FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FIDEL IGNACIO BIBIANO, AKA Bibi No. 12-71735
Bibiano,
Petitioner, Agency No.
A070-818-237
v.
LORETTA E. LYNCH, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 8, 2015
Pasadena, California
Filed August 19, 2016
Before: Harry Pregerson, A. Wallace Tashima,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Pregerson;
Concurrence by Judge Callahan
2 BIBIANO V. LYNCH
SUMMARY*
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.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BIBIANO V. LYNCH 3
COUNSEL
Victoria Dorfman (argued) and Lauren Pardee, Jones Day,
New York, New York; Keren Zwick and Claudia Valenzuela,
National Immigrant Justice Center, Chicago, Illinois; for
Petitioner.
Brendan P. Hogan (argued); Cindy S. Ferrier, Assistant
Director; Office of Immigration Litigation, United States
Department of Justice, Washington, D.C.; for Respondent.
OPINION
PREGERSON, Circuit Judge:
Petitioner Bibi Bibiano is a Mexican citizen and
transgender woman. Because she did not conform to gender
norms in Mexico, she was continually abused, beaten, and
harassed. After one tormentor threatened to kill her, she fled
to California and applied for asylum in 1994. Her application
was not approved, however, and Bibiano was placed in
removal proceedings. When she did not appear for her
scheduled hearing in Los Angeles, an immigration judge
(“IJ”) issued an in absentia removal order against her. Fifteen
years later, Bibiano was apprehended in South Carolina and
removed under the Ninth Circuit in absentia removal order.
After returning to the U.S. unlawfully, Bibiano was
apprehended and a reinstated removal order, based on her
previous in absentia removal order, was filed against her in
North Carolina. Her request for withholding of removal was
denied by an IJ in Georgia who found that she did not have a
reasonable fear of future persecution or torture if returned to
Mexico. The Board of Immigration Appeals (“BIA”) upheld
4 BIBIANO V. LYNCH
the IJ’s ruling, and Bibiano petitioned for review with this
court.
We do not decide the merits of Bibiano’s case.1 Rather,
the issue at hand is jurisdictional—whether Bibano’s petition
properly falls under the Ninth Circuit’s judicial authority.
Federal circuit courts have subject matter jurisdiction over
final orders of removal, 8 U.S.C. § 1252(a)(1), with venue
proper for such review in the circuit where “the immigration
judge completed the proceedings,” 8 U.S.C. § 1252(b)(2).
Bibiano’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
Bibiano’s reinstated removal order. The government asks us
to transfer Bibiano’s case to the Eleventh Circuit pursuant to
the transfer statute, 28 U.S.C. § 1631.
We have yet to decide whether the venue provision in
§ 1252(b)(2) is jurisdictional, i.e., whether improper venue
strips us of subject matter jurisdiction, requiring dismissal or
transfer of the case. We join the noncontroversial
holding—shared by the nine other circuits which have
addressed this issue in detail—that § 1252(b)(2)’s venue
provision is not jurisdictional. As a result, we have subject
matter jurisdiction over Bibiano’s claim even if venue is not
proper here. Because of the unique circumstances of this case
1
Regardless of which circuit ultimately exercises authority over
Bibiano’s case, the government has conceded that remand to the BIA is
necessary. The government requests the BIA issue a more detailed
decision on Bibiano’s claim of a pattern or practice of persecution in
Mexico in light of country conditions evidence. The government also asks
the BIA to reassess its analysis of Bibiano’s CAT claim, including her
claim that it is more likely than not that authorities would acquiesce to her
torture.
BIBIANO V. LYNCH 5
discussed below, we keep Bibiano’s petition in the Ninth
Circuit in the interests of justice. We remand to the BIA for
further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Bibi Bibiano is a Mexican citizen and
transgender woman. Because of her sexual orientation and
gender identity, Bibiano did not conform to gender norms in
Mexico. As a result, Bibiano was harassed, beaten, and
sexually assaulted. After one persistent tormentor threatened
to kill her in 1994, Bibiano fled to California and sought
asylum. An asylum officer denied her application and
referred her to an IJ for removal proceedings. Bibiano moved
to North Carolina but did not notify the court of her change
of address and failed to receive notice of her subsequent
immigration hearing. Because she did not appear for her
hearing in Los Angeles, an IJ issued an in absentia removal
order against her in 1995.
