Fidel Bibiano v. Loretta E. Lynch

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.