Court.”
That the hearing notices cite either the Batavia or Buffalo, New York immigration courts as the filing location for any correspondence may well have created reasonable confusion. But these citations effected no change of venue. As noted, there was no motion to change venue from Louisiana, which, under
In reaching our conclusion that an IJ “completes” proceedings and, thus, venue lies in the location where — absent evidence of a change of venue — proceedings commenced, we respectfully decline to follow the holdings of some of our sister courts. Some of our sister circuits determine venue for petitions for review by “viewing the[] facts as a composite,” with varying emphasis on factors such as the physical location of the parties and the IJ or court, the locations cited on the NTA and hearing notices, and the circuit law applied by the BIA. Sorcia v. Holder, 643 F.3d 117, 123 (4th Cir. 2011); see, e.g., Plancarte Sauceda v. Garland, 23 F.4th 824, 831-32 (9th Cir. 2022) (considering
Other sister circuits have developed bright-line rules dissimilar from our own. See, e.g., Herrera-Alcala v. Garland, 39 F.4th 233, 241 (4th Cir. 2022) (holding that under a “straightforward reading of the statutory text,” venue under
B
We turn next to the question of whether to transfer Sarr‘s petition for review in light of our holding that venue lies in the Fifth Circuit. Section 1252(b)(2) is solely a venue provision and does not bear on our jurisdiction. See Moreno-Bravo v. Gonzales, 463 F.3d 253, 262 (2d Cir. 2006). Accordingly, we are “not compelled” to transfer a petition for review that was filed in the wrong circuit. Maldonado-Padilla v. Holder, 651 F.3d 325, 327 (2d Cir. 2011) (Jacobs, C.J., in chambers).
In considering whether to transfer a petition for review, this Court weighs, inter alia, (1) whether the parties have provided a “compelling reason,” id. at 328, to retain or transfer the petition; (2) whether transfer would result in “duplicative proceedings” in a sister circuit based
While we have concluded that the Fifth Circuit is the proper venue for Sarr‘s petition, we decline to transfer the petition. Considering the ambiguity of the law on venue in immigration proceedings and the mixed notations of location across the NTA, the hearing notices and transcript, and the decisions of the BIA and IJ, Sarr‘s “confusion regarding where the proceedings were completed is understandable.” Sorcia, 643 F.3d at 123. To be sure, because the case has not been fully briefed, it is not clear whether the case is a “sure loser” that would “waste the time” of the transferee court. Moreno-Bravo, 463 F.3d at 263. But Sarr‘s case has been lodged with this Court for more than twenty-one months, so transfer to the Fifth Circuit may simply “delay resolution” of the matter. Md-Abu v. Garland, No. 20-9594, 2021 WL 4496470, at *3 (10th Cir. Oct. 1, 2021). Finally, Sarr‘s counsel is based in New York while “the government litigates immigration cases nationwide,” indicating that transfer may prove especially inconvenient for Sarr. Yang You Lee, 791 F.3d at 1266. In short, it is “in the interest of justice” to maintain jurisdiction of Sarr‘s case. Moreno-Bravo, 463 F.3d at 263 (quoting
To the extent that the choice of whether to apply Second Circuit or Fifth Circuit law would dictate the outcome on the merits of Sarr‘s petition, we are confident that the parties can alert the merits panel of any relevant differences in the precedent of either circuit.
II. Motion for a Stay of Removal
Having decided to retain jurisdiction over Sarr‘s petition, we turn last to Sarr‘s motion for a stay of removal pending resolution of his case. Sarr argues that he is entitled to a stay principally because the BIA erroneously applied Fifth Circuit precedent even though the IJ conducted his hearing from a city within the Second Circuit; this, he asserts, was “fundamentally unfair” and thus violated his Fifth Amendment right to due process. He also conclusorily contends that a denial of a stay of removal would result in his forcible return to a place of persecution and render his petition for review moot. For the following reasons, we deny the motion.
“‘A stay is not a matter of right, even if irreparable injury might otherwise result.’ It is instead ‘an exercise of judicial discretion,’ and... [t]he party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Nken v. Holder, 556 U.S. 418, 433-34 (2009) (quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672 (1926)). A court of appeals must consider four factors in deciding whether to grant a stay of removal:
- whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
- whether the applicant will be irreparably injured absent a stay;
- whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
- where the public interest lies.
Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). “The first two factors... are the most critical,” id., and where, as in this case, the government is the party opposing the stay, the third and fourth factors “merge,” id. at 435.
Sarr‘s argument on the first factor turns entirely on the claim that the BIA erred in applying Fifth Circuit law. He contends that the BIA‘s failure to apply Second Circuit law resulted in reversible error. However, because we have concluded that venue is proper in the Fifth Circuit, his motion fails to make the requisite “strong showing that he is likely to succeed on the merits” of this claim. Id. at 434.
As for the second factor — irreparable harm — Sarr conclusorily argues that his removal to Mauritania would render his petition for review moot. But “the burden of removal alone cannot constitute the requisite irreparable injury,” as “[a]liens who are removed may continue to pursue their petitions for review, and those who prevail can be afforded effective relief by facilitation of their return.” Id. at 435. Sarr‘s motion ignores the fact that he may continue to pursue his petition from abroad and, if successful, would be afforded relief by the facilitation of his return.
As his reasoning under the remaining factors is insufficient to outweigh his deficiencies on the first and second factors, we decline to grant the stay. We understand, of course, that the government‘s forbearance policy, see In re Immigr. Petitions for Rev. Pending in U.S. Ct. of Appeals for the Second Cir., 702 F.3d 160, 162 (2d Cir. 2012) (mem.), is likely to mean that the government will not remove Sarr pending the resolution of his petition to a merits panel or prior to notifying this Court of its intention to remove Sarr imminently.
CONCLUSION
To summarize, we hold the following:
- In the context of a VTC hearing, an IJ “complete[s]” proceedings under
8 U.S.C. § 1252(b)(2) in the same location where proceedings commenced, unless there is evidence of a change of venue. - It is in the “interest of justice” for the Second Circuit to maintain jurisdiction over this case: Sarr was understandably confused about the proper venue for his petition, which has been pending before this Court for nearly two years, and his counsel is based in New York.
- Sarr has failed to demonstrate either a strong showing that he is likely to succeed on the merits of his claim or that he would suffer irreparable injury absent a stay.
For the foregoing reasons, we DENY the government‘s motion to transfer the petition to the Fifth Circuit, and we DENY Sarr‘s motion for a stay of removal. The case will proceed in due course.