Years later, in 2009, while living in South Carolina,
Bibiano was arrested for driving without a license and placed
in the custody of immigration officers. She was removed to
Mexico under her 1995 in absentia removal order. Two
months later, she illegally re-entered the U.S., and in June
2011, following a traffic stop, Bibiano was again placed in
immigration custody. On June 16, 2011, officials from the
Department of Homeland Security (“DHS”) in
Hendersonville, North Carolina filed a Notice of Intent to
reinstate the 1995 removal order. See 8 U.S.C. § 1231(a)(5).
While in custody in Georgia, Bibiano stated that she did
not want to return to Mexico for fear of persecution on
account of her sexual orientation and gender identity, and an
6 BIBIANO V. LYNCH
immigration officer conducted a reasonable fear assessment.2
See 8 C.F.R. §§ 208.31, 241.8. The officer concluded that
Bibiano “established a reasonable fear of persecution in
Mexico” and referred Bibiano’s case to an IJ in Atlanta. On
October 14, 2011, Bibiano applied for withholding of
removal and CAT protection based on her sexual orientation
and gender identity. She appeared pro se before an IJ in
multiple hearings during November 2011. On November 30,
2011, the IJ denied Bibiano’s applications for relief.
On appeal, the BIA upheld the IJ’s denial of relief under
Eleventh Circuit law. Bibiano filed her petition for review of
the BIA’s decision with the Ninth Circuit where her in
absentia removal order originated.
II. DISCUSSION
Federal circuit courts have subject matter jurisdiction over
“final order[s] of removal.” 8 U.S.C. § 1252(a)(1). Section
1252(b)(2), titled “Venue and forms,” further states that
“[w]ith respect to review of an order of removal . . . [t]he
petition for review shall be filed with the court of appeals for
the judicial circuit in which the immigration judge completed
2
Withholding of removal and relief under CAT may be available at the
reinstatement stage. If an immigrant “expresses a fear of returning to the
country designated in that order,” he or she must be “immediately referred
to an asylum officer for an interview to determine whether the alien has
a reasonable fear of persecution or torture . . . .” 8 C.F.R. § 241.8(e); see,
e.g., Andrade-Garcia v. Lynch, 820 F.3d 1076, 1078 (9th Cir. 2016),
amended by 2016 WL 3924013 (Jul. 7, 2016). If the asylum officer finds
the fear to be reasonable, the officer refers the case to an IJ for full
consideration of the request for relief. 8 C.F.R. § 208.31(e). Such was
Bibiano’s case.
BIBIANO V. LYNCH 7
the proceedings.”3 8 U.S.C. § 1252(b), (b)(2). Bibiano argues
that, because an IJ completed proceedings leading to an in
absentia removal order in the Ninth Circuit, venue and
therefore jurisdiction lie with this circuit. The government
argues that jurisdiction lies with the Eleventh Circuit, where
an IJ completed reasonable fear proceedings that finalized the
reinstated removal order; as such, Bibiano’s case should be
transferred to the Eleventh Circuit pursuant to 28 U.S.C.
§ 1631, titled “Transfer to cure want of jurisdiction.”
To determine our authority over this matter, we first
address the threshold question of whether lack of venue under
§ 1252(b)(2) would strip this court of subject matter
jurisdiction—it does not.4 We then ask if the Ninth Circuit
was the proper venue for filing the petition—it was not.
Finally, even though venue is not proper here, because we
have subject matter jurisdiction, we ask if the interests of
3
Before passage of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, applicants could file petitions for review in the
judicial circuit of their residence or in “the judicial circuit in which the
administrative proceedings before a special inquiry officer were conducted
in whole or in part.” See 8 U.S.C. § 1105a(a)(2) (repealed 1996).
4
Courts should generally decide, as a threshold matter, whether they
have subject matter jurisdiction before moving on to other, non-merits
threshold issues. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)
(“[C]ourts . . . have an independent obligation to determine whether
subject-matter jurisdiction exists, even in the absence of a challenge from
any party.”). Courts may avoid a difficult jurisdictional issue, however, by
deciding some other, non-merits threshold issue. See, e.g., Trejo-Mejia v.
