Opinion
20-9624
09-24-2021
ACHALEKE FUANYA, Petitioner, v. MERRICK B. GARLAND, United States Attorney General, Respondent.
Petition for Review
Before TYMKOVICH, Chief Judge, KELLY and HOLMES, Circuit Judges.
ORDER TRANSFERRING PETITION FOR REVIEW
Achaleke Fuanya is a native and citizen of Cameroon. An Immigration Judge (IJ) denied his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) after finding he was not a credible witness. The Board of Immigration Appeals (BIA) dismissed his appeal. After Mr. Fuanya filed a petition for review in this court, the government moved to transfer the petition to the United States Court of Appeals for the Fifth Circuit. Because we conclude that venue is proper in the Fifth Circuit and that the interests of justice would be best served if that court adjudicates Mr. Fuanya's petition for review, we grant the government's motion and transfer the petition to the Fifth Circuit.
I. Background
In April 2019, Mr. Fuanya applied for admission to the United States at San Ysidro, California. He did not possess valid documentation allowing his entry, but he expressed a fear of being harmed if he were returned to his home country of Cameroon. After an asylum officer found that Mr. Fuanya demonstrated a credible fear of persecution or torture, he was served with a notice to appear (NTA) charging him as an inadmissible arriving alien. The NTA ordered Mr. Fuanya to appear before an IJ at a location in Jena, Louisiana. Mr. Fuanya was detained and ultimately transferred to the Winn Correctional Facility in Winnfield, Louisiana, where he has remained throughout his removal proceedings.
Mr. Fuanya was advised that the NTA had been filed with the Office of the Immigration Judge at Chaparral, New Mexico. He was directed to send all correspondence regarding his case to that location. The Immigration Court in New Mexico also issued several subsequent hearing notices, all of which scheduled a hearing at the Winnfield Correctional Facility, where Mr. Fuanya was detained. See Admin. R. at 1048, 1049, 1053 (scheduling a video hearing before an IJ, stating that Mr. Fuanya "will be present via tele/video," and ordering all other parties and witnesses to report to the address of the Winnfield Correctional Facility); id. at 1050 (scheduling a hearing before an IJ at the Winnfield Correctional Facility).
The Immigration Court in Chaparral, New Mexico, is apparently sometimes referred to as the Otero Immigration Court. See Admin. R. at 1063.
Prior to Mr. Fuanya's final hearing on April 24, 2020, his counsel filed a motion asking the Immigration Court to waive his appearance in person at the "Winnfield Immigration Court" and allow him to appear telephonically. Id. at 1055. An IJ granted counsel's motion. Both the motion and the IJ's order were captioned at the "Office of the Immigration Judge" in "Winnfield, Louisiana." Id. at 1054, 1057 (capitalization omitted).
The IJ opened the final removal hearing on April 24 by stating:
This is Immigration Judge Nicholas Martz in the Falls Church Immigration Adjudication Center presiding over the matter of . . . Mr. Fuanya, who is physically present in the Winnfield, Louisiana Detention Center. These proceedings are being conducted by video teleconference. Due to the COVID-19 pandemic event, both counsel . . . have been permitted to appear telephonically today.Id. at 442. The caption on the hearing transcript for the April 24 hearing does not list a particular Immigration Court but it includes the following notation in the heading information: "Place: OTERO, NEW MEXICO." Id. at 441. The IJ's oral decision, also issued on April 24, is captioned at the Immigration Court in Otero, New Mexico. It includes a statement about the participants' physical locations similar to the IJ's statement at the hearing:
Because of the COVID-19 pandemic event, counsel from DHS and for the respondent were both permitted to appear telephonically. The respondent is physically located in the Winnfield, Louisiana Detention Center, and the Immigration Judge is located at the Falls Church Immigration Adjudication Center in Falls Church, Virginia. The proceedings were conducted via video teleconference.Id. at 400-01. An addendum of law, which was incorporated into the IJ's oral decision by reference, cites mostly decisions by the Fifth Circuit and no decision by the Tenth Circuit. The IJ's minute order form is captioned at the Immigration Court in Chaparral, New Mexico.
