                                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

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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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