Holder, 593 F.3d 913, 915 n.2 (9th Cir. 2010) (avoiding the issue of
“whether 8 U.S.C. § 1252(b)(2) is purely a venue statute or whether it also
affects our subject matter jurisdiction” by transferring the case under
28 U.S.C. § 1631); see also 2-12 Moore’s Federal Practice - Civil § 12.30
(Matthew Bender 3d Ed. 2015). Because the jurisdictional issue in this
case is not a difficult one, we abide by our obligation and address it here.
8 BIBIANO V. LYNCH
justice counsel transfer—they do not. We deal with each issue
(subject matter jurisdiction, venue, and transfer) in turn.
A. Section 1252(b)(2) is a non-jurisdictional venue statute
Whether a venue defect under § 1252(b)(2) deprives us of
subject matter jurisdiction is a question at once open and
consequential.5 Kwai Fun Wong v. Beebe, 732 F.3d 1030,
1035–36 (9th Cir. 2013) (en banc), aff’d and remanded sub
nom. United States v. Kwai Fun Wong, 135 S. Ct. 1625
(2015) (internal quotations, alterations, and citation omitted)
(noting that subject matter jurisdiction involves our “power
to hear a case” and that “[t]he consequences of labeling a
particular statutory requirement jurisdictional are drastic.”).
Our case law, unfortunately, sheds little light on this question.
In two instances, this court allowed lack of proper venue
under 8 U.S.C. § 1252(b)(2) to meet the lack of jurisdiction
requirement for the purposes of transfer under 28 U.S.C.
§ 1631.6 See Trejo-Mejia, 593 F.3d at 915 (noting that “we
5
If § 1252(b)(2) contemplates subject matter jurisdiction, then this court
would be compelled, in the face of an objection to such jurisdiction, to
dismiss the case, see Arbaugh, 546 U.S. at 514, or transfer it pursuant to
28 U.S.C. § 1631, see, e.g., Trejo-Mejia, 593 F.3d at 915. If § 1252(b)(2)
is a non-jurisdictional statute, however, objections to improper venue may
be waived if not timely filed, see, e.g., Georcely v. Ashcroft, 375 F.3d 45,
49 (1st Cir. 2004), and courts would have the authority to hear a case over
which they have subject matter jurisdiction but no venue, see, e.g.,
Moreno-Bravo v. Gonzales, 463 F.3d 253, 263 (2d Cir. 2006).
6
“A case is transferable [pursuant to § 1631] when three conditions are
met: (1) the transferee court would have been able to exercise its
jurisdiction on the date the action was misfiled; (2) the transferor court
lacks jurisdiction; and (3) the transfer serves the interest of justice.” Trejo-
Mejia, 593 F.3d at 915 (quoting Garcia de Rincon v. Dep’t of Homeland
BIBIANO V. LYNCH 9
lack jurisdiction for purposes of the transfer statute because
venue does not lie”) (citing Rodriguez-Roman v. INS, 98 F.3d
416, 424 (9th Cir. 1996) (“[F]or purposes of the transfer
statute, a court lacks jurisdiction if venue does not lie.”)).
In this context, the use of “jurisdiction” is misleading. We
have explicitly declined to address the question of whether
subject matter jurisdiction is implicated when improper venue
is equated with lack of jurisdiction for transfer purposes.7
Trejo-Mejia, 593 F.3d at 915 n.2 (declining to address this
issue where none of the underlying immigration proceedings
took place in the Ninth Circuit). In Rodriguez-Roman, our
subject matter jurisdiction over the petition was without
Sec., 539 F.3d 1133, 1140 (9th Cir. 2008) (internal quotation marks
omitted)).
7
The Ninth Circuit’s approach in Trejo-Mejia and Rodriguez-Roman has
been criticized given the central distinction between subject matter
jurisdiction—whether a dispute may be heard—and venue—which court
should hear it. See 15 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 3842 (4th ed. 2013) (“[V]enue is simply not a
jurisdictional concept . . . .”). The criticism is perhaps misplaced. Our use
of jurisdiction in this context (not to be confused with subject matter
jurisdiction) is meant to be capacious. The progenitor case furthering this
interpretation, Rodriguez-Roman, relied on Dornbusch v. C.I.R, 860 F.2d
611, 612 (5th Cir. 1988) (per curiam), which held that Congress may have
intended jurisdiction to be used in a “broad, general, nontechnical sense”
which impliedly includes improper venue. This elaboration bears no
relation, however, to the narrowly and properly construed subject matter
jurisdiction. Regardless, the Supreme Court, as well as this court, has
strived to minimize confused use of the term. See Union Pacific R.R. v.
