FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARGARITA TREJO-MEJIA, 

Petitioner, No. 05-76728

v. Agency No.  A029-577-836 ERIC H. HOLDER JR., Attorney

General, ORDER

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

December 9, 2009—San Francisco, California

Filed January 21, 2010

Before: Robert E. Cowen,* Susan P. Graber, and

Jay S. Bybee, Circuit Judges.

COUNSEL

Christopher J. Stender and Deniz S. Arik, Stender & Pope,

PC, San Diego, California, for the petitioner.

Nancy E. Friedman, Office of Immigration Litigation, United

States Department of Justice, Washington, D.C., for the

respondent.

*The Honorable Robert E. Cowen, Senior United States Circuit Judge

for the Third Circuit, sitting by designation. 

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ORDER

Petitioner Margarita Trejo-Mejia petitions for review from

the Board of Immigration Appeals’ (“BIA”) denial of her

motion to reopen. For the reasons that follow, we transfer this

case to the United States Court of Appeals for the Fifth Circuit.

Petitioner is a 56-year-old native and citizen of El Salvador.

In 1988, she entered the United States near Brownsville,

Texas, and the government issued her an order to show cause.

Petitioner failed to appear at her hearing one month later, and

an immigration judge in Harlingen, Texas, issued an order of

deportation. Petitioner never appealed that decision.

In 1998, Petitioner filed a motion to reopen her proceedings

under section 203(c) of the Nicaraguan Adjustment and Central American Relief Act (“NACARA”), Pub. L. No. 105-100,

111 Stat. 2160, 2198-99 (1997), with the immigration court in

Harlingen, Texas. In 2005, an immigration judge denied the

motion to reopen and, that same year, the BIA affirmed.1

Those proceedings, too, took place in Harlingen, Texas.

Petitioner timely filed a petition for review in this court on

November 25, 2005. The government filed a motion to dismiss or, in the alternative, to transfer this case to the Fifth Circuit. A motions panel of this court denied the motion to

dismiss but ordered the parties to analyze the transfer issue in

their briefs on the merits. At all times, the government has

argued that venue does not lie here and that this court must

transfer the case to the Fifth Circuit.

The government is correct that venue does not lie in this

court: “The petition for review shall be filed with the court of

appeals for the judicial circuit in which the immigration judge

1Because venue does not lie in this court, we do not discuss the bases

for the BIA’s denial. 

1292 TREJO-MEJIA v. HOLDER
completed the proceedings.” 8 U.S.C. § 1252(b)(2) (emphasis

added). Petitioner does not dispute that the immigration judge

completed the proceedings in Texas (and thus within the Fifth

Circuit). Petitioner argues, instead, that the quoted text above

does not apply because her final order of removal was issued

in 1988—before the enactment of the REAL ID Act of 2005,

Pub. L. No. 109-13, 119 Stat. 231, and before the enactment

of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). She argues that the important

date for purposes of venue is the date of her final order of

removal. Petitioner cites our cases pre-dating the enactment of

the REAL ID Act, in which we held that the date of the final

order of removal indeed played a role in determining the

proper venue. Kalaw v. INS, 133 F.3d 1147, 1149-50 (9th Cir.

1997); see also 8 U.S.C. § 1105a(a)(2) (1995) (“[T]he venue

of any petition for review under this section shall be in the

judicial circuit in which the administrative proceedings before

a special inquiry officer were conducted in whole or in part,

or in the judicial circuit wherein is the residence . . . of the

petitioner . . . .”).

But Petitioner filed her petition for review after the enactment of the REAL ID Act. Title 8 U.S.C. § 1252(a)(5), which

was added by the REAL ID Act, provides that a petition for

review “shall be the sole and exclusive means for judicial

review of an order of removal.” Such a petition must be filed

“in accordance with this section,” id. (emphasis added), which

includes the venue provision in § 1252(b)(2). Moreover, the

REAL ID Act expressly states that its amendments—

including § 1252(a)(5)—“shall take effect upon the date of

the enactment of this division [May 11, 2005] and shall apply

to cases in which the final administrative order of removal,

deportation, or exclusion was issued before, on, or after the

date of the enactment of this division.” REAL ID Act § 106(b)

(emphasis added). We therefore hold that venue properly lies

in “the judicial circuit in which the immigration judge completed the proceedings,” 8 U.S.C. § 1252(b)(2), which is the

Fifth Circuit, not this circuit.

TREJO-MEJIA v. HOLDER 1293
The government argues that we should transfer this case

pursuant to 28 U.S.C. § 1631. “A case is ‘transferable’ [pursuant to § 1631] when three conditions are met: (1) the transferee court would have been able to exercise its jurisdiction

on the date the action was misfiled; (2) the transferor court

lacks jurisdiction; and (3) the transfer serves the interest of

justice.” Garcia de Rincon v. Dep’t of Homeland Sec., 539

F.3d 1133, 1140 (9th Cir. 2008) (internal quotation marks

omitted).

All three requirements are met here. First, the parties have

not identified any reason—and we see none—why the Fifth

Circuit could not exercise its jurisdiction over this petition for

review. Second, we lack jurisdiction for purposes of the transfer statute because venue does not lie.2

See Rodriguez-Roman

v. INS, 98 F.3d 416, 424 (9th Cir. 1996) (“[F]or purposes of

the transfer statute [28 U.S.C. § 1631], a court lacks jurisdiction if venue does not lie.”). Finally, we hold that transfer

would serve the interest of justice. See id. (discussing this factor in the context of an alien’s petition for review filed in the

wrong circuit court).

Accordingly, the Clerk is directed to transfer the petition

for review to the United States Court of Appeals for the Fifth

Circuit. The stay of removal, which was considered and

granted in an order dated May 26, 2006, remains in effect

pending further consideration by the Fifth Circuit. Upon

transfer of the petition, the Clerk shall close this case.

2We therefore need not decide, and do not decide, whether 8 U.S.C.

§ 1252(b)(2) is purely a venue statute or whether it also affects our subject

matter jurisdiction. See Moreno-Bravo v. Gonzales, 463 F.3d 253, 258-62

(2d Cir. 2006) (holding that § 1252(b)(2) is a pure venue provision and

does not destroy subject matter jurisdiction); Nwaokolo v. INS, 314 F.3d

303, 306 n.2 (7th Cir. 2002 (per curiam) (same); see also Jama v. Gonzales, 431 F.3d 230, 233 & n.3 (5th Cir. 2005) (per curiam) (referring to

venue under § 1252(b)(2) as a “non-jurisdictional venue issue” and citing,

with approval, Nwaokolo on this point); Bonhometre v. Gonzales, 414

F.3d 442, 446 n.5 (3d Cir. 2005) (citing, with approval, Nwaokolo on this

point). 

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