Elfido Gonzalez Castillo v. Attorney General United States of America

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

Nos. 23-2123, 23-2800 & 23-3136

_______________

ELFIDO GONZALEZ CASTILLO,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF

AMERICA

_______________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A090-276-154)

Immigration Judge: Jennifer Piateski

_______________

Argued March 5, 2024

Before: JORDAN, PORTER, and PHIPPS, Circuit Judges

(Filed: July 24, 2024)

_______________

Ben Winograd [ARGUED]

Immigrant & Refugee Appellate Center

3602 Forest Drive

Alexandria, VA 22302

Counsel for Petitioner

Merrick B. Garland

Kitty M. Lees [ARGUED]

Lindsay Marshall

OIL

United States Department of Justice

Office of Immigration Litigation

P.O. Box 848

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Elfido Gonzalez Castillo, a Mexican citizen, received a

Notice to Appear (“NTA”) in the Immigration Court in

Cleveland, Ohio, and the NTA was filed and docketed in that

Court. Hearings were held. Castillo attended virtually from

the Moshannon Valley Correctional Center in Philipsburg,

Pennsylvania, where he was detained, and the Immigration

Judge (“IJ”) conducted the final hearing virtually while

physically present in Virginia. A couple of weeks after that

final hearing, the IJ ordered that Castillo be removed from the

country. The question before us now is this: Which United

2

States Court of Appeals – the Third Circuit, the Fourth Circuit,

or the Sixth Circuit – is the proper one in which Castillo should

file his petition for review? An argument can be made for each.

What has historically been a simple venue decision is

complicated now by the reality that parties and judges and

court offices can be widely separated geographically and still

come together virtually for legal proceedings.

The law requires that a petition for review of a final

order of removal “be filed with the court of appeals for the

judicial circuit in which the immigration judge completed the

proceedings.” 8 U.S.C. § 1252(b)(2); cf. Khouzam v. Att’y

Gen., 549 F.3d 235, 249 (3d Cir. 2008) (holding § 1252(b)(2)

non-jurisdictional). Castillo filed three petitions for review

here in the Third Circuit, asserting that venue is proper before

us “because the Immigration Judge completed the proceedings

in Philipsburg, Pennsylvania, which is within the jurisdiction

of this judicial circuit.” (23-2123, Pet. at 1.) We conclude,

however, that the Immigration Judge completed the

proceedings in Cleveland, Ohio, so venue does not lie here; it

lies in the United States Court of Appeals for the Sixth Circuit.

We will, therefore, transfer Castillo’s petitions to that court.

I. BACKGROUND

Castillo was admitted to the United States as a lawful

permanent resident in 1989. In March 2009, he filed an

application for naturalization with U.S. Citizenship and

Immigration Services. Soon thereafter, in July 2009, Castillo

was indicted for sexually abusing his niece. When he appeared

for his naturalization interviews in September and October of

2009, he did not disclose that those criminal charges were

pending. He was sworn in as a United States citizen on

3

October 27, 2009. Two months later, he pled guilty to third-

degree sexual assault.

In December 2019, the government filed a civil

complaint in district court under 8 U.S.C. § 1451(a) to revoke

Castillo’s naturalization. The government argued that Castillo

had provided false testimony to procure naturalization, which

demonstrated that he lacked the good moral character required

to attain citizenship. In May 2022, the district court revoked

his citizenship.

Then, in August 2022, the Department of Homeland

Security issued the earlier mentioned NTA, charging Castillo

with removability pursuant to 8 U.S.C. § 1227(a)(2)(E)(i) for

having been convicted of child abuse. The NTA was filed in

the Immigration Court located in Cleveland, Ohio, and it called

for Castillo to appear there. He applied for cancellation of

removal under 8 U.S.C. § 1229b(a). A remote hearing was

held, at which the IJ attended virtually from Richmond,

Virginia, and Castillo attended virtually from the detention

center in Phillipsburg, Pennsylvania. After the hearing, the IJ

exercised her discretion and denied Castillo’s application for

cancellation.

On appeal to the BIA, Castillo argued that he was not

removable because he was a U.S. citizen when he was

convicted of the removable offense. Before considering

Castillo’s argument, the BIA conducted a choice-of-law

analysis under its recent decision in Matter of Garcia, 28 I. &

N. Dec. 693 (B.I.A. 2023). In Garcia, the BIA held that the

choice of which Circuit Court’s law is controlling is based on

4

the “location of the Immigration Court where venue lies[.]”1

Id. at 703. Because Castillo’s NTA was filed in Cleveland,

Ohio, the BIA applied Sixth Circuit law. That ruling was

outcome determinative before the BIA. Castillo’s argument

(which is, in essence, “I can’t be removable for convictions that

occurred after I became a citizen”) is foreclosed by BIA

precedent.2 While some circuit courts – including ours – have

rejected that precedent,3 the Sixth Circuit has not yet addressed

1

[T]he controlling circuit law in Immigration Court

proceedings for choice of law purposes is the law governing

the geographic location of the Immigration Court where

venue lies, namely where jurisdiction vests and proceedings

commence upon the filing of a charging document, and will

only change if an Immigration Judge subsequently grants a

change of venue to another Immigration Court. Matter of

Garcia, 28 I. & N. Dec. 693, 703. (B.I.A. 2023).

2

In Matter of Gonzalez-Muro, 24 I. & N. Dec. 472

(B.I.A. 2008), the BIA held that a noncitizen who, like Castillo,

pled guilty to or was convicted of crimes between his unlawful

acquisition of citizenship and its revocation, was removable.

Id. at 474.

