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12-71735 - Fidel Bibiano v. Loretta E. Lynch


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12-71735 - Fidel Bibiano v. Loretta E. Lynch
August 19, 2016
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FILED OPINION (HARRY PREGERSON, A. WALLACE TASHIMA and CONSUELO M. CALLAHAN) 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 nonjurisdictional 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 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. Judge: HP Authoring, Judge: CMC Concurring. FILED AND ENTERED JUDGMENT. [10092823]