Yang You Lee v. Lynch

• Decision Date: 01 July 2015
• Docket Number: No. 14–9573.,14–9573.
• Citation: 791 F.3d 1261
• Parties: YANG YOU LEE, a/k/a Tou Xiong Lee, Petitioner, v. Loretta E. LYNCH, United States Attorney General,Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

791 F.3d 1261

YANG YOU LEE, a/k/a Tou Xiong Lee, Petitioner

v.Loretta E. LYNCH, United States Attorney General^* Respondent.

No. 14–9573.

United States Court of Appeals, Tenth Circuit.

July 1, 2015.

Vinesh Patel, Vinesh Patel Law Firm, Dallas, TX, for Petitioner.

Surell Brady, Tangerlia Cox, General Counsel, Sunah Lee, United States Department of Justice Office of Immigration Litigation, Washington, DC, DOH/EOIR/BIA, Attn: Certification Unit, Falls Church, VA, John Longshore, Director, DHS Immigration and Customs Enforcement, Centennial, CO, for Respondent.

Before BRISCOE, Chief Judge, McKAY and PHILLIPS, Circuit Judges.

ORDER TRANSFERRING PETITION FOR REVIEW

McKAY, Circuit Judge.

Mr. Yang You Lee is a native and citizen of Thailand. He derived refugee status through his Laotian parents and was admitted to the United States as a lawful permanent resident in 1987 at age five. In 2014, an immigration judge (IJ) found him removable for committing a crime of violence (a misdemeanor domestic assault) and denied his application for cancellation of removal. The Board of Immigration Appeals (BIA) agreed with the IJ and dismissed his appeal. Mr. Lee then filed a petition for review in the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit summarily transferred the petition to this court sua sponte.

We asked the parties to address venue under 8 U.S.C. § 1252(b)(2), which provides: “The petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings.” The parties have provided their views, and having considered them, we now transfer the petition back to the Fifth Circuit based on our conclusion that § 1252(b)(2) is a non-jurisdictional venue provision, that venue is proper in the Fifth Circuit, and that the interests of justice will be best served if the Fifth Circuit adjudicates Mr. Lee's petition.

I. PROCEDURAL BACKGROUND

During his removal proceedings, Mr. Lee was detained in Oklahoma, which is within the Tenth Circuit. Several hearings were conducted via video conference with an IJ located in an Immigration Court in Dallas, Texas, which is within the Fifth Circuit. Mr. Lee was physically present in Oklahoma for those hearings. Mr. Lee's penultimate hearing involved a video conference between the IJ in Dallas and Mr. Lee in Tulsa, Oklahoma. At the conclusion of that hearing, the IJ instructed Mr. Lee that he would be transported to Dallas for the final hearing, stating that the address of the Dallas Immigration Court would appear at the top of the hearing notice he would be receiving. The notice of the final hearing did in fact set forth the address of the Dallas Immigration Court at the top but in the body specified an Oklahoma City address as the location of the final hearing.

Mr. Lee physically appeared before the IJ in the Dallas Immigration Court for the final hearing, as did the government's attorney. There were no witnesses, and no telephone or video conferencing was used. The IJ issued his final order of removal from the Dallas Immigration Court. In the BIA's order dismissing Mr. Lee's appeal, the BIA noted Oklahoma City next to Mr. Lee's file number, apparently indicating the BIA's view that the final hearing was located there. As noted, Mr. Lee filed his petition for review in the Fifth Circuit, which transferred the petition to our circuit sua sponte and without explanation.

II. DISCUSSION

A. § 1252(b)(2) is a non-jurisdictional venue provision

Before we can determine whether venue is proper in the Tenth Circuit, we must first determine whether 8 U.S.C. § 1252(b)(2) affects our subject matter jurisdiction (and thus requires us to transfer the petition) or is an ordinary venue provision. We have not answered that question. See Salgado–Toribio v. Holder, 713 F.3d 1267, 1272 n. 2 (10th Cir.2013). A number of our sister circuits, however, have analyzed and decided that issue, concluding that § 1252(b)(2) is a non-jurisdictional venue provision. See Thiam v. Holder, 677 F.3d 299, 301–02 (6th Cir.2012) ; Sorcia v. Holder, 643 F.3d 117, 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. Gonzales, 463 F.3d 253, 258–62 (2d Cir.2006) ; Jama v. Gonzales, 431 F.3d 230, 233 & n. 3 (5th Cir.2005) (per curiam); Georcely v. Ashcroft, 375 F.3d 45, 49 (1st Cir.2004) ; Nwaokolo v. INS, 314 F.3d 303, 306 n. 2 (7th Cir.2002) (per curiam).¹ These courts have invoked a number of bases for their conclusions, including that (1) the plain language of the statute refers only to venue, not jurisdiction; (2) the statute was part of the REAL ID Act of 2005, which elsewhere carefully detailed and defined jurisdiction and judicial review in the immigration context; (3) § 1252(b)(2)'s phrase “appropriate court of appeals” is broad enough to permit a circuit court to adjudicate a petition filed in the wrong venue; and (4) § 1252(b)(2) is titled “Venue and forms,” and thus contains no hint that it concerns jurisdiction. See, e.g., Moreno–Bravo, 463 F.3d at 258–62 (relying on all of these rationales).²