3

Three circuit courts, including ours, have rejected

Gonzalez-Muro. See Singh v. Att’y Gen., 12 F.4th 262, 277-78

(3d Cir. 2021) (holding that noncitizens who were naturalized

citizens at the time of their conviction are immune from

removal under § 1227(a)(2)(A)(iii)); Hylton v. Att’y Gen., 992

F.3d 1154, 1160 (11th Cir. 2021) (same); Okpala v. Whitaker,

908 F.3d 965, 970 (5th Cir. 2018) (same).

5

it. So the BIA was able to apply its precedent and dismiss the

appeal.

Castillo timely filed a petition for review in our Court

(C.A. No. 23-2123), asserting that venue is proper here

“because the Immigration Judge completed the proceedings in

Philipsburg, Pennsylvania.” (23-2123, Pet. at 1.)

Simultaneously, Castillo filed a motion for reconsideration

with the BIA. The BIA denied that motion, and Castillo,

seeking to overturn the ruling, filed another petition for review

(C.A. No. 23-2800), which has been consolidated with the

original petition for briefing and scheduling purposes. Then,

he filed a second motion to reopen with the BIA.4 It denied his

motion, and Castillo filed a third petition for review (C.A. No.

23-3136) relating to that order, and it too has been consolidated

with the others.

Upon screening each petition, the Clerk determined that

venue might be appropriate in the Sixth Circuit and asked the

parties to show cause why the petition should not be transferred

there. In response, the government moved to transfer the

petition to the Sixth Circuit. Castillo opposes transfer and

asserts that venue is proper here. We address this threshold

venue issue now so that the case can proceed on the merits in

the appropriate court. And the venue question implicates yet

4

Castillo argued that the attorney who represented him

before the IJ provided ineffective assistance by failing to

challenge his removability on the ground that he was a

naturalized citizen at the time that he was convicted of the

removable offense.

6

another question, namely, whether we have the inherent power

to transfer the case, if need be.

II. DISCUSSION5

A. Venue lies in the Sixth Circuit.

Under 8 U.S.C. § 1252(b)(2), venue lies in “the court of

appeals for the judicial circuit in which the immigration judge

completed the proceedings.” (emphasis added). Which

judicial circuit that might be in this case is not immediately

clear, as the NTA was docketed in, and ordered the respondent

to appear in, the Immigration Court in Ohio (covered by the

Sixth Circuit), but the hearings were conducted remotely by an

IJ physically located in Virginia (covered by the Fourth

Circuit), and with the petitioner appearing from his detention

center in Pennsylvania (covered by the Third Circuit). In that

scenario, any one of those three circuit courts of appeals could

conceivably be the appropriate venue.

The circuit courts that have addressed § 1252(b)(2) in

similar contexts have arrived at conflicting conclusions, with

the First, Second, Seventh, and Ninth Circuits on one side of

5

Pursuant to 8 U.S.C. § 1252(a)(5), we have

jurisdiction to review final orders of removal, regardless of

whether venue lies here. See Khouzam v. Att’y Gen., 549 F.3d

235, 249 (3d Cir. 2008) (holding that 8 U.S.C. § 1252(b)(2) is

a non-jurisdictional venue provision).

7

the split, and the Fourth and Tenth on the other.6 Now it is our

turn to weigh in.7

6

Compare Bazile v. Garland, 76 F.4th 5, 13 (1st Cir.

2023) (holding that “an IJ necessarily completes the

proceedings for the purposes of section 1252(b)(2) at the court

where the proceedings are commenced, absent a formal change

in administrative venue”), Sarr v. Garland, 50 F.4th 326, 332

(2d Cir. 2022) (holding that judicial venue lies in the court

“where – absent evidence of a change of venue – proceedings

commenced,” meaning the immigration court “identifie[d]” on

the charging document), Ramos v. Ashcroft, 371 F.3d 948, 949

(7th Cir. 2004) (concluding that the IJ “completed the

proceedings” where “the court is located,” meaning “where all

parties were required to file their motions and briefs” and

“where the orders were prepared and entered”), and Plancarte

Sauceda v. Garland, 23 F.4th 824, 831-32 (9th Cir. 2022)

(concluding that IJ “completed the proceedings” at the hearing

location designated on the charging document or initial hearing

notice unless the IJ had granted change of venue), with

Herrera-Alcala v. Garland, 39 F.4th 233, 240-41 (4th Cir.

2022) (holding that the IJ “complete[s] the proceedings” from

the physical location of the IJ during the hearing), and Yang

You Lee v. Lynch, 791 F.3d 1261, 1264-66 (10th Cir. 2015)

(tying “judicial venue to the IJ’s location when he or she

completes removal proceedings”).

While the Tenth Circuit’s holding focuses on “the IJ’s

location,” much of its analysis may be consistent with our

holding today. There, the charging document ordered the

petitioner who was in Oklahoma (the Tenth Circuit) “to appear

before an IJ at the Dallas Immigration Court [(the Fifth

Circuit),]” and so “it appear[ed] that IJ venue began and

remained in Dallas.” Yang You Lee, 791 F.3d at 1264-65

8

(citing 8 C.F.R. §§ 1003.14, 1003.20). Several hearings were

conducted virtually with an IJ located in an Immigration Court

in Dallas and the petitioner physically in Oklahoma. Id. at

1262. For the final hearing, the parties appeared in person in

Dallas and no virtual conferencing technology was used. Id. at

1263. Yet, for reasons that are not clear, the final hearing

notice listed an address in Oklahoma City as the hearing

location. Id. Based on “the specific factual scenario”

confronted in that case, the Tenth Circuit declined to base

judicial venue on the Oklahoma City hearing location specified

on the final hearing notice, and concluded that judicial venue

was in the Fifth Circuit, “because the IJ held the final hearing

in Dallas, Texas; [the petitioner] and the government’s

representative physically appeared in Dallas for the final

hearing; and the IJ issued his final order from the Dallas

Immigration Court.” Id. at 1264, 1266. Thus, as the Tenth

Circuit’s conclusion appears to be based on more than just the

location of the immigration court, we place it on the “other

side” of the split.

