Maldonado-Padilla v. Holder

11-1249-ag
Maldonado-Padilla v. Holder
UNITED STATES COURT OF APPEALS 1
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FOR THE SECOND CIRCUIT 3
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August Term, 2010 5
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(Calendar: June 14, 2011 Decided: June 24, 2011) 8
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Docket No. 11-1249-ag 10
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LUISA MALDONADO-PADILLA, 14
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Petitioner, 16
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- v.- 18
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ERIC H. HOLDER, JR., United States 20
Attorney General, 21
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Respondent. 23
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Before: JACOBS, Chief Judge, in Chambers. 27
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The petition for review is transferred sua sponte to 29
the Fifth Circuit Court of Appeals based on improper venue. 30
I must determine, on this single-judge motion, whether to 31
exercise discretion to grant a temporary stay of removal 32
pending completion of the transfer. For the following 33
reasons, the stay is denied. 34
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Luisa Maldonado-Padilla, pro se, 1
Brooklyn, New York, Petitioner. 2
3
Edward Clark Durant, United 4
States Department of Justice, 5
Civil Division, Office of 6
Immigration Litigation, 7
Washington, District of 8
Columbia, for Respondent. 9
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DENNIS JACOBS, Chief Judge: 12
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This matter is before me as a one-judge motion to 14
determine whether this petition should be transferred sua 15
sponte to the Fifth Circuit Court of Appeals, which is where 16
the underlying immigration proceedings took place, and 17
whether to grant petitioner Luisa Maldonado-Padilla’s motion 18
for a stay of removal pending completion of the transfer of 19
venue. 20
The petition for review should have been filed in the 21
Fifth Circuit and transfer of venue is appropriate. 8 22
U.S.C. § 1252(b)(2); see also Moreno-Bravo v. Gonzales, 463 23
F.3d 253, 257 (2d Cir. 2006). Maldonado-Padilla’s motion 24
for a stay of deportation, Certified Administrative Record 25
(“CAR”) at 5, is properly construed as seeking a stay 26
pending completion of the transfer of her petition for 27
review. That is because, upon transfer of the petition for 28
review, jurisdiction will vest with the Fifth Circuit and 29

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this Court will no longer have jurisdiction. See In re 1
Warrick, 70 F.3d 736, 739 (2d Cir. 1995) (observing that 2
generally, when a motion for a transfer is granted and the 3
papers lodged with the transferee court, the transferor 4
court no longer possesses jurisdiction). As the Supreme 5
Court has made clear, “[a] stay is not a matter of right,” 6
and under the circumstances of this case I decline to 7
exercise my discretion to impose a stay of removal pending 8
completion of the transfer of venue. Nken v. Holder, 129 S. 9
Ct. 1749, 1760 (2009) (internal quotation marks omitted). 10
BACKGROUND 11
Luisa Maldonado-Padilla, a native and citizen of 12
Ecuador, entered the United States in 1994 without 13
documentation. CAR at 5. Upon her entry into Texas, she 14
was detained by the Border Patrol. Id. She was personally 15
served with an Order to Show Cause that advised of her 16
obligation to provide a current mailing address to the 17
Immigration Court. Id. at 17. Maldonado-Padilla was 18
released from custody after the posting of a bond and she 19
provided a mailing address in New Jersey. Id. at 5. She 20
never provided a new or updated address. Notice of a 21
removal hearing was mailed to the address she provided, but 22

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it was returned indicating that she had moved. Id. at 17. 1
Maldonado-Padilla failed to appear for her removal 2
hearing, and was consequently ordered removed in absentia. 3
Id. Nearly fifteen years later, Maldonado-Padilla moved to 4
reopen her removal proceedings on the ground that she did 5
not receive notice of the hearing. She also urged the 6
immigration court to reopen removal proceedings on the 7
ground that she was now eligible to adjust her status to 8
that of a lawful permanent resident. Id. at 19. The 9
immigration judge denied Maldonado-Padilla’s motion to 10
reopen, finding that the in absentia order was properly 11
entered because the notice of the removal hearing had been 12
mailed to the last address provided by the petitioner. See 13
Lopes v. Gonzales, 468 F.3d 81, 84 (2d Cir. 2006) (per 14
curiam). The motion to adjust her status was rejected as 15
untimely. See 8 C.F.R. § 1003.23(b)(1). Finally, the 16
immigration court found no “exceptional circumstance[]” that 17
might justify an exercise of discretion to reopen the 18
proceeding sua sponte. In re J-J-, 21 I. & N. Dec. 976, 976 19
(BIA 1997); see also 8 C.F.R. § 1003.2(a). 20
The Board of Immigration Appeals (“BIA”) dismissed 21
Maldonado-Padilla’s appeal from the denial of her motion to 22