Brotherhood of Locomotive Engineers, 558 U.S. 67, 81 (2009)
(“Recognizing that the word jurisdiction has been used by courts,
including this Court, to convey many, too many, meanings, we have
cautioned, in recent decisions, against profligate use of the term.” (internal
quotation and citation omitted)); see also Wong, 732 F.3d at 1036.
10 BIBIANO V. LYNCH
question; we assumed that the Eleventh Circuit (where venue
was improper) had original jurisdiction, a necessary
assumption to deem the petition transferred to our court.8
98 F.3d at 424 (citing Dornbusch, 860 F.2d at 615 and
describing the Dornbusch holding as “[W]here a court has
jurisdiction but lacks venue, it may transfer a case to a court
of appeals of proper venue under the federal transfer statute
or its inherent authority.” (emphasis added)). The use of
jurisdiction for the purpose of transfer does not provide any
purchase for answering whether § 1252(b)(2) contemplates
subject matter jurisdiction.
Even so, the well-reasoned and clear consensus among
our sister circuits affirms that § 1252(b)(2) is a non-
jurisdictional venue statute. See Yang You Lee v. Lynch,
791 F.3d 1261, 1263–64 (10th Cir. 2015); Thiam v. Holder,
677 F.3d 299, 301–02 (6th Cir. 2012); Sorcia, 643 F.3d at
121 (4th Cir. 2011); Avila v. U.S. Att’y Gen., 560 F.3d 1281,
1284–85 (11th Cir. 2009) (per curiam); Khouzam v. Att’y
Gen., 549 F.3d 235, 249 (3d Cir. 2008); Moreno-Bravo v.
8
In Rodriguez-Roman, the petitioner incorrectly submitted a petition for
review in the wrong circuit court (the Eleventh Circuit); by the time a
clerk returned the petition and the petitioner was able to file in the proper
venue (the Ninth Circuit), his petition was untimely. 98 F.3d at 421. This
court deemed the late-filed petition timely “transferred” to the Ninth
Circuit based on the date of the attempted filing in the wrong circuit court.
98 F.3d at 424. In order to hold that the Eleventh Circuit met the lack of
jurisdiction requirement in the transfer statute, the court assumed that the
Eleventh Circuit had jurisdiction over the petitioner’s case, but held that
“a court lacks jurisdiction where venue does not lie” for the purposes of
the transfer statute. Id; see also Sorcia v. Holder, 643 F.3d 117, 122 (4th
Cir. 2011) (describing the Rodriguez-Roman venue analysis). If the
Eleventh Circuit had lacked jurisdiction over the case, the transfer statute
would facially apply; there would have been no need to equate venue with
jurisdiction.
BIBIANO V. LYNCH 11
Gonzales, 463 F.3d at 258–62 (2d Cir. 2006); Jama v.
Gonzales, 431 F.3d 230, 233 n.3 (5th Cir. 2005) (per curiam);
Georcely, 375 F.3d at 49 (1st Cir. 2004); Nwaokolo v. INS,
314 F.3d 303, 306 n.2 (7th Cir. 2002) (per curiam); but see
Yang You Lee, 791 F.3d at 1263 n.2 (rejecting the potentially
contrary holding in Hyun Min Park v. Heston, 245 F.3d 665,
666 (8th Cir. 2001) for lack of analysis).
The reasons for this consensus are uncontroversial. See
Sorcia, 643 F.3d at 121; see generally, Moreno-Bravo,
463 F.3d at 258–62. Section 1252(b)(2) is titled “Venue and
forms,” suggesting that subject matter jurisdiction is not
contemplated by the provision. While the title of a statute
cannot trump the statute’s plain meaning, INS v. St. Cyr,
533 U.S. 289, 308–09 (2001), the statute itself explicitly
avoids such terms as “judicial review” or “jurisdiction,” terms
that appear elsewhere in abundance and clearly delineated in
the REAL ID Act. Moreno-Bravo, 463 F.3d at 259.
