Immigration PFR Venue Follows the Controlling Immigration Court Absent a Formal Change, Yet May Be Retained When Transfer Is Not “In the Interest of Justice”

Introduction

In Khawar Saleem v. Attorney General United States of America (3d Cir. Feb. 26, 2026) (not precedential), the Third Circuit addressed a pro se petition for review (“PFR”) filed by Khawar Saleem, a citizen of Pakistan and lawful permanent resident, challenging a final order of removal entered by the Board of Immigration Appeals (“BIA”). The Department of Homeland Security charged Saleem as removable under 8 U.S.C. § 1182(a)(2)(A)(i)(I) based on a New Jersey conviction for third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a.

The case presented three recurring procedural and doctrinal issues in immigration PFRs: (1) proper venue under 8 U.S.C. § 1252(b)(2) when the immigration case is administratively controlled in one location but physically conducted elsewhere; (2) the scope of appellate review under the criminal alien bar, 8 U.S.C. § 1252(a)(2)(C)–(D); and (3) how the categorical and modified categorical approaches constrain challenges to a “crime involving moral turpitude” (“CIMT”) determination.

Summary of the Opinion

The court dismissed in part and denied in part the PFR. It held:

  • Venue: Although the Government suggested venue was proper in the Third Circuit, the court concluded venue properly lay in the Sixth Circuit because the Immigration Court where proceedings began and ended was in Cleveland, Ohio, and there was no “formal change of venue.” Nonetheless, the court retained the case because transfer was not “in the interest of justice” under 28 U.S.C. § 1631.
  • CIMT / removability: Saleem failed to show the BIA erred in treating his conviction under N.J.S.A. 2C:14-3a (via N.J.S.A. 2C:14-2a.(7)(a)) as a CIMT. His briefing either (a) omitted and failed to exhaust the actus reus/reprehensibility argument, or (b) improperly relied on the particular facts of his case rather than the categorical approach.
  • Relief claims: Many arguments were unexhausted; others were factual disputes barred from review by the criminal alien bar; and, on the merits, the harms described did not compel a finding of “persecution” as a matter of law, and Saleem’s PSG arguments were inadequately tethered to the record.

Analysis

Precedents Cited

The opinion is largely an application of established Third Circuit doctrine, drawing on several lines of precedent:

1) Venue and transfer: Castillo v. Att'y Gen.

The venue analysis relies directly on Castillo v. Att'y Gen., 109 F.4th 127 (3d Cir. 2024). As in Castillo, the court emphasized that 8 U.S.C. § 1252(b)(2) is not jurisdictional and that venue turns on where “the immigration judge completed the proceedings.” Where the Notice to Appear places the case in a particular Immigration Court and there is no motion and order formally changing venue, that originating/controlling court remains the venue anchor.

Importantly, the court also applied Castillo to the transfer question. Even when venue is wrong, 28 U.S.C. § 1631 permits transfer only if it serves “the interest of justice.” Here, retention was justified by (i) the BIA’s statement that the Third Circuit was the proper circuit, (ii) the parties’ reliance on Third Circuit precedent throughout the agency proceedings, and (iii) efficiency because the matter was fully briefed and transfer would delay resolution.

2) Criminal alien bar and reviewable issues: Francisco-Lopez, Jarbough, Myrie

The court reiterated the jurisdictional constraints imposed by the criminal alien bar, 8 U.S.C. § 1252(a)(2)(C), and the carveout for “colorable constitutional claims and questions of law,” 8 U.S.C. § 1252(a)(2)(D), citing Francisco-Lopez v. Att'y Gen., 970 F.3d 431 (3d Cir. 2020), Jarbough v. Att'y Gen., 483 F.3d 184 (3d Cir. 2007), and Myrie v. Att'y Gen., 855 F.3d 509 (3d Cir. 2017).

Jarbough performed a key gatekeeping function: challenges framed as “failed to consider evidence” or “incorrectly weighed evidence” are typically not “questions of law” for § 1252(a)(2)(D) purposes. The court used that principle to reject review of Saleem’s essentially factual disagreement with the agency’s assessment of ongoing risk from TTP.

