     Case: 18-60169      Document: 00514894295         Page: 1    Date Filed: 03/29/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit


                                    No. 18-60169
                                                                                  FILED
                                                                            March 29, 2019
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
GLORY ISOKEN EDOKPAYI,

                                                 Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A201 129 734


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Glory Isoken Edokpayi, a native and citizen of Nigeria, has filed a
petition for review of the decision of the Board of Immigration Appeals (BIA)
affirming the denial of an immigrant visa petition (Form I-130) filed by her
spouse, Nosakhare Edokpayi, a United States citizen, on her behalf. The
respondent moves to dismiss the petition for lack of subject matter jurisdiction
and, alternatively moves to transfer the case to the United States District


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 18-60169     Document: 00514894295      Page: 2   Date Filed: 03/29/2019


                                  No. 18-60169

Court for the Northern District of Texas. The Government is correct that
although determinations pertaining to I-130 petitions are not precluded from
judicial review, this court lacks jurisdiction because the denial is not a final
order of removal. See, e.g., Ayanbadejo v. Chertoff, 517 F.3d 273, 276 (5th Cir.
2008); 28 U.S.C. § 1291; accord Ruiz v. Mukasey, 552 F.3d 269, 274-75 & n.2
(2d Cir. 2009).
      Because this court lacks jurisdiction, but the district court would have
jurisdiction under Ayanbadejo, this case may be transferred to the appropriate
district court in “the interest of justice” pursuant to 28 U.S.C. § 1631. A
balancing of equities in this case weighs in favor of a transfer of the case to the
district court because this court lacks jurisdiction, a refiled petition could be
subject to dismissal as untimely, and there is no indication that the petitioner
is acting in bad faith. See, e.g., USPPS, Ltd. v. Avery Dennison Corp., 647 F.3d
274, 277 (5th Cir. 2011). The record reflects that Mr. Edokpayi is a resident of
Dallas, Texas, and therefore, the most appropriate district court is the United
States District Court for the Northern District of Texas.          See 28 U.S.C.
§ 1391(e).
      For the foregoing reasons, the respondent’s motion to dismiss is DENIED
and the case is TRANSFERRED pursuant to § 1631 to the United States
District Court for the Northern District of Texas.




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