Mr. Fuanya appealed the IJ's decision to the BIA. He did not argue the IJ erred by applying Fifth Circuit law. The heading information in the BIA's decision lists Mr. Fuanya's file number followed by "Winnfield, LA" and a footnote stating:
In accordance with Operating Policies and Procedures Memorandum No. 04-06, removal proceedings before the Immigration Judge in this matter were completed in Winnfield, Louisiana. The case was docketed for hearing in Winnfield, Louisiana, the respondent was located in Winnfield, Louisiana, and the Immigration Judge who was sitting in Falls Church, Virginia, heard the case through video conference pursuant to section 240(b)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(2)(A) (2018). Accordingly, we will consider the respondent's claim under the precedent of the United States Court of Appeals for the Fifth Circuit.Id. at 3 & n.1. The BIA dismissed Mr. Fuanya's appeal in an order dated October 15, 2020. Mr. Fuanya filed a petition for review on November 16, 2020. On November 30, 2020, on its own motion, the BIA vacated its earlier decision and reinstated the proceedings, then issued an amended decision "[t]o correct an error in [its] original decision (missing text)." Id. at n.2. Mr. Fuanya did not file a new petition for review.
II. Discussion
Mr. Fuanya filed his petition for review of the BIA's decision in the Tenth Circuit. He argues that the BIA erred by applying Fifth Circuit law, rather than Tenth Circuit law, in his appeal. He also challenges the BIA's affirmance of the IJ's adverse credibility finding and the agency's failure to grant CAT relief based on the documents he submitted. The government has moved to transfer Mr. Fuanya's petition to the Fifth Circuit. Mr. Fuanya opposes a transfer.
We first hold that the Fifth Circuit is the proper venue for Mr. Fuanya's petition. Having reached that determination, we conclude that the interests of justice will be best served by transferring the petition to that circuit.
A. Venue is Proper in the Fifth Circuit
Venue in the court of appeals is governed by 8 U.S.C. § 1252(b)(2), which provides that "[t]he petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings." Section 1252(b)(2) is an ordinary, non-jurisdictional venue provision. See Yang You Lee v. Lynch, 791 F.3d 1261, 1263-64 (10th Cir. 2015). Thus, if venue is proper in another circuit we may, but are not required to, transfer a petition for review. See id. at 1263.
We have noted that "[n]o existing regulation interprets § 1252(b)(2)." Id. at 1266. In Yang You Lee, where the final removal hearing involved neither telephone nor video conferencing, see id. at 1263, we construed § 1252(b)(2) as "[tying] judicial venue to the IJ's location when he or she completes removal proceedings," id. at 1264. In this case, however, Mr. Fuanya's final removal hearing was conducted by both telephone and video conferencing, as permitted by 8 U.S.C. § 1229a(b)(2)(A), and neither party contends that judicial venue is determined based on the IJ's physical location in Virginia during that hearing. The government argues that, in these circumstances, circuit-court venue is determined by "the location where the case is docketed for hearing," per an Interim Operating Policies and Procedures Memorandum. U.S. Dep't of Just., Exec. Office for Immigr. Rev., Office of the Chief IJ, Interim Operating Policies & Procs. Mem. No. 04-06: Hr'gs Conducted through Tel. & Video Conf., at 2 (Aug. 18, 2004), available at http://www.justice.gov/eoir/efoia/ocij/oppm04/04-06.pdf (emphasis omitted) (OPPM No. 04-06).
OPPM 04-06 was cancelled effective November 6, 2020. See U.S. Dep't of Just., Exec. Office for Immigr. Rev., Office of the Dir., Immigr. Ct. Hr'gs Conducted by Tel. & Video Teleconf'g, at 1 (Nov. 6, 2020), available at https://www.justice.gov/eoir/eoir-policy-manual/OOD2103/download. But it was effective at the time the IJ completed Mr. Fuanya's proceedings on April 24, 2020.
OPPM 04-06 directs an IJ conducting a hearing via telephone or video conference to "identify the specific hearing location where he or she is conducting the hearing (i.e., the location where the case is docketed for hearing)." Id. It notes that "[t]he immigration judge's participation in the hearing through video conference "[does] not change the hearing location." Id. OPPM 04-06 further 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 (i.e., the location where the case is docketed for hearing)." Id. Finally, it states that "[w]hen a charging document is filed with an Administrative Control Immigration Court [ACIC] pursuant to 8 C.F.R. § 1003.11, the proceedings may actually take place in a location other than where the charging document is filed." Id.
Section 1003.11 provides that an ACIC is an Immigration Court "that creates and maintains Records of Proceedings for Immigration Courts within an assigned geographical area." 8 C.F.R. § 1003.11. Consistent with OPPM 04-06, the BIA has held that "[t]he circuit law applied to proceedings conducted via video conference is the law governing the docketed hearing location, as opposed to the location of the administrative control court." Matter of R-C-R-, 28 I. & N. Dec. 74, 74 n.1 (B.I.A. 2020).