Moreover, the REAL ID Act’s amendments to § 1252
focused explicitly on issues of jurisdiction, but did not alter
the venue provision in the process. Wong, 732 F.3d at 1036
(noting that, in light of a statute’s language and context,
unless “Congress has ‘clearly state[d]’ that the rule is
jurisdictional[,] . . . ‘courts should treat the restriction as
nonjurisdictional in character.’” (quoting Arbaugh, 546 U.S.
at 515–16)); Moreno-Bravo, 463 F.3d at 259 (concluding that
“it should be plain beyond any doubt that § 1252(b)(2) . . .
does not concern jurisdiction”).
We join our sister circuits in holding that the § 1252(b)(2)
venue provision is non-jurisdictional. Consequently, we must
decide whether venue is proper in the Ninth Circuit and, if
not, whether we should exert authority over Bibiano’s
petition regardless.
12 BIBIANO V. LYNCH
B. Venue is proper in the Eleventh Circuit
Bibiano argues that the underlying in absentia removal
order, not the reinstated removal order, is the only relevant
order for the venue analysis. She argues, primarily, that
reinstated removal orders are not relevant to the venue
analysis. They do not meet the § 1252(b)(2) requirements
because such orders are issued by agency officials and not by
an IJ. See 8 U.S.C. § 1231(a)(5); 8 C.F.R. § 241.8. She further
contends that the reasonable fear proceedings which render
reinstated removal orders final are also irrelevant; an IJ in this
context does not technically complete proceedings leading to
a final removal order, but rather removes the impediment to
enforcement of the reinstated order. Galindo-Romero v.
Holder, 640 F.3d 873, 878 (9th Cir. 2011). Thus, according
to Bibiano, the in absentia removal order is the only final
order of removal issued after proceedings are completed by
an IJ and should therefore control for venue purposes.
This argument is unavailing. Although reinstatement
orders are not per se orders of removal, we have jurisdiction
to review them as final orders of removal under 8 U.S.C.
§ 1252(a)(1). Andrade-Garcia, 820 F.3d at 1080. In the
context of reasonable fear proceedings, as here, a reinstated
removal order becomes final (and thus appealable) once those
proceedings are completed by an IJ. 8 C.F.R. § 208.31; Ortiz-
Alfaro v. Holder, 694 F.3d 955, 958 (9th Cir. 2012). The
reinstated order, moreover, generally forecloses review of the
original order. See 8 U.S.C. § 1231(a)(5); see also, e.g.,
Garcia de Rincon, 539 F.3d at 1137. This foreclosure
suggests that appellate review should relate to the substance
of the ruling, which occurs under the law where the IJ sits, at
least for venue purposes. The salient forum for venue analysis
in a multi-jurisdictional case such as this is the circuit where
BIBIANO V. LYNCH 13
the IJ completes proceedings rendering the reinstated removal
order final.
Here, the underlying removal order is not at issue. Rather,
the substance of the immigration proceedings that underlie
this appeal occurred in the Eleventh Circuit. There, an IJ
completed reasonable fear proceedings, which finalized the
reinstated removal order for purposes of appellate review.
The Eleventh Circuit, not the Ninth Circuit was the correct
venue for Bibiano’s petition under § 1252(b)(2).
C. The interests of justice favor keeping the petition in this
court
As discussed above, the venue provision in 8 U.S.C.
§ 1252(b)(2) does not remove our subject matter jurisdiction
over final orders of removal; thus, that the Eleventh Circuit
is the proper venue does not defeat our jurisdiction over this
case. In a matter such as this, where a court has subject matter
jurisdiction but venue is not proper, federal circuit courts
have inherent transfer authority and need not rely on
28 U.S.C. § 1631. See Dornbusch, 860 F.2d at 615; see also,
e.g., Sorcia, 643 F.3d at 122; Moreno-Bravo, 463 F.3d at 263;
cf. Trejo-Mejia, 593 F.3d at 915 & n.2 (relying on § 1631 for
statutory authority to transfer where existence of subject
matter jurisdiction was not decided). In turn, we need not rely
on § 1631 for statutory authority to transfer this case.9
9
This holding does not, however, undermine this court’s ability to rely
on § 1631 to avoid inequitable results due, for example, to errant filing
outside of the Ninth Circuit if it is in the interests of justice to do so. See
e.g., Rodriguez-Roman, 98 F.3d 416, 424.
