Maldonado-Padilla v. Holder, No. 11-1249 (2d Cir. 2011)

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11-1249-ag Maldonado-Padilla v. Holder 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010 (Calendar: June 14, 2011 Decided: June 24, 2011) Docket No. 11-1249-ag - - - - - - - - - - - - - - - - - - - -x LUISA MALDONADO-PADILLA, Petitioner, - v.ERIC H. HOLDER, JR., United States Attorney General, Respondent. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, in Chambers. The petition for review is transferred sua sponte to 30 the Fifth Circuit Court of Appeals based on improper venue. 31 I must determine, on this single-judge motion, whether to 32 exercise discretion to grant a temporary stay of removal 33 pending completion of the transfer. 34 reasons, the stay is denied. 35 36 For the following 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Luisa Maldonado-Padilla, pro se, Brooklyn, New York, Petitioner. Edward Clark Durant, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, District of Columbia, for Respondent. DENNIS JACOBS, Chief Judge: This matter is before me as a one-judge motion to 15 determine whether this petition should be transferred sua 16 sponte to the Fifth Circuit Court of Appeals, which is where 17 the underlying immigration proceedings took place, and 18 whether to grant petitioner Luisa Maldonado-Padilla s motion 19 for a stay of removal pending completion of the transfer of 20 venue. 21 The petition for review should have been filed in the 22 Fifth Circuit and transfer of venue is appropriate. 8 23 U.S.C. § 1252(b)(2); see also Moreno-Bravo v. Gonzales, 463 24 F.3d 253, 257 (2d Cir. 2006). 25 for a stay of deportation, Certified Administrative Record 26 ( CAR ) at 5, is properly construed as seeking a stay 27 pending completion of the transfer of her petition for 28 review. 29 review, jurisdiction will vest with the Fifth Circuit and Maldonado-Padilla s motion That is because, upon transfer of the petition for 2 1 this Court will no longer have jurisdiction. 2 Warrick, 70 F.3d 736, 739 (2d Cir. 1995) (observing that 3 generally, when a motion for a transfer is granted and the 4 papers lodged with the transferee court, the transferor 5 court no longer possesses jurisdiction). 6 Court has made clear, [a] stay is not a matter of right, 7 and under the circumstances of this case I decline to 8 exercise my discretion to impose a stay of removal pending 9 completion of the transfer of venue. 10 As the Supreme Nken v. Holder, 129 S. Ct. 1749, 1760 (2009) (internal quotation marks omitted). 11 12 See In re BACKGROUND Luisa Maldonado-Padilla, a native and citizen of 13 Ecuador, entered the United States in 1994 without 14 documentation. 15 was detained by the Border Patrol. 16 served with an Order to Show Cause that advised of her 17 obligation to provide a current mailing address to the 18 Immigration Court. 19 released from custody after the posting of a bond and she 20 provided a mailing address in New Jersey. Id. at 5. 21 never provided a new or updated address. Notice of a 22 removal hearing was mailed to the address she provided, but CAR at 5. Upon her entry into Texas, she Id. at 17. 3 Id. She was personally Maldonado-Padilla was She 1 it was returned indicating that she had moved. 2 Id. at 17. Maldonado-Padilla failed to appear for her removal 3 hearing, and was consequently ordered removed in absentia. 4 Id. 5 reopen her removal proceedings on the ground that she did 6 not receive notice of the hearing. 7 immigration court to reopen removal proceedings on the 8 ground that she was now eligible to adjust her status to 9 that of a lawful permanent resident. Nearly fifteen years later, Maldonado-Padilla moved to She also urged the Id. at 19. The 10 immigration judge denied Maldonado-Padilla s motion to 11 reopen, finding that the in absentia order was properly 12 entered because the notice of the removal hearing had been 13 mailed to the last address provided by the petitioner. 14 Lopes v. Gonzales, 468 F.3d 81, 84 (2d Cir. 2006) (per 15 curiam). 16 untimely. 17 immigration court found no exceptional circumstance[] that 18 might justify an exercise of discretion to reopen the 19 proceeding sua sponte. 20 (BIA 1997); see also 8 C.F.R. § 1003.2(a). See The motion to adjust her status was rejected as See 8 C.F.R. § 1003.23(b)(1). Finally, the In re J-J-, 21 I. & N. Dec. 976, 976 21 The Board of Immigration Appeals ( BIA ) dismissed 22 Maldonado-Padilla s appeal from the denial of her motion to 4 1 reopen, agreeing with the immigration judge that she was 2 adequately notified of her hearing. 3 further observed that Maldonado-Padilla was not entitled to 4 receive actual notice of her removal hearing because she 5 concededly did not comply with her obligation to provide 6 and update her mailing address to the Immigration Court. 