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reopen, agreeing with the immigration judge that she was 1
“adequately notified of her hearing.” CAR at 17. The BIA 2
further observed that Maldonado-Padilla was not entitled to 3
receive actual notice of her removal hearing because she 4
concededly “did not comply with her obligation to provide 5
and update her mailing address to the Immigration Court.” 6
CAR at 17, 19. The agency emphasized that Maldonado-Padilla 7
was aware that she was subject to removal since at least 8
2004, but “allowed nearly another six years to elapse before 9
filing a motion to reopen.” CAR at 19. Maldonado-Padilla 10
seeks review of the decision of the BIA in this Court. 11
I 12
A petition for review “shall be filed with the court of 13
appeals for the judicial circuit in which the immigration 14
judge completed the proceedings.” 8 U.S.C. § 1252(b)(2). 15
In this case, that court is the Court of Appeals for the 16
Fifth Circuit. See 28 U.S.C. § 41. Although § 1252(b)(2) 17
is not a jurisdictional mandate and I am not compelled to 18
transfer this petition, I nonetheless deem transfer 19
appropriate under the circumstances of this case. Moreno- 20
Bravo, 463 F.3d at 257-58. Certainly, no reason has been 21
presented that would cause me to conclude that the Fifth 22

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Circuit is an “unjust forum for [t]his petition.” Amunikoro 1
v. Sec’y of Dep’t of Homeland Sec., 432 F.3d 383, 387 (2d 2
Cir. 2005). 3
True, “[v]enue is a doctrine of convenience of the 4
forum[,]” and “[d]omicile is usually the best measure of 5
that convenience.” Kahane v. Carlson, 527 F.2d 492, 494 (2d 6
Cir. 1975). In the context of a petition for review of a 7
denial of a motion to reopen, however, Congress has 8
specified the proper venue. Absent some compelling reason 9
(not present here), a petitioner should not be able to 10
choose otherwise. See Trejo-Mejia v. Holder, 593 F.3d 913, 11
915-16 (9th Cir. 2010) (concluding “transfer would serve the 12
interest of justice” when petition for review filed in wrong 13
circuit court). 14
II 15
The grant or denial of a stay is a matter committed to 16
discretion. Nken, 129 S. Ct. at 1760. There have been 17
instances in which this Court has issued a stay of removal 18
pending the arrival of papers in a proper venue. However, 19
“[a] stay is an intrusion into the ordinary processes of 20
administration and judicial review,” id. at 1757 (internal 21
quotation marks omitted), and “[t]he party requesting a stay 22

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bears the burden of showing that the circumstances justify 1
an exercise of [the Court’s] discretion,” id. at 1761. 2
Here, Maldonado-Padilla has not sustained her burden of 3
demonstrating why a stay should be granted: no showing of 4
likely success on the merits has been made; no substantial 5
legal question has been raised; and, “[a]lthough removal is 6
a serious burden . . ., it is not categorically 7
irreparable.” Id. Moreover, “[t]here is always a public 8
interest in prompt execution of removal orders,” id. at 9
1762, and that interest has already been disserved by the 10
prolonged delay in these proceedings. I may not “simply 11
assume that ordinarily, the balance of hardships will weigh 12
heavily in the [petitioner’s] favor.” Id. (internal 13
alterations and quotation marks omitted). 14
Prior to the passage of the Illegal Immigration Reform 15
and Immigrant Responsibility Act of 1996, “aliens appealing 16
a decision of the BIA were generally entitled to an 17
automatic stay of their orders of removal pending judicial 18
review.” Leiva-Perez v. Holder, 640 F.3d 962, 2011 WL 19
1204334, at *1 (9th Cir. Apr. 1, 2011) (per curiam). 20
“Congress eliminated the automatic stay provision, but left 21
intact the authority of the courts of appeal to grant stays 22

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as a matter of discretion.” Id. I decline to grant a stay 1
as a matter of course as if it were (as once it was) a 2
matter of right. 3
On the present record, I cannot conclude that this 4
petition was filed in this Circuit with the intention of 5
effectuating a delay of the proceedings that may ultimately 6
lead to Maldonado-Padilla’s removal. See Rosendo-Ramirez v. 7
INS, 32 F.3d 1085, 1092 (7th Cir. 1994) (concluding it did 8
not appear that the parties had engaged in forum-shopping). 9
At the same time, the venue error has had that effect. 10
Accordingly, as a prudential matter, I decline to exercise 11
my discretion to grant a stay to guard against possible 12
removal while this petition is transferred to the court in 13
which it should have been brought to begin with. See 14
Michael v. INS, 48 F.3d 657, 666 (2d Cir. 1995) (observing 15
that even if this Court had the power to grant the 16
“extraordinary relief” of a stay, “every prudential 17
consideration argues against it”) (Jacobs, C.J., 18
dissenting). 19
For the foregoing reasons, the petition for review is 20
transferred to the United States Court of Appeals for the 21
Fifth Circuit and the motion for a temporary stay of removal 22
pending completion of the transfer is denied. 23

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