We have not applied OPPM No. 04-06 in a published decision to determine proper venue in the court of appeals. But we have applied it to determine the applicable law in deciding a petition for review. In Medina-Rosales v. Holder, 778 F.3d 1140, 1142-43 (10th Cir. 2015), we cited OPPM 04-06 in holding that Tenth Circuit law applied because the case was docketed for hearing in Tulsa, Oklahoma, despite the IJ's physical presence in Dallas, Texas, during the video conference hearing. Moreover, the filing of the NTA in the Dallas Immigration Court-which was the designated ACIC in that case-did not change our determination regarding the applicability of Tenth Circuit law. Id. at 1143.
In Yang You Lee, we held that OPPM 04-06 was not relevant to our venue determination because the alien's "final hearing did not employ any form of remote conferencing." 791 F.3d at 1264. But we have held in an unpublished decision that, per OPPM 04-06, venue was proper in this court because the case was docketed for a video conference hearing at a detention center in Chaparral, New Mexico, despite the IJ's physical presence in El Paso, Texas, during the video conference hearing. See Vargas v. Sessions, 680 Fed.Appx. 681, 684 (10th Cir. 2017).
All hearings in Mr. Fuanya's case were docketed to occur in Louisiana, which lies within the jurisdictional territory of the Fifth Circuit, see 28 U.S.C. § 41. The government also represents-and Mr. Fuanya does not dispute-that the Immigration Court in New Mexico acted as the ACIC in Mr. Fuanya's case, i.e., it was the court that created and maintained the records of the proceedings pursuant to 8 C.F.R. § 1003.11. Thus, the government argues that Mr. Fuanya's removal proceedings took place in Louisiana where his removal hearings were all docketed to occur, and neither the status of the Immigration Court in New Mexico as the ACIC in the case nor the IJ's participation via video conference from Falls Church, Virginia, changed the location of his final hearing at which the IJ completed the proceedings. Consistent with the government's contentions, the BIA cited OPPM 04-06 in holding that Mr. Fuanya's removal proceedings were completed in Louisiana. It therefore applied Fifth Circuit law in deciding his appeal.
Mr. Fuanya does not acknowledge Medina-Rosales or try to distinguish the venue analysis in this case from our reliance on OPPM 04-06 to determine the applicable law in Medina-Rosales. He contends that, contrary to OPPM 04-06, the regulations clearly define the proper circuit-court venue as the Immigration Court where jurisdiction vests and should govern here. See 8 C.F.R. § 1003.14(a) ("Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service."); id. § 1003.20(a) ("Venue shall lie at the Immigration Court where jurisdiction vests pursuant to [8 C.F.R.] § 1003.14."). Mr. Fuanya reads these regulations as providing that circuit-court venue lies in the Immigration Court in New Mexico where the NTA was filed. But these regulations govern IJ venue rather than judicial venue. Moreover, in Yang You Lee, we construed these regulations as providing for IJ venue at the Immigration Court where the NTA ordered the alien to appear before an IJ. See 791 F.3d at 1265 (holding IJ venue lay in Dallas because the NTA ordered the alien to appear before an IJ in Dallas). This is consistent with, rather than contrary to, OPPM 04-06. Thus, IJ venue in Mr. Fuanya's case began and remained in Louisiana. And judicial venue pursuant to § 1252(b)(2)- based on where the IJ completed the removal proceedings-is likewise proper in the Fifth Circuit.
Mr. Fuanya also argues that, if OPPM 04-06 determines judicial venue, it directs that venue lies in the Immigration Court where the case was docketed, which he contends was the court in Chaparral, New Mexico, where the NTA was filed. But this argument misreads the memorandum, which references "the location where the case is docketed for hearing." OPPM 04-06 at 2 (emphasis partially omitted).
B. The Interests of Justice Would be Best Served by Transferring the Petition for Review to the Fifth Circuit
"Federal circuit courts have inherent power to transfer a case over which they have jurisdiction but lack venue." Yang You Lee, 791 F.3d at 1266. In determining whether to transfer a case, we "have considered the reasonableness of an alien's confusion about the proper venue and whether transfer will delay resolution, inconvenience the parties, or waste judicial resources because the petition is wholly without merit." Id. We conclude that the interests of justice would best be served by transferring Mr. Fuanya's petition for review to the Fifth Circuit.