7

While we have not considered this question at length,

we briefly addressed in Luziga v. Attorney General whether

venue was appropriate in this Circuit when an IJ conducted a

remote hearing while physically outside it. 937 F.3d 244 (3d

Cir. 2019). In that case, the IJ had “entered her appearance

over proceedings in York, Pennsylvania[,] from Arlington,

Virginia.” Id. at 250. To determine that venue was proper, we

referred to a statement in an earlier nonprecedential opinion

that “venue is proper where an IJ sitting outside our Circuit

appears by video conference within our Circuit.” Id. (citing

Angus v. Att’y Gen., 675 F. App’x 193, 196 n.4 (3d Cir. 2017)

9

The operative question is where does the IJ “complete

the proceedings.” Our decision today does not turn on the term

“proceeding” but on the word “completed.” “Proceedings” in

this context is typically used to describe court-like hearings.

For example, § 1229(a)(1)(G)(i) of title 8 of the U.S. Code

requires an NTA to include “[t]he time and place at which the

proceedings will be held[,]” which implies a court-like hearing.

(per curiam)).

Castillo argues that the situation is the same in this case,

“as the IJ was physically sitting in Richmond, Virginia, but

appeared by video at the hearing location[,]” which, he says,

was in Pennsylvania. (23-2123, 3d Cir. D.I. 13 at 12-13 (citing

A.R. at 78).) But Castillo reads Luziga too broadly. First, the

parties in Luziga did not contest venue, so our discussion there

appears to be no more weighty than dicta. Luziga, 937 F.3d at

250; cf. Nederland Shipping Corp. v. United States, 18 F.4th

115, 130 (3d Cir. 2021) (explaining that “drive-by

jurisdictional rulings carry little precedential weight”)

(alteration and internal quotation marks omitted). Further,

while the petitioner in Luziga attended the hearings from York,

Pennsylvania, the charging document also directed the

petitioner to appear for a hearing at the Immigration Court in

York, and that notice and other notices and orders were

docketed in York. In our case, however, Castillo appeared

virtually from the detention center in Phillipsburg,

Pennsylvania but the charging documents were filed in, and

directed him to appear at, the Immigration Court in Cleveland,

Ohio. Because Luziga did not address which facts determined

the location of the relevant proceedings, nor do its facts mirror

the ones here, its venue decision does not control.

10

Section § 1229a(b)(1) specifies an IJ’s duties and powers in

conducting removal proceedings, including administering

oaths, receiving evidence, interrogating witnesses, and holding

parties in contempt, all of which are typically relevant to

conducting court-like hearings. Further, § 1229a(b)(2)

specifies the “form of proceeding” “may take place” in person,

or through video or telephone conference, which implies court-

like hearings. Then, § 1101(b)(4) of the same title defines an

“immigration judge” as someone being “qualified to conduct

specified classes of proceedings, including a hearing under

section 1229a of this title[,]” which indicates that hearings are

one type of proceeding.

But sometimes the word “proceedings” refers not just to

the hearings but to another part of the process, or to the entire

adjudication. For example, the statute says an NTA, which by

its very nature calls for a hearing, shall be given “in removal

proceedings[.]” 8 U.S.C. § 1229(a)(1). That indicates the

word “proceedings” is broader than just a reference to the

hearing. Also, some parts of the statute explicitly refer to both

“proceedings” and “hearings” to describe different aspects of

the process, which indicates that “proceedings” is not merely a

synonym for “hearings.” Section 1229(b)(1) requires that “an

alien be permitted the opportunity to secure counsel before the

first hearing date in proceedings under section 1229a of this

title[,]” and § 1229a(c)(1)(A) states that “[a]t the conclusion of

the proceeding the immigration judge shall decide whether an

alien is removable from the United States[]” and such decision

“shall be based only on the evidence produced at the hearing.”

That differentiation between “proceedings” and “hearings” is

especially relevant here because the IJ’s decision was rendered

after, rather than “at,” the conclusion of the hearing.

11

For our purposes today, it ultimately does not matter

whether the relevant “proceeding” is the final merits hearing or

the broader adjudication process because, under either reading,

the IJ “completed” the “proceedings” in the Cleveland, Ohio

Immigration Court.8 The NTA, the filing of which vests

jurisdiction and commences the “proceedings,” 8 C.F.R.

§ 1003.14(a), was filed in the Cleveland Immigration Court

and directed Castillo to appear there. Upon that filing,

administrative venue vested in that Immigration Court, 8

C.F.R. § 1003.20(a), and the IJ could have “change[d] venue

only upon motion by one of the parties[.]” 8 C.F.R.

§ 1003.20(b).9 Logically, then, without a formal change of

venue, the IJ conducted, and “completed,” those proceedings

where they began – in Ohio.10 See Ramos v. Ashcroft, 371 F.3d

8

In his partial concurrence, our colleague bases his

conclusion that “proceedings” means “hearings” on select

provisions in the immigration statutes in which the word

conveys that meaning in those specific contexts, but our

colleague does not account for the instances in which

“proceedings” is used more broadly. Further, he does not

address the import of the word “completed” in 8 U.S.C.

§ 1252(b)(2), which, given the facts of this case, is the basis for

our holding. We decline to speculate on whether our differing

approaches may yield different results on different facts.

9

Here, no party moved to change venue at any point

before the Immigration Court.

10

We are aware of the BIA’s recent precedential

decision in Matter of M-N-I-, 28 I. & N. Dec. 803 (BIA 2024),

which the parties have brought to our attention. That decision

addressed whether an administrative change from an

12

948, 949 (7th Cir. 2004) (explaining that the IJ “completed his

role” at the immigration court’s location, which “would have

been true even had … the IJ participat[ed] from, say, a vacation

home [outside of the Circuit]”).

