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 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…

Concurrence by Judge CALLAHAN

OPINION

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 *969 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 absen-tia 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 the IJ’s ruling, and Bibiano petitioned for review with this court.

We do not decide the merits of Bibiano’s…

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 12-18.