Ashton LeBlanc v. Eric Holder, Jr. , 784 F.3d 206 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2474
ASHTON JOSEPH LEBLANC; ROBERT LEBLANC,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: March 24, 2015 Decided: April 21, 2015
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Dismissed by published opinion. Judge Shedd wrote the opinion,
in which Judge Duncan and Judge Agee joined.
ARGUED: Steffanie Jones Lewis, Albert Zelius Lewis, Jr., THE
INTERNATIONAL BUSINESS LAW FIRM, PC, Washington, D.C., for
Petitioners. Aimee J. Carmichael, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Joyce R.
Branda, Acting Assistant Attorney General, Civil Division, Mary
Jane Candaux, Assistant Director, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
SHEDD, Circuit Judge:
Ashton LeBlanc petitions for review of the denial of his
motion to reopen the denial of an I-130 petition filed on behalf
of his son, Robert. Because we lack jurisdiction over Ashton’s
petition, and because transfer to an appropriate district court
is not in the interests of justice, we dismiss.
I.
Ashton, an 84-year-old Louisiana resident, spent his adult
working life on off-shore oil rigs. From 1968 to 1978, he was
posted in Nigeria. During his time there, Ashton entered into a
relationship with Victoria Efueye. Their relationship resulted
in a son, Robert LeBlanc, born on September 6, 1970. Ashton is
recorded as the father on the birth certificate, and he attended
Robert’s “Naming Day” celebration, a traditional acknowledgement
of parentage in Nigeria. Until Ashton was reassigned in 1978, he
lived with Robert and Victoria (while on-shore) and provided
financial support for Robert. Despite this long-term
relationship, Ashton and Victoria never married. 1
In 2001, Robert entered the United States on a visitor’s
visa to see his father. During this visit, and in light of civil
strife in Nigeria, Robert and Ashton decided that Robert should
1
Ashton was married to a woman in the United States at the
time.
2
remain in the United States. Ashton retained an attorney, Stuart
Snyder, to file the appropriate paperwork to have Robert
declared a United States citizen. Ashton then completed and
submitted to his attorney a Form N-600, Application for
Certificate of Citizenship. Snyder instead filed a Form I-130, a
petition for an adjustment of status for an alien relative, for
Ashton on behalf of Robert. The I-130 was filed in 2002 and was
denied in May 2007 for failure to submit further documentation.
Snyder filed an appeal of the denial but never filed a brief or
any further materials. The BIA, without opinion, denied the
appeal in November 2007.
From 2007 to 2012, Ashton and Robert remained in contact
with Snyder about the appeal and were assured that the matter
was moving forward. Sometime in 2011, Ashton contacted a second
attorney to check the status of Robert’s citizenship. That
attorney contacted Snyder and, satisfied with his responses,
replied to Ashton that everything was being handled properly.
Ashton—who was by this point in his 80s—grew more frustrated and
eventually hired yet another attorney (current counsel). That
attorney quickly uncovered Snyder’s deficient performance and
moved to reopen the denial of the I-130 petition with the BIA on
the grounds of ineffective assistance of counsel.
In November 2013, the BIA denied the motion to reopen,
concluding that Ashton failed to show due diligence after
3
contacting the second attorney in 2011. The BIA reasoned, in
part, that Ashton “has not made a claim of ineffective
assistance of counsel against this second attorney.” (J.A. 4).
Ashton filed a timely petition for review.
II.
Before we can address the merits of Ashton’s petition for
review, we must determine if we have jurisdiction over it. See
Constantine v. Rectors & Visitors of George Mason Univ., 411
F.3d 474, 480 (4th Cir. 2005) (noting courts have “independent
obligation to assess . . . subject-matter jurisdiction”). In the
immigration context, our jurisdiction is strictly constrained,
and we are generally limited to reviewing “a final order of
removal.” 8 U.S.C. § 1252(a)(1). A “final order of removal” is
an order in which the Attorney General (or his appropriate
designee) “conclud[es] that the alien is deportable or order[s]
deportation.” 8 U.S.C. § 1101(a)(47)(A).
It is undisputed that Robert is not now and has never been
in deportation proceedings. This petition for review is from
Ashton’s denied motion to reopen his visa petition, not an order
of removal against Robert. Ruiz v. Mukasey, 552 F.3d 269, 273
(2d Cir. 2009) (noting dismissal of petition for review of I-130
denial for “lack [of] jurisdiction”); Fonseca-Sanchez v.
Gonzales, 484 F.3d 439, 444 (7th Cir. 2007) (“Ancillary
determinations made outside the context of a [removal]
4
proceeding . . . are not subject to direct review”) (internal
quotation marks omitted). Ashton contends that Robert would be
subject to removal if proceedings were instituted against him,
but that speculative possibility does not bestow jurisdiction
over Ashton’s petition for review of his motion to reopen the
visa denial. Ashton also points to § 1252(b)(5), which permits a
court of appeals to “decide” a “nationality claim” when there is
“no genuine issue of material fact.” That section does not
create jurisdiction to hear Ashton’s petition for review;
instead, it simply signifies that if we have jurisdiction over a
petition, we may decide nationality claims. We would be acting
“ultra vires” were we to “consider[] the merits” of Robert’s
nationality claim when we lack jurisdiction over Ashton’s
petition for review. Constantine, 411 F.3d at 480. See also
Steel Co v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)
(“Without jurisdiction the court cannot proceed at all in any
cause” (internal quotation marks omitted)).