Therefore, in the context of remote proceedings or

hearings, the physical locations of the IJ and other participants

are not what dictates the answer to the question of where the

proceedings occur. Instead, we agree with the First, Second,

Seventh, and Ninth Circuits that “proceedings” take place in

the Immigration Court in which the proceedings began, unless

there is a formal change of venue. See Bazile v. Garland, 76

F.4th 5, 13 (1st Cir. 2023); Sarr v. Garland, 50 F.4th 326, 332

(2d Cir. 2022); Ramos, 371 F.3d at 949; Plancarte Sauceda v.

Garland, 23 F.4th 824, 832 (9th Cir. 2022). Judicial venue

under § 1252(b)(2) thus aligns with administrative venue. See

Bazile, 76 F.4th at 13 (“[W]here the IJ completes the

proceedings – that is, judicial venue – must align with

administrative venue.”).11

immigration court in Ohio to one in New Jersey also affected

a change in venue. Id. at 806-07. The BIA answered that in

the negative. That is not, however, the issue before us now.

11

Our holding is also consistent with the BIA’s Garcia

analysis, which aligns judicial venue under 8 U.S.C.

§ 1252(b)(2) to “the geographic location of the Immigration

Court where [administrative] venue lies, namely where

jurisdiction vests and proceedings commence upon the filing

of a charging document.” 28 I. & N. Dec. at 703. As an agency

opinion on court procedure, Garcia receives no strong or

binding deference. See Garcia, 28 I. & N. Dec. at 702 n.10

(acknowledging that § 1252(b)(2) “is a judicial review

13

An alternative interpretation tying judicial venue to the

physical location of the IJ or any party would be untenable and

yield anomalous results. If the IJ were outside the country for

the final merits hearing, or when issuing a final order, where

would judicial venue lie? And even if the IJ conducted all

proceedings domestically, that “would create uncertainty for

the parties, who … may only learn the location of the IJ

presiding over a particular hearing shortly before the hearing

takes place, and long after the briefing is finished.” Bazile, 76

F.4th at 12. Surely an interpretation that would allow the IJ’s

physical movement to change where venue lies and hence,

potentially, the legal precedents governing an action, all

without the parties’ knowledge or consent, ought to be

avoided.12 And a party’s movements could likewise lead to

provision that is subject to interpretation by the circuit courts”

and that the BIA has “no role, nor [is it] afforded any deference,

in interpreting that statute” nor any “role in determining in

which circuit court a petition for review is properly filed”); see

also Ebbert v. DaimlerChrysler Corp., 319 F.3d 103, 110 (3d

Cir. 2003) (offering no Chevron deference where agency

statutory interpretation “extend[ed] beyond the administrative

stage into … judicial proceedings”).

12

In Herrera-Alcala, the Fourth Circuit held that

“[v]enue under § 1252(b)(2) depends on the location of the

Immigration Judge[,]” based on where the IJ “sat … during the

proceedings.” 39 F.4th at 241, 243. While the court suggested

that it did “not address whether an Immigration Judge acts

from his assigned work location while physically located

elsewhere,” id. at 241 n.4, nothing in its analysis limits its

conclusion that venue “depends on the location of the

14

uncertainty. Instead, the more logical interpretation is that the

place where proceedings commence with the filing of the

charging document in a particular Immigration Court is also

the place where, for venue purpose under § 1252(b)(2), the IJ

also “complete[s] the proceedings,” assuming there is no

formal change of venue. Here, the Immigration Court where

proceedings began and ended is in Cleveland, Ohio, and so

judicial venue lies in the Sixth Circuit.

B. We have the inherent power to transfer

Castillo’s petitions to the Sixth Circuit, and it

is in the interests of justice to do so.

Having determined that venue lies in the Sixth Circuit,

we now address whether we have the power to transfer

Immigration Judge” to the place where the IJ is assigned. Id.

at 243.

The Fourth Circuit’s conclusion appears to rely on the

Seventh Circuit’s opinion in Ramos, which held that the IJ

would have completed his role in Chicago (the Seventh

Circuit), even if he had participated in the proceedings

remotely while on vacation in Michigan (the Sixth Circuit). Id.

at 241 (citing 371 F.3d at 949). In Ramos, however, Chicago

was not just the IJ’s location; it was the location of the

immigration court, “where all parties were required to file their

motions and briefs” and “where the orders were prepared and

entered[.]” Ramos, 371 F.3d at 949. It was on that basis that

the Ramos court held that under § 1252(b)(2), “the alien may

petition for review” – and thus venue lies – “in the circuit

where the immigration court is located.” Id.

15

Castillo’s petitions to that circuit. Under 28 U.S.C. § 1631, if

“an appeal, including a petition for review of administrative

action, is … filed” and the “court finds that there is a want of

jurisdiction, the court shall, if it is in the interest of justice,

transfer such action or appeal to any other such court … in

which the action or appeal could have been brought at the time

it was filed or noticed[.]” That is clear enough. But, while

Congress has expressly authorized us to transfer cases when

we lack jurisdiction, it has been silent as to our power to

transfer when we have jurisdiction but venue is improper. See

Khouzam, 549 F.3d at 249 (8 U.S.C. § 1252(b)(2) is a non-

jurisdictional venue provision).

While § 1631 does not explicitly grant us the power to

transfer a case like this, neither does it forbid it, and we believe

we have the inherent power to do so. “[S]itting in equity, [we]

possess[] all of the common law equity tools of a Chancery

Court (subject, of course, to congressional limitation) to

process litigation to a just and equitable conclusion.” Eash v.