14 BIBIANO V. LYNCH
Although we may transfer the case under our inherent
authority and not the transfer statute, in either case, our
analysis is the same—deciding whether it is in the “interests
of justice” to do so. See Yang You Lee, 791 F.3d at 1266
(collecting cases adopting the interests of justice analysis for
transfer under federal courts’ inherent authority). When
analyzing whether a transfer will be in the interests of justice,
courts generally consider the reasonableness of the
immigrant’s confusion as to proper venue, as well as issues
of delay, inconvenience to the parties, and waste of judicial
resources. See id. Given the unique circumstances of this
case, we hold that transfer is not in the interests of justice.
Here, the government acknowledges that Bibiano’s
confusion over venue “may have understandably been caused
by legitimate confusion as to the proper forum for review.”
Indeed, the case spans multiple decision-makers and three
jurisdictions, one of which was the Ninth Circuit where
Bibiano originally filed for asylum.10 See e.g., Sorcia,
643 F.3d at 123; cf. Trejo-Mejia, 593 F.3d at 914 (ordering a
transfer where none of the proceedings occurred in the Ninth
Circuit). In addition, the case at bar has been pending in our
court for more than a year and has already been fully briefed
under Ninth Circuit law. Transfer would not be more
convenient “by having the parties brief their arguments afresh
using a different circuit’s precedent.” Thiam, 677 F.3d at 302.
Moreover, maintaining jurisdiction would not change the
10
Given the understandable confusion and Bibiano’s good-faith filing,
concerns about gamesmanship and forum shopping do not apply in this
case, as the government acknowledges. Nor should these concerns apply
in subsequent cases; this opinion clears any confusion as to venue in the
context of reinstated removal orders finalized by reasonable fear
proceedings.
BIBIANO V. LYNCH 15
convenience equation for either party—Bibiano does not live
within the Ninth Circuit’s jurisdiction, but she does not live
within in the Eleventh Circuit’s jurisdiction either, and the
government hears cases across the nation. We see no reason
why transferring this case would be more or less convenient
for the parties.
Perhaps most importantly, transferring the case would
waste judicial resources and cause unnecessary delay.
Regardless of which circuit has jurisdiction, the government
asks that the case be remanded to the BIA to reconsider the
merits of Bibiano’s case; transferring the case now to the
Eleventh Circuit would needlessly prolong this process.
Rather than require additional judicial attention and delay to
address this matter, we can and do exercise our authority over
the case and order it remanded to the BIA for reconsideration
of Bibiano’s reasonable fear determination. See e.g., Thiam,
677 F.3d at 303.
III. CONCLUSION
We have subject matter jurisdiction over final orders of
removal. 8 U.S.C. § 1252(a)(1). It has been an open question
in this circuit whether a venue defect under 8 U.S.C.
§ 1252(b)(2)—which specifies that proper venue exists in the
circuit where an IJ completed proceedings—deprives us of
this authority. We hold that § 1252(b)(2) is a non-
jurisdictional venue provision. As such, even though venue is
not proper in the Ninth Circuit, Bibiano’s case falls under the
jurisdiction of the Ninth Circuit. As the interests of justice do
not counsel transfer, we DENY the government’s motion to
transfer this matter to the Eleventh Circuit. We grant the
request to REMAND this matter to the BIA to revisit the
merits of Bibiano’s reasonable fear of persecution should she
16 BIBIANO V. LYNCH
be returned to Mexico. Our remand is not intended to
foreclose the BIA from considering any further issues which
the parties may properly raise. We also leave it to the BIA to
decide, in the first instance, which circuit’s law governs this
case on remand.
REMANDED.
CALLAHAN, Circuit Judge, concurring:
I concur fully with the majority that 8 U.S.C.
§ 1252(b)(2)’s venue provision is not jurisdictional and that
we have subject matter jurisdiction over Bibiano’s claim even
though venue is not proper here. I also concur fully with the
majority’s decision to remand to the BIA and that our remand
does not foreclose the BIA from considering any further
issues which the parties may properly raise including which
circuit’s law governs this case on remand.
Although I favored transferring the case to the Eleventh
Circuit, I accept the remand to the BIA because the
government conceded that remand to the BIA was
appropriate. I write separately to emphasize my concern that
this decision should not be read to encourage forum shopping.
Rather, such petitions for review may only be filed, as we
held, in “the circuit where the IJ completes proceedings
rendering the reinstated removal order final.” Opinion 12–13.