As further explained below, there is a potential issue regarding jurisdiction in this circuit. But we can decide to transfer Mr. Fuanya's petition for review based on improper venue without definitively determining whether we lack jurisdiction. See ATK Launch Sys., Inc. v. U.S. E.P.A., 651 F.3d 1194, 1196 n.1, 1200 (10th Cir. 2011) (transferring case to the proper circuit court under a provision of the Clean Air Act without deciding whether that provision is a jurisdictional or venue requirement and before considering a jurisdictional challenge to standing).
Mr. Fuanya addresses only one of the relevant factors. He argues he was reasonably confused about the proper venue for filing his petition for review because both the hearing transcript and the IJ's oral decision reference the Otero Immigration Court. The IJ's oral decision is captioned at the Otero Immigration Court. And although the hearing transcript is not captioned at a particular Immigration Court, it bears the notation "Place: OTERO, NEW MEXICO" in the heading. Admin. R. at 441. As these documents reflect, the IJ in this case did not follow the directives in OPPM 04-06 to "create a clear record of where the hearing [took] place." OPPM 04-06 at 2. The IJ did not state on the record the location of the final removal hearing based upon its docketed location in Louisiana. See id. And the IJ either failed to direct the transcriber to (or the transcriber neglected to) specify the hearing location in the caption of the IJ's oral decision, as well as include a statement setting forth the Otero Immigration Court as the ACIC. See id. at 3-4 & Attachments B-D. But despite these documentary discrepancies, in dismissing Mr. Fuanya's appeal, the BIA explicitly and unambiguously stated that his removal proceedings were completed in Louisiana in light of the case having been docketed for hearing there. We therefore conclude that Mr. Fuanya's confusion as to the proper venue for his petition was not reasonable.
Moreover, any confusion appears to have arisen with Mr. Fuanya's current counsel, an Ohio attorney whom he retained to represent him in his petition for review. His first counsel indicated his understanding that the final removal hearing was being held in Louisiana when he moved to waive his appearance at the "Winnfield Immigration Court" and to instead be allowed to appear telephonically from his Mississippi office location. Admin. R. at 1055. And Mr. Fuanya's second counsel, a Louisiana attorney who represented him in his appeal to the BIA, did not argue on appeal that the IJ erred by applying Fifth Circuit law.
As to the remaining considerations, Mr. Fuanya does not argue that transferring his petition for review to the Fifth Circuit will inconvenience him. The government acknowledges, and we agree, that Mr. Fuanya's petition is not wholly without merit. While a transfer will undoubtedly result in some delay, we conclude that consideration is offset by the certainty of jurisdiction in the Fifth Circuit in light of Mr. Fuanya's failure to file a petition for review following the BIA's issuance of an amended order. As the government notes, under Fifth Circuit caselaw, the BIA's original October 15, 2020, order dismissing Mr. Fuanya's appeal remains final for purposes of judicial review because the BIA's later grant of reconsideration to correct its own stenographic error did not effectively vacate or materially change the October 15 order. See Espinal v. Holder, 636 F.3d 703, 705-06 (5th Cir. 2011); Admin. R. at 3 n.2 (noting the BIA issued an amended decision "to correct an error in [its] original decision (missing text)"). We have not yet decided this precise jurisdictional issue, which the parties have not fully briefed in this court. See, e.g., Abdalla v. I.N.S., 43 F.3d 1397, 1398-99 (10th Cir. 1994) (exercising jurisdiction over second BIA order entered after vacation of prior order where alien prudently filed a second petition for review directed to the second order).
Although Mr. Fuanya bears the burden of demonstrating that this court has jurisdiction over his petition for review, see McKenzie v. U.S. Citizenship & Immigr. Servs., Dist. Dir., 761 F.3d 1149, 1154 (10th Cir. 2014), he did not address this question in his reply brief after the government raised the issue in its response.
On balance, we conclude that transfer of Mr. Fuanya's petition to the Fifth Circuit is appropriate under these circumstances and we exercise our discretion to do so.
III. Conclusion
The government's motion to transfer is granted. The petition for review is transferred to the United States Court of Appeals for the Fifth Circuit.
[*] On March 11, 2021, Merrick B. Garland became Attorney General of the United States. Consequently, his name has been substituted for Robert M. Wilkinson as Respondent, per Fed. R. App. P. 43(c)(2).