Riggins Trucking, Inc., 757 F.2d 557, 563 (3d Cir. 1985) (en

banc) (quoting ITT Cmty. Dev. Corp. v. Barton, 569 F.2d 1351,

1359 (5th Cir. 1978)). Accordingly, “in the absence of

contrary legislation, courts under their inherent powers have

developed a wide range of tools … to achieve justice in their

results.” Id. at 564. Thus, even though § 1631 does not

comment on transfer in a circumstance like this, its silence does

not “eliminate[] any inherent power in the courts to transfer a

case to cure improper venue.” Alexander v. Comm’r, 825 F.2d

499, 501 (D.C. Cir. 1987) (per curiam). We hold, then, that we

have the inherent power to take a petition over which we have

jurisdiction but not venue and transfer it to another circuit

16

where venue is proper.13 In so holding, we join a chorus of

other courts that have addressed the issue, and all are in

harmony.14

13

Our colleague’s partial dissent relies on our much

earlier holding in Schoen v. Mountain Producers Corp., 170

F.2d 707, 713 (3d Cir. 1948), and, while there are reasons to

believe that Schoen does not provide meaningful guidance to

this situation, even if it did, our later en banc decision in Eash

v. Riggins Trucking, Inc., 757 F.2d 557, 563 (3d Cir. 1985),

would control. In Eash, we recognized a category of inherent

powers that are “necessary only in the practical sense of being

useful,” and we explained that courts “may exercise this kind

of inherent power only in the absence of contrary legislative

direction.” Id. at 563. Applied here, the transfer of this case

to another forum is practically useful, and there is no contrary

legislative direction.

14

See Sorcia v. Holder, 643 F.3d 117, 122 (4th Cir.

2011) (“Although the authority to transfer a case under § 1631

exists only when the transferring court lacks jurisdiction,

courts have inherent power to transfer cases over which they

have jurisdiction but not venue.”); Dornbusch v. Comm’r, 860

F.2d 611, 615 (5th Cir. 1988) (per curiam) (holding that the

court has the power to transfer a case to a circuit court “of

proper jurisdiction and venue” “either under section 1631, or,

if it be technically inapplicable because this Court is an

improper forum due only to a want of venue rather than a want

of jurisdiction, then … under … inherent or implied power”);

Thiam v. Holder, 677 F.3d 299, 302 (6th Cir. 2012) (holding

that even though it was not jurisdictionally mandated to

transfer the case under § 1631, “it is still our option to transfer

a petition to another circuit with jurisdiction”); Cordova-Soto

17

Our holding also conforms to Congress’s apparent

intent in codifying § 1631, which was to “rescue cases

mistakenly filed in the wrong court,” and to allow transfer to

reach a just result. Dornbusch v. Comm’r, 860 F.2d 611, 613

(5th Cir. 1988) (internal quotation marks omitted); see also

Paul v. INS, 348 F.3d 43, 47 (2d Cir. 2003) (“Congress

intended [§ 1631] to aid litigants who were confused as to the

proper forum for review.”).

In considering whether transfer serves the interests of

justice, courts generally consider several factors, including the

reasonableness of a petitioner’s confusion about the proper

venue, whether transfer will delay resolution, inconvenience to

v. Holder, 732 F.3d 789, 792 (7th Cir. 2013) (“We join other

circuits that take guidance from § 1631 in assessing whether to

transfer a case from one court, like ours, having jurisdiction to

another that would also have proper venue.”); Bibiano v.

Lynch, 834 F.3d 966, 973-74 (9th Cir. 2016) (“[W]here 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.”); Yang You Lee, 791 F.3d at 1266

(“Federal circuit courts have inherent power to transfer a case

over which they have jurisdiction but lack venue.”); Becker v.

Comm’r, 852 F.2d 524, 526 (11th Cir. 1988) (per curiam)

(“[U]nder circumstances properly justifying the exercise of our

equitable powers, we may transfer an appeal to the federal

court of proper venue”); Alexander v. Comm’r, 825 F.2d 499,

501 (D.C. Cir. 1987) (per curiam) (holding that § 1631 did not

“eliminate[] any inherent power in the courts to transfer a case

to cure improper venue”).

18

the parties, and waste of judicial resources. Bibiano v. Lynch,

834 F.3d 966, 974 (9th Cir. 2016); see also Sarr v. Garland, 50

F.4th 326, 333-34 (2d Cir. 2022) (identifying additional factors

including “whether transfer would result in ‘duplicative

proceedings’ in a sister circuit”). Here, transferring Castillo’s

petitions does indeed serve the interests of justice by curing the

venue defect at issue today. In addition, the petitions have not

yet been briefed, nor have the parties argued their positions on

the merits, so, as the government points out, transfer now will

not result in “duplicative proceedings, delay resolution, or

waste judicial resources.” (23-2123, Gov. Supp. Br. at 5

(Feb. 28, 2024).) And, as we hope is apparent from our earlier

discussion on venue, Castillo’s confusion in thinking that

venue was proper here was not unreasonable.

In short, all things considered, transfer to the Sixth

Circuit is fair and warranted.

III. CONCLUSION

For the foregoing reasons, we will transfer Castillo’s

petitions to the United States Court of Appeals for the Sixth

Circuit.

19

PORTER, Circuit Judge, concurring in part and dissenting in

part.

I agree with the majority that venue lies in the Sixth

Circuit, but I draw that conclusion from the immigration stat-

utes alone, not from the regulations governing administrative

venue. I doubt that we are inherently empowered to transfer

Castillo’s petitions to the Sixth Circuit. Traditionally, federal

courts would dismiss cases over which they had jurisdiction

but lacked venue. For these reasons, I respectfully concur in

part and dissent in part.