3) CIMT doctrine and the categorical approach: Ndungu, Mehboob, Pereida

The opinion draws the modern CIMT framework from Ndungu v. Att'y Gen., 126 F.4th 150 (3d Cir. 2025), emphasizing two elements common to CIMTs: (1) “reprehensible” conduct and (2) a culpable mental state of at least recklessness. It also relies on the methodological constraints described in Mehboob v. Att'y Gen., 549 F.3d 272 (3d Cir. 2008), and the Supreme Court’s articulation of the categorical approach’s “preference for hypothetical facts over real ones” in Pereida v. Wilkinson, 592 U.S. 224 (2021).

This trio of cases shaped the court’s central critique of Saleem’s argument: he litigated “what really happened” rather than analyzing the statutory elements and the least culpable conduct encompassed by them.

4) Divisibility and the modified categorical approach: Grijalva Martinez, Restrepo, Shepard v. United States

To identify the relevant statutory “circumstance” incorporated into N.J.S.A. 2C:14-3a, the court invoked the divisibility logic of Grijalva Martinez v. Att'y Gen., 978 F.3d 860 (3d Cir. 2020), and the requirement to pinpoint the specific disjunctive subsection per Restrepo v. Att'y Gen., 617 F.3d 787 (3d Cir. 2010).

For permissible record materials, the court cited Shepard v. United States, 544 U.S. 13 (2005), using the state appellate decision describing the bench-trial findings to conclude Saleem was convicted under N.J.S.A. 2C:14-2a.(7)(a) (victim physically helpless/incapacitated).

5) Exhaustion and forfeiture: Gomez-Gabriel, Aguilar, Tineo

The court enforced issue exhaustion under 8 U.S.C. § 1252(d)(1) as a claims-processing rule when invoked by the Government, relying on Gomez-Gabriel v. Att'y Gen., 146 F.4th 327 (3d Cir. 2025) (per curiam) and Aguilar v. Att'y Gen., 107 F.4th 164 (3d Cir. 2024). It also treated abandoned arguments as forfeited under Tineo v. Att'y Gen., 937 F.3d 200 (3d Cir. 2019).

6) Collateral attacks and the “finality” aside: Drakes v. INS, Orabi v. Att'y Gen.

The court reiterated that immigration proceedings are not a forum for collateral attacks on predicate convictions, citing Drakes v. INS, 330 F.3d 600 (3d Cir. 2003) and Urbina-Mauricio v. INS, 989 F.2d 1085 (9th Cir. 1993).

In a notable footnote, the court also explained that Saleem’s earlier “non-final conviction” theory lacked merit because direct review had concluded before the IJ’s removal order, citing State v. Saleem, No. A-2138-21, 2023 WL 3561408 (N.J. Super. Ct. - App. Div. May 19, 2023) (per curiam), cert. denied, 302 A.3d 1162 (N.J. Oct. 6, 2023), and referencing Orabi v. Att'y Gen., 738 F.3d 535 (3d Cir. 2014).

7) “Persecution” threshold and PSG review: Kibinda, Toure, Avila, S.E.R.L.

On the merits of harm severity, the court relied on Jarbough v. Att'y Gen., Kibinda v. Att'y Gen., 477 F.3d 113 (3d Cir. 2007), and Toure v. Att'y Gen., 443 F.3d 310 (3d Cir. 2006) to conclude Saleem’s described beatings/detention did not rise to persecution as a matter of law.

As to “particular social group” issues, the court cited Avila v. Att'y Gen., 82 F.4th 250 (3d Cir. 2023) (PSG cognizability remains reviewable as a legal question despite § 1252(a)(2)(C)), but found Saleem’s PSG showing deficient under S.E.R.L. v. Att'y Gen., 894 F.3d 535 (3d Cir. 2018).

Legal Reasoning

1) Venue: “administrative control court” is decisive absent formal change

The court’s venue reasoning is formal and record-driven: the NTA directed appearance in the Cleveland Immigration Court, and the record contained no motion or order changing venue. Consequently, proceedings “began and ended” in Cleveland, and venue lay in the Sixth Circuit.

The more practically significant move is the court’s decision not to transfer. Even though § 1252(b)(2) pointed to another circuit, the panel treated the defect as curable (non-jurisdictional) and concluded transfer would not serve justice given the BIA’s misleading circuit identification and the inefficiency of transferring a fully briefed case that had been adjudicated under Third Circuit precedent throughout.