This outcome does not deprive individuals in Ashton’s
situation of judicial review. Relief from an adverse BIA action
on an I-130 petition 2 may lie in the district court under the
2
Although this is not a removal matter, the BIA’s cover
letter contains boilerplate language instructing that “[i]f the
attached decision orders that you be removed,” then “any
petition for review of the attached decision must be filed with
(Continued)
5
Administrative Procedures Act, which provides a right of action
for an individual “suffering legal wrong because of agency
action.” 3 5 U.S.C. § 702. Jurisdiction for such claims exists in
the district court, 28 U.S.C. § 1331, and they must be brought
within six years, 28 U.S.C. § 2401(a).
Accordingly, we lack jurisdiction over Ashton’s petition
for review. 4 In the normal course of events, our disposition
would be to dismiss the petition for review. However, we
requested the parties to brief the possible application of 28
U.S.C. § 1631 to this case. That statute provides, in relevant
part, that when an appeal “including a petition for review,” is
filed in a court that lacks jurisdiction, “the court shall, if
it is in the interest of justice, transfer such action . . . to
any other such court in which . . . the action could have been
brought at the time it was filed or noticed.”
In Ruiz, the Second Circuit, sua sponte, raised § 1631 in a
case involving a petition for review of an I-130 filing. Ruiz,
and received by the appropriate court of appeals within 30
days.” (J.A. 2).
3
Indeed, the Second Circuit held in Ruiz that the district
court would have jurisdiction over a petition for review of the
denial of an I-130 petition. 552 F.3d at 273-76.
4
Even if we did have jurisdiction, it is unclear that venue
would lie in the Fourth Circuit. Ashton resides in Louisiana,
and the I-130 was denied by an office in California.
6
552 F.3d at 273. The court held that transfer, rather than
dismissal, was appropriate when: (1) the appellate court lacks
jurisdiction; (2) the transferee court would have possessed
jurisdiction over the case at the time it was filed; and (3)
transfer is in the interests of justice. Id. In determining the
“interests of justice” prong, the court examined whether a new
action by the litigant would be time barred and whether the
appeal was filed in good faith. Id. at 276. The court found that
a district court would possess jurisdiction over the appeal of a
denial of an I-130 petition, and that the interests of justice
militated in favor of transfer because any action would be time
barred. Several circuits, albeit in unpublished decisions, have
followed Ruiz’s lead and applied § 1631 to petitions of review
in immigration cases. See Sung Kwok Chan v. Holder, 494 F. App’x
702 (8th Cir. 2012) (I-130 petition); Zamora v. Holder, 481 F.
App’x 232 (5th Cir. 2012) (I-130 petition).
We adopt the approach employed by the Ruiz court. By its
own language § 1631 extends to petitions for review and the
statute serves to “remedy” a “good faith mistake” by a litigant,
a situation that can arise in the immigration context. Kopp v.
Dir., Office of Workers’ Comp. Programs, 877 F.2d 307, 309 (4th
Cir. 1989). Thus, transfer is appropriate in petitions for
review from the BIA as long as the statute’s three factors are
met: the original court lacks jurisdiction; another court would
7
have possessed jurisdiction at the time of filing; and the
interests of justice favor transfer. McCook Metals LLC v. Alcoa,
Inc., 249 F.3d 330, 334 (4th Cir. 2001). Applying those factors
here, however, we do not believe the “interests of justice”
require transfer. While Ashton is acting in good faith, pursuing
the denial of the motion to reopen the I-130 proceedings in the
district court is, given the remedy he is seeking, fruitless.
See Sorcia v. Holder, 643 F.3d 117, 123 (4th Cir. 2011) (noting
“whether or not the suit has any possible merit bears
significantly” on the interests of justice) (internal quotation
marks omitted). Ashton has made pellucid his desire to help his
son Robert gain United States citizenship. An I-130 petition
does not and cannot lead to that result. As the Government notes
in its brief: “To date, no factfinder has ever reviewed Robert’s
claim of citizenship because Robert has never filed the
appropriate forms.” (Gov’t Br. at 12). 5 To the extent that Ashton
wants his son to gain citizenship while Ashton is alive, the
interests of justice are best served by terminating this
5
The Government represented in its brief and at argument
that Robert should file an N-600 form on his own behalf and that
the denial of Ashton’s I-130 has no effect on the consideration
of Robert’s N-600. The Government further represented at
argument that adjudication of Robert’s N-600 form would
typically be completed within 6 months.
8
litigation because its continuation wastes judicial resources
while moving Ashton and Robert no closer to their goal.
III.
Because we lack jurisdiction over Ashton’s petition for
review and transfer is inappropriate under § 1631, we dismiss
the petition.
DISMISSED
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