I

The majority follows some of our sister circuits in

holding that an immigration judge “completes [removal] pro-

ceedings,” 8 U.S.C. § 1252(b)(2), where administrative venue

lies under 8 C.F.R. § 1003.20, see, e.g., Bazile v. Garland, 76

F.4th 5, 13 (1st Cir. 2023). For Castillo’s removal proceedings,

administrative venue vested in Cleveland and was not

subsequently changed, so the majority concludes that judicial

venue lies in the Sixth Circuit. But administrative venue is “[a]

convenience Congress did not write into . . . bills passed by

both Houses and presented to the President for approval.”

Madrid-Mancia v. Att’y Gen., 72 F.4th 508, 512 (3d Cir. 2023).

I would reach the same result based only on the text of the

immigration statutes.

Specifically, I would analyze § 1252(b)(2) based on an

intratextual comparison of “proceedings” elsewhere in the

immigration statutes. The majority determines where

Castillo’s removal proceedings “t[ook] place” by referring to

administrative regulations, considering where “administrative

venue vested” under § 1003.20(a) and whether it was subse-

1

quently changed under § 1003.20(b). Maj. Op. 12, 13. But the

immigration statutes independently identify where removal

proceedings under 8 U.S.C. § 1229a take place. As part of a

notice to appear (“NTA”) for removal proceedings, the gov-

ernment is required to inform aliens of “[t]he time and place at

which the proceedings will be held.” 8 U.S.C.

§ 1229(a)(1)(G)(i) (emphasis added). Castillo’s NTA

“ordered” him “to appear before an immigration judge” in

Cleveland. A.R. 502. Subsequently, the immigration statutes

permit the government to change the place of removal pro-

ceedings. In that event, the government is required to inform

aliens in writing of “the new time or place of the proceedings.”

§ 1229(a)(2)(A)(i). This kind of notice is dubbed a notice of

hearing (“NOH”). See, e.g., Campos-Chaves v. Garland, 144

S. Ct. 1637, 1643 (2024). Castillo received NOHs for each

subsequent hearing conducted under § 1229a. Several of these

NOHs directed Castillo to appear at “new time[s]” for removal

proceedings. § 1229(a)(2)(A)(i). But none of the NOHs

directed him to appear at a “new . . . place” other than

Cleveland. Id. Castillo does not argue that his NTA or NOHs

failed to notify him of the “place” of his removal proceedings

or were otherwise deficient under § 1229(a). For these reasons,

I agree with the majority that Castillo’s removal proceedings

took place in Cleveland.1 But for future petitions, our

1

The majority misunderstands the narrow basis for my partial

concurrence. It faults me for not discussing the meaning of

“completed,” but I agree that the Immigration Judge completed

the proceedings where they took place, regardless of her

physical location. I disagree with the majority’s reasoning for

why Castillo’s proceedings took place in Cleveland, which

does not depend on the meaning of “completed.” Moreover,

my partial concurrence does not depend on whether

2

approaches may yield different results—if the “place”

specified in the NTA and NOHs differs from administrative

venue under § 1003.20.

II

I also write separately because the majority concludes

that we are inherently empowered to transfer Castillo’s peti-

tions to the Sixth Circuit. There is no statutory authority for a

circuit court to transfer a case over which it has jurisdiction but

for which venue lies elsewhere. Under 28 U.S.C. § 1631,

federal courts may transfer cases where “there is a want of

jurisdiction,” not where there is jurisdiction but venue lies

elsewhere. Federal district courts, but not circuit courts, may

transfer cases where there is jurisdiction but venue lies else-

where. 28 U.S.C. § 1406(a). Because we lack statutory

authority to transfer Castillo’s petitions, we directed the parties

to submit supplemental briefs as to whether we have inherent

power to do so. After reviewing the supplemental briefs, I am

not convinced that we have such a power.

A

The Constitution vests “the judicial Power of the United

States” exclusively in the federal courts. U.S. Const. art. III,

§ 1. “[A]t the core of the judicial power” is “the authority to

“proceedings” refers only to removal hearings. Castillo’s NTA

and NOHs tell us where his removal proceedings took “place,”

§§ 1229(a)(1)(G)(i) and 1229(a)(2)(A)(i), regardless of

whether “proceedings” refers to removal hearings or the

removal process more generally. I agree with the majority that

we need not resolve the latter issue.

3

determine the facts and the law in an individual case, and to

render a final, binding judgment based on those

determinations.” Jones v. Hendrix, 599 U.S. 465, 487 (2023).2

The Supreme Court has identified a few narrow limits on

Congress’s authority to control this core case-deciding func-

tion. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219

(1995) (forbidding Congress from “retroactively commanding

the federal courts to reopen final judgments”); Patchak v.

Zinke, 583 U.S. 244, 250 (2018) (Congress may not pass “a

statute that says, ‘In Smith v. Jones, Smith wins.’” (quoting

Bank Markazi v. Peterson, 578 U.S. 212, 225 (2016))).

Aside from these limits, the Constitution vests Congress

with significant power over the operation of the federal courts.

Congress has the power to “make all Laws which shall be

necessary and proper for carrying into Execution . . . all other

Powers vested by this Constitution in the Government of the

United States, or in any Department or Officer thereof.” U.S.

Const. art. I, § 8. This “horizontal” aspect of the Necessary and

Proper Clause expressly empowers Congress to pass laws for

carrying into execution the federal judicial power. See Wayman

v. Southard, 23 U.S. 1, 22 (1825) (entertaining “no doubt

whatever” that Congress is empowered under the Necessary

and Proper Clause “to make laws for carrying into execution

all the judgments which the judicial department has power to

pronounce”); Hanna v. Plumer, 380 U.S. 460, 472 (1965)

(“[T]he constitutional provision for a federal court system

2

In addition to the authority to issue binding judgments, the

judicial power is often distinguished from the executive and

legislative powers as “includ[ing] the power to authorize dep-

rivations of private rights, such as through a criminal convic-

tion or a finding of liability.” William Baude, Adjudication

Outside Article III, 133 Harv. L. Rev. 1511, 1522 (2020).