2) CIMT analysis constrained by exhaustion and the categorical approach

The court set up the proper CIMT framework (reprehensible conduct + at least reckless mens rea) and the proper methodology (categorical approach, and modified categorical approach for divisible statutes). It then effectively held that Saleem failed at the threshold because:

  • Actus reus/reprehensibility: he did not argue this prong in his petition briefing, and he did not present it to the BIA; the Government invoked § 1252(d)(1), so the court enforced exhaustion.
  • Mens rea: he argued innocence and ambiguity based on his own case facts (sleeping, language barriers, apologies), which is legally irrelevant under Ndungu v. Att'y Gen. and Pereida v. Wilkinson.

The opinion therefore stops short of a fully elaborated substantive holding on whether N.J.S.A. 2C:14-3a (as narrowed to N.J.S.A. 2C:14-2a.(7)(a)) is categorically a CIMT under the “least culpable conduct” test—illustrating that procedural defaults and methodological missteps can decide CIMT litigation before the court reaches the underlying moral-turpitude question.

3) Relief claims: jurisdictional limits plus legal thresholds

With removability established and the criminal alien bar in play, the court separated arguments into: (i) unexhausted issues; (ii) factual disputes barred from review; and (iii) legal issues the court could reach but rejected on the merits. On the merits, the court emphasized the legal threshold for “persecution,” using Third Circuit comparators (Jarbough, Kibinda, Toure) to classify Saleem’s harms as serious but below the persecution line.

On PSG, the court acknowledged reviewability under Avila v. Att'y Gen. but found Saleem’s arguments “unmoored” from the administrative record and insufficient to establish a cognizable PSG under S.E.R.L. v. Att'y Gen..

Impact

  • Venue practice: The decision underscores that “where proceedings began and ended” is determined by the controlling Immigration Court absent a formal change. Practitioners should verify the control court reflected in the NTA and the presence (or absence) of a venue-change order before selecting the circuit for a PFR.
  • Transfer is discretionary, not automatic: Even when venue is wrong, § 1631 transfer may be denied where transfer would waste resources and delay, especially when the agency itself created confusion about the proper circuit and the case has been litigated under one circuit’s precedent end-to-end.
  • CIMT briefing discipline: The opinion is a cautionary template: a CIMT challenge must address both prongs (reprehensibility and mens rea), must be exhausted issue-by-issue, and must be framed categorically (elements/least culpable conduct), not as a factual innocence narrative.
  • Criminal alien bar triage: For CIMT-based removals, many “errors” must be reframed as questions of law to be reviewable; disputes about what the persecutor will do or how the agency weighed evidence often remain unreviewable under Jarbough v. Att'y Gen..

Complex Concepts Simplified

  • Crime involving moral turpitude (CIMT): A federal immigration label for crimes that involve seriously wrongful conduct and a sufficiently blameworthy mental state (at least recklessness, per Ndungu v. Att'y Gen.).
  • Categorical approach: The court looks at the crime’s legal elements, not what the person actually did. If the statute covers any conduct that would not be a CIMT, the conviction may fail to qualify—unless the statute is divisible and the record narrows the conviction to a qualifying branch.
  • Modified categorical approach / Shepard documents: If a statute lists alternative element sets (divisible statute), the court may consult a limited set of reliable records (e.g., charging documents, plea colloquy, bench-trial findings) to identify which element set produced the conviction, per Shepard v. United States.
  • Exhaustion (8 U.S.C. § 1252(d)(1)): Each issue generally must be raised to the BIA before a court of appeals can review it. If the Government invokes exhaustion, courts will enforce it (per Aguilar v. Att'y Gen.).
  • Criminal alien bar: When a petitioner is removable for certain crimes (including CIMTs), courts usually may review only legal and constitutional questions, not ordinary factual disputes.
  • Particular social group (PSG): One protected ground for asylum/withholding. The group must meet criteria (as discussed in S.E.R.L. v. Att'y Gen.), and the petitioner must connect the claim to the record and the required legal elements.

Conclusion

Khawar Saleem v. Attorney General United States of America reinforces two practical rules with outsized consequences in immigration appellate litigation: (1) PFR venue follows the Immigration Court that formally controlled the case absent a formal venue change, but courts may retain mis-venued petitions when transfer would not serve the interest of justice; and (2) CIMT and protection claims live or die on procedural rigor—issue exhaustion, proper jurisdictional framing under the criminal alien bar, and categorical-approach analysis rather than factual relitigation of the underlying conviction.