Sarr v. Garland

20-3836 Sarr v. Garland UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2021 (Submitted: April 19, 2022 Decided: October 12, 2022) No. 20-3836 –––––––––––––––––––––––––––––––––––– MAMADOU AMADOU SARR Petitioner, -v.- MERRICK GARLAND, ATTORNEY GENERAL OF THE UNITED STATES Respondent. –––––––––––––––––––––––––––––––––––– Before: LIVINGSTON, Chief Judge, CABRANES and LOHIER, Circuit Judges. Petitioner Mamadou Amadou Sarr (“Sarr”) petitioned for review of the decision of the Board of Immigration Appeals to uphold the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture. An Immigration Judge, as authorized by Congress, conducted the removal proceeding via video teleconference. See 8 U.S.C. § 1229a(b)(2). In this opinion, we consider Sarr’s motion for a stay of removal pending resolution of his case and the government’s motion to transfer the petition for review on the basis that venue lies in the Fifth Circuit. 1 Turning first to the transfer motion, we conclude that the Fifth Circuit is the proper venue for his petition for review because jurisdiction vested in Louisiana and there was no change of venue after removal proceedings commenced. Still, in light of Sarr’s understandable confusion about the proper venue for his petition, the period of time in which the petition has been pending before this Court, and the fact that his counsel is based in New York, we DENY the government’s motion to transfer. Thus, we proceed to consider Sarr’s motion for a stay of removal, which we DENY due to Sarr’s failure to demonstrate either a strong showing that he is likely to succeed on the merits of his claim or that he will be irreparably injured absent a stay. FOR PETITIONER: Lara Nochomovitz, Chagrin Falls, Ohio. FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General, Carl McIntyre, Assistant Director, Andrew Oliveira, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C. 2 DEBRA ANN LIVINGSTON, Chief Judge: Congress has expressly permitted immigration judges to conduct removal proceedings via video teleconference (“VTC”) rather than in person. See 8 U.S.C. § 1229a(b)(2); see also 8 C.F.R. § 1003.25(c). In such remote proceedings, the Immigration Judge (“IJ”), respondent, and counsel may each participate from different locations. The Executive Office for Immigration Review (“EOIR”) has long promoted the use of VTC proceedings as a “reliable and effective tool” to ensure timely adjudication of cases and maximize the convenience of the parties. James R. McHenry III, Dir., Exec. Off. For Immigr. Rev., Interim Operating Policies and Procedures Memorandum No. 21-03: Immigration Court Hearings Conducted by Telephone and Video Teleconferencing 3 (Nov. 6, 2020). More recently, the agency has taken steps to further enable VTC proceedings in immigration courts across the country. Id. Indeed, due in part to the expanded capacity and need for remote proceedings, particularly during the COVID-19 pandemic, the share of immigration proceedings conducted remotely has increased more than twofold over the past five years, from about seventeen percent in the 2017 fiscal year to about forty-six percent in the 2021 fiscal year. Exec. …

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