4

(augmented by the Necessary and Proper Clause) carries with

it congressional power to make rules governing the practice

and pleading in those courts[.]”); John Harrison, Enumerated

Federal Power and the Necessary and Proper Clause, 78 U.

Chi. L. Rev. 1101, 1121 (2011) (“[T]he so-called horizontal

Necessary and Proper Clause . . . gives Congress power to

carry into execution the judicial and executive powers.”).

The Constitution does not expressly empower the fed-

eral courts to develop rules helpful for executing their case-

deciding function. See, e.g., Amy Coney Barrett, Procedural

Common Law, 94 Va. L. Rev. 813, 846 (2008) (“The

Constitution does not, on its face, grant federal courts power

over procedure.”). Nevertheless, federal courts have consist-

ently asserted that they possess inherent powers to regulate

their own operations, even without congressional authoriza-

tion. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991)

(noting that a “court may bar from the courtroom a criminal

defendant who disrupts a trial” or “may dismiss an action on

grounds of forum non conveniens” as examples of inherent

judicial powers).

We have observed that “the notion of inherent [judicial]

power has been described as nebulous[.]” Eash v. Riggins

Trucking, Inc., 757 F.2d 557, 561 (3d Cir. 1985) (en banc). In

Eash, we grouped inherent powers into tiers of descending

importance. Id. at 562–64. Some inherent powers are those of

“strict functional necessity” to the core case-deciding function,

such as the contempt power. Id. at 562–63. Others are

“necessary only in the practical sense of being useful[,]” such

as the doctrine of forum non conveniens. Id. at 563–64. We

upheld a district court’s inherent power “to sanction errant

attorneys financially . . . for conduct not rising to the level of

contempt.” Id. at 566. We did not clarify whether this power is

5

strictly necessary to the court’s case-deciding function or

merely useful. Id. at 564 (“Courts rarely have explained exactly

what kind of authority they mean to invoke when using an

inherent power to sanction an attorney.”). But we suggested

that the power is “reasonably necessary to deter abuse of the

judicial process.” Id. at 567. And while the particular sanction

in Eash was not of “ancient origin,” Link v. Wabash R. Co.,

370 U.S. 626, 630 (1962), we emphasized that it was related to

“several species of sanctions on those who abuse the judicial

process” with established roots in the federal court system,

Eash, 757 F.2d at 561.

B

The inherent power that the majority recognizes is dif-

ferent from the power recognized in Eash for two important

reasons. First, the inherent power to transfer because venue lies

elsewhere is not essential (or even beneficial) to our case-

deciding function. If we lack the inherent power to transfer, we

must either retain jurisdiction over Castillo’s petitions or

dismiss them without prejudice. Neither option impairs our

case-deciding function. If we retained jurisdiction over

Castillo’s petitions and reached their merits, we would be

exercising our case-deciding function to its fullest extent.

Immigration law is federal law and therefore is identical in the

Third and Sixth Circuits, so we are competent to adjudicate

Castillo’s petitions even if venue lies elsewhere.3 Alter-

3

Of course, we may interpret the immigration statutes differ-

ently than the Sixth Circuit. See Maj. Op. 5 (discussing a dif-

ference in interpretation relevant to Castillo’s petitions). But

courts cannot change statutes by interpreting them. See John

Harrison, Federal Judicial Power and Federal Equity Without

6

natively, we may be required to dismiss Castillo’s petitions

without prejudice. As discussed below, federal courts tradi-

tionally dismissed cases over which they had jurisdiction but

not venue, so this outcome would not have been understood to

conflict with our case-deciding function. Ultimately, the power

recognized by the majority is arguably beneficial only in a

broader sense—in effectuating Congress’s intent for Castillo’s

petitions to be heard in the Sixth Circuit. But commentators

have criticized the use of inherent powers that are not strictly

necessary for issuing binding judgments in cases over which

courts have jurisdiction. See, e.g., Robert J. Pushaw, The

Inherent Powers of Federal Courts and the Structural

Constitution, 86 Iowa L. Rev. 735, 743 (2001) (“As the early

Justices recognized . . . , the Necessary and Proper Clause

authorizes Congress alone to determine whether or not to

bestow beneficial powers.”). We are not clearly authorized to

assert such powers, but Congress is clearly authorized to confer

them upon us, so I fear that we may be “aggrandizing . . . power

at the expense of another branch.” Freytag v. Comm’r, 501

U.S. 868, 878 (1991).

Second, the power the majority recognizes is incon-

sistent with the historical practices of federal courts. The first

congressional authorization for change of venue was included

in the Judicial Code of 1948. See Brainerd Currie, Change of

Venue and the Conflict of Laws, 22 U. Chi. L. Rev. 405, 407

(1955). Federal courts previously had no power to transfer

cases due to improper venue. See 17 Moore’s Federal Practice

§ 111App.101 (Matthew Bender 3d ed.) (“Unlike the present

rule enacted by the Judicial Code in 1948, . . . [n]o machinery

existed to transfer cases.”). Instead, “if a defendant made a

Federal Equity Powers, 97 Notre Dame L. Rev. 1911, 1915

(2022) (“[T]he law is external to the courts.”).

7

proper and timely objection to improper venue of an action, the

district court, if it sustained the objection, had no alternative

but to dismiss as to the objecting defendant.” Id. (collecting

cases). Thus, if a court had jurisdiction but lacked venue, there

were two possible outcomes. If the defendant objected to

venue, the court dismissed the action. But if the defendant

waived his objection to venue by entering an appearance on the

merits, the court exercised its jurisdiction and reached the

merits. See Interior Constr. & Improv. Co. v. Gibney, 160 U.S.