7 CAR at 17, 19. 8 was aware that she was subject to removal since at least 9 2004, but allowed nearly another six years to elapse before CAR at 17. The BIA The agency emphasized that Maldonado-Padilla 10 filing a motion to reopen. 11 seeks review of the decision of the BIA in this Court. 12 13 CAR at 19. Maldonado-Padilla I A petition for review shall be filed with the court of 14 appeals for the judicial circuit in which the immigration 15 judge completed the proceedings. 16 In this case, that court is the Court of Appeals for the 17 Fifth Circuit. 18 is not a jurisdictional mandate and I am not compelled to 19 transfer this petition, I nonetheless deem transfer 20 appropriate under the circumstances of this case. 21 Bravo, 463 F.3d at 257-58. 22 presented that would cause me to conclude that the Fifth 8 U.S.C. § 1252(b)(2). See 28 U.S.C. § 41. Although § 1252(b)(2) Moreno- Certainly, no reason has been 5 1 Circuit is an unjust forum for [t]his petition. 2 v. Sec y of Dep t of Homeland Sec., 432 F.3d 383, 387 (2d 3 Cir. 2005). 4 Amunikoro True, [v]enue is a doctrine of convenience of the 5 forum[,] and [d]omicile is usually the best measure of 6 that convenience. 7 Cir. 1975). 8 denial of a motion to reopen, however, Congress has 9 specified the proper venue. Kahane v. Carlson, 527 F.2d 492, 494 (2d In the context of a petition for review of a Absent some compelling reason 10 (not present here), a petitioner should not be able to 11 choose otherwise. 12 915-16 (9th Cir. 2010) (concluding transfer would serve the 13 interest of justice when petition for review filed in wrong 14 circuit court). 15 16 See Trejo-Mejia v. Holder, 593 F.3d 913, II The grant or denial of a stay is a matter committed to 17 discretion. Nken, 129 S. Ct. at 1760. 18 instances in which this Court has issued a stay of removal 19 pending the arrival of papers in a proper venue. 20 [a] stay is an intrusion into the ordinary processes of 21 administration and judicial review, id. at 1757 (internal 22 quotation marks omitted), and [t]he party requesting a stay 6 There have been However, 1 bears the burden of showing that the circumstances justify 2 an exercise of [the Court s] discretion, id. at 1761. 3 Here, Maldonado-Padilla has not sustained her burden of 4 demonstrating why a stay should be granted: no showing of 5 likely success on the merits has been made; no substantial 6 legal question has been raised; and, [a]lthough removal is 7 a serious burden . . ., it is not categorically 8 irreparable. 9 interest in prompt execution of removal orders, id. at Id. Moreover, [t]here is always a public 10 1762, and that interest has already been disserved by the 11 prolonged delay in these proceedings. 12 assume that ordinarily, the balance of hardships will weigh 13 heavily in the [petitioner s] favor. 14 alterations and quotation marks omitted). I may not simply Id. (internal 15 Prior to the passage of the Illegal Immigration Reform 16 and Immigrant Responsibility Act of 1996, aliens appealing 17 a decision of the BIA were generally entitled to an 18 automatic stay of their orders of removal pending judicial 19 review. 20 1204334, at *1 (9th Cir. Apr. 1, 2011) (per curiam). 21 Congress eliminated the automatic stay provision, but left 22 intact the authority of the courts of appeal to grant stays Leiva-Perez v. Holder, 640 F.3d 962, 2011 WL 7 1 as a matter of discretion. 2 as a matter of course as if it were (as once it was) a 3 matter of right. 4 Id. I decline to grant a stay On the present record, I cannot conclude that this 5 petition was filed in this Circuit with the intention of 6 effectuating a delay of the proceedings that may ultimately 7 lead to Maldonado-Padilla s removal. 8 INS, 32 F.3d 1085, 1092 (7th Cir. 1994) (concluding it did 9 not appear that the parties had engaged in forum-shopping). See Rosendo-Ramirez v. 10 At the same time, the venue error has had that effect. 11 Accordingly, as a prudential matter, I decline to exercise 12 my discretion to grant a stay to guard against possible 13 removal while this petition is transferred to the court in 14 which it should have been brought to begin with. 15 Michael v. INS, 48 F.3d 657, 666 (2d Cir. 1995) (observing 16 that even if this Court had the power to grant the 17 extraordinary relief of a stay, every prudential 18 consideration argues against it ) (Jacobs, C.J., 19 dissenting). 20 See For the foregoing reasons, the petition for review is 21 transferred to the United States Court of Appeals for the 22 Fifth Circuit and the motion for a temporary stay of removal 23 pending completion of the transfer is denied. 8

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