May 19, 2019

Tenth Circuit: Venue for Immigration Appeals Tied to Immigration Judge’s Location at Final Hearing

The Tenth Circuit Court of Appeals issued its opinion in Lee v. Lynch on Wednesday, July 1, 2015.

Yang You Lee is a citizen of Thailand who received lawful refugee status through his Laotian parents and was admitted to the United States in 1987 at age 5. In 2014, an Immigration Judge in Dallas found him removable for a misdemeanor domestic assault charge that was a crime of violence. The BIA agreed with the IJ and dismissed his appeal. Mr. Lee filed a petition for review in the Fifth Circuit, which sua sponte summarily transferred the petition to the Tenth Circuit. The Tenth Circuit asked the parties to address venue under 8 U.S.C. § 1252(b)(2) and reviewed their responses.

The Tenth Circuit first addressed whether § 1252 affects subject matter jurisdiction or is an ordinary venue provision. Following the reasoning of a number of sister circuits that have addressed the issue, the Tenth Circuit concluded that § 1252 is a non-jurisdictional venue provision. Next, analyzing the plain language of the statute, the Circuit found venue tied to the IJ’s location when the IJ completes removal proceedings. Although the Attorney General argued venue was proper in the Tenth Circuit because the final hearing location was docketed as Oklahoma City, Oklahoma, the Tenth Circuit noted the final hearing was held in Dallas and all parties physically appeared in Dallas. The Tenth Circuit declined to defer to agency pronouncements and followed the language of the statute. The Tenth Circuit noted that although transfer would further delay the proceedings, the Fifth Circuit is the proper venue.

The Tenth Circuit transferred the petition to review to the Fifth Circuit Court of Appeals.

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