217, 219 (1895) (describing venue as “a matter of personal

privilege, which the defendant may insist upon, or may waive,

at his election”). Transfer to a proper venue was not an option.

We recognized this principle in Schoen v. Mountain

Producers Corp., 170 F.2d 707 (3d Cir. 1948). There, the

District Court dismissed because of improper venue. Id. at 709.

On appeal, the plaintiff argued that the District Court erred in

finding venue improper. Id. at 710. We recognized that 28

U.S.C. § 1406(a) allowed district courts to transfer actions

where they had jurisdiction but not proper venue. Id. at 713.

But § 1406(a) was not in force when “the judgment here under

review was entered.” Id. Absent § 1406(a)’s authority to

transfer, “the nonresident defendants were entitled, under the

law as it then stood, to the dismissal of the complaint as to

them.” Id. “Moreover the court then had no power to transfer

the case even if it had been asked to do so.” Id. (emphasis

added). Thus, Schoen expressly rejected the possibility that

courts have an inherent power to transfer where they have

jurisdiction but not proper venue.4

4

The majority criticizes my reliance on the “much earlier”

Schoen, but Schoen’s reasoning is fully consistent with the

modern understanding of how venue works. Maj. Op. 17 n.13.

8

More recently, as the majority recognizes, circuit courts

have uniformly asserted the beneficial power to transfer cases

where they have jurisdiction but not proper venue. See, e.g.,

Even before Congress’s enactment of the Judicial Code of

1948, courts accurately distinguished between venue and

jurisdiction. See Neirbo Co. Bethlehem Shipbuilding Corp.,

308 U.S. 165, 168, 169 (1939) (recognizing that jurisdiction

limits a court’s “power to adjudicate” while venue is a “liti-

gant’s convenience” that “may be lost by failure to assert it

seasonably”); Indus. Addition Ass’n v. Comm’r, 323 U.S. 310,

313 (1945) (“Want of jurisdiction, unlike want of venue, may

not be cured by consent of the parties; but when the court has

jurisdiction, it has power to decide the case brought before it,

even though the court having venue is one sitting in another

circuit.”). Our decision in Schoen adverted to this distinction,

noting that “venue is a matter of personal privilege which a

defendant may . . . waive at his election,” 170 F.2d at 713,

unlike jurisdiction, which “involves a court’s power to hear a

case, can never be forfeited,” and “require[s] correction” sua

sponte, United States v. Cotton, 535 U.S. 625, 630 (2002)

(citing Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149

(1908)). Thus, the Judicial Code of 1948’s “provision . . . that

improper venue is a waivable matter, not jurisdiction, and is

waived unless timely and sufficient objection is made” is

merely “declaratory of prior law.” 17 Moore’s Federal

Practice § 110App.103[3] (Matthew Bender 3d ed.) (emphasis

added) (citing 28 U.S.C. § 1406(b)). The basis for the uniform

rule before the Judicial Code of 1948—that “a court was

always required to dismiss an action where there was a mere

defect in venue”—was not an antiquated conflation of juris-

diction and venue. Hohensee v. News Syndicate, Inc., 286 F.2d

527, 529 (3d Cir. 1961).

9

Yang You Lee v. Lynch, 791 F.3d 1261, 1266 (10th Cir. 2015)

(“Federal circuit courts have inherent power to transfer a case

over which they have jurisdiction but lack venue.”); Sorcia v.

Holder, 643 F.3d 117, 122 (4th Cir. 2011) (same); Dornbusch

v. Comm’r, 860 F.2d 611, 613–14 (5th Cir. 1988) (collecting

cases). To my knowledge, the first decision recognizing this

power was Pac. Gas & Elec. Co. v. Fed. Power Comm’n, 272

F.2d 510 (D.C. Cir. 1958). But the D.C. Circuit did not cite to

any legal authority to justify its recognition of this power. It

simply asserted that “we think that court had inherent power

based on sound principles of judicial administration to transfer

the case to this court[.]” Id. at 511. And as a subsequent panel

of the Fifth Circuit recognized, the D.C. Circuit’s ipse dixit is

inconsistent with historical practice. See Gulf Oil Corp. v. Fed.

Power Comm’n, 330 F.2d 824, 825 (5th Cir. 1964) (“At

common law an objection as to venue goes in abatement[.]”);

see also Hyman v. City of Gastonia, 466 F.3d 284, 287 (4th

Cir. 2006) (“At common law, abatement is the equivalent of a

dismissal, and it results from the defendant raising some

procedural or formality error in the plaintiff’s action.”).

Altogether, I dissent from the majority’s recognition of

an inherent power to transfer. Between retaining jurisdiction

over Castillo’s petitions or dismissing them, I lean towards

dismissal. Traditionally, courts dismissed cases when venue

was improper and defendants objected to venue, without any

express statutory authority to dismiss other than the venue

statute itself. Gibney, 160 U.S. at 219. A venue statute was

understood as creating a legal privilege for defendants not to

defend against lawsuits in certain courts. Id. Understood in this

way, § 1252(b)(2) gives the Attorney General the privilege of

responding to an alien’s petition in the circuit court where the

Immigration Judge completed removal proceedings. He has a

10

corollary privilege not to respond to the petition in the other

circuit courts. Here, venue is proper in the Sixth Circuit and the

Attorney General objected to venue, thereby invoking his

privilege not to respond to Castillo’s petitions in the Third

Circuit. As a result, we should enforce the Attorney General’s

statutory venue privilege as federal courts traditionally

enforced such privileges—by dismissing Castillo’s petitions,

not by transferring them or by retaining jurisdiction and

reaching their merits.

* * *

For these reasons, I respectfully concur in part and dis-

sent in part.

11