We find the reasoning of our sister circuits persuasive and therefore join in the consensus that § 1252(b)(2) is a non-jurisdictional venue provision. This holding requires us to consider whether venue is proper in the Fifth Circuit and, if it is, whether we should exercise jurisdiction over Mr. Lee's petition anyway.

B. Venue is proper in the Fifth Circuit

When interpreting a statute, we start with its plain language. Tuckel v. Grover, 660 F.3d 1249, 1252 (10th Cir.2011). Section § 1252(b)(2) states: “The petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings.” This ties judicial venue to the IJ's location when he or she completes removal proceedings, which in this case appears to be in the Fifth Circuit because the IJ held the final hearing in Dallas, Texas; Mr. Lee 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.

But the Attorney General argues that venue is proper in the Tenth Circuit because the final hearing location was docketed in Oklahoma City, Oklahoma. In support, she directs our attention to a memorandum issued by the Office of the Chief Immigration Judge (OCIJ) within the Executive Office for Immigration Review (EOIR). In relevant part, it states that an IJ sitting via telephone or video conference must identify, on the record, “the specific hearing location where he or she is conducting the hearing (i.e., the location where the case is docketed for hearing ).” Interim Operating Policies and Procedures Memorandum No. 04–06: Hearings Conducted through Telephone and Video Conference (Aug 18, 2004) at 2, available at http://www.justice.gov/eoir/oppm-log, then follow link for No. 04–06 (last visited June 8, 2015). The memorandum further states that the hearing location (i.e., where the case was docketed for the hearing) does not change just because an IJ appears via video conference from a different location. Id. It also provides that “the circuit law that is to be applied to proceedings conducted via telephone or video conference is the law governing the hearing location.” Id.

In addition to the internal memorandum, the Attorney General points us to a regulation, 8 C.F.R. § 1003.20(a)(4), that the EOIR proposed in 2007 but never promulgated, which provides:

For purposes of judicial review of a final order of removal, as provided in section 242(b)(2) of the [Immigration and Nationality] Act, [8 U.S.C. § 1252(b)(2),] the immigration judge is deemed to complete the proceedings at the final hearing location, without regard to whether the immigration judge, or any party, representative, witness or other person participates in the final hearing through telephone or video conference. For purposes of this provision, the final hearing location refers to the place of the hearing identified on the notice for the final hearing.

72 Fed.Reg. 14494–01, 14497 (Mar. 28, 2007).

In essence, the Attorney General asks us to defer to these agency pronouncements and conclude that venue under § 1252(b)(2) is proper in the Tenth Circuit because the final hearing was docketed within its geographical boundaries. We decline to do so.

We first conclude that the internal memorandum is not applicable to this case. It addresses venue and applicable circuit law when a hearing is held by telephone or video conference, but Mr. Lee's final hearing did not employ any form of remote conferencing—Mr. Lee, the government's representative, and the IJ were physically present in Dallas for the final hearing.

The proposed judicial-venue regulation presents a question of deference under Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). See Tax & Accounting Software Corp. v. United States, 301 F.3d 1254, 1260–61 & n. 5 (10th Cir.2002) (considering Skidmore deference to proposed regulations under Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) ).³ Under Skidmore, a proposed regulation is “entitled to respect” if it has the “power to persuade.” Skidmore, 323 U.S. at 140, 65 S.Ct. 161. The deference we owe to an agency interpretation depends on “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.” Id.

In the factual context of this case, we do not consider the proposed regulation concerning judicial venue under § 1252(b)(2) persuasive. That regulation was part of proposed changes to the rule governing proper venue for IJs. Here, it appears that IJ venue began and remained in Dallas. Under existing regulations, which, unlike the proposed regulations, have the power of law, “[v]enue ... lie...