Bibiano v. Lynch, No. 12-71735 (9th Cir. 2016)
Annotate this CasePetitioner, a Mexican citizen and transgender woman, was apprehended in South Carolina and removed under a Ninth Circuit in absentia removal order. After returning to the U.S. unlawfully, she was apprehended and a reinstated removal order, based on her previous in absentia removal order, was filed against her in North Carolina. At issue is whether the petition for review properly falls under the Ninth Circuit’s judicial authority. In this case, petitioner's in absentia removal order was issued by an IJ in the Ninth Circuit, but venue is ultimately proper in the Eleventh Circuit where the IJ completed proceedings that finalized petitioner's reinstated removal order. The court joined its sister circuits and held that 8 U.S.C. 1252(b)(2)’s venue provision is not jurisdictional. As a result, the court has subject matter jurisdiction over petitioner's claim even if venue is not proper here. Due to the unique circumstances of this case, the court will keep the petition in the Ninth Circuit in the interest of justice. Accordingly, the court remanded to the BIA for further proceedings.
Court Description: Immigration. The panel remanded petitioner Bibi Bibiano’s case to the Board of Immigration Appeals to revisit the merits of her reasonable fear of persecution should she be returned to Mexico, and denied the government’s motion to transfer the case to the Eleventh Circuit. Resolving an open question, the panel held that the venue provision in 8 U.S.C. § 1252(b)(2) is not jurisdictional. The panel also held that this court has subject matter jurisdiction over Bibiano’s claim although venue is proper in the Eleventh Circuit, where her reinstated removal order became final. The panel held that in such a situation, federal circuit courts have inherent transfer authority and need not rely on 28 U.S.C. § 1631 for statutory authority. The panel held that given the unique circumstances it was in the interests of justice to keep the case in this court rather than transfer it to the Eleventh Circuit. Judge Callahan concurred fully with the majority that § 1252(b)(2)’s venue provision is not jurisdictional and that this court has subject matter jurisdiction, and she also concurred with the decision to remand to the BIA. Judge Callahan wrote separately to emphasize her concern that the decision should not be read to encourage forum shopping. BIBIANO V. LYNCH 3
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