LeBlanc v. Holder (Lawyers Weekly No. 001-076-15, 8 pp.) (Shedd, J.) No. 13-2474, April 21, 2015; On Petition for Review; 4th Cir.
Holding: The 4th Circuit has no jurisdiction to review denial of a motion to reopen denial of an I-130 petition filed by a man on behalf of the adult son he fathered while working for off-shore oil rigs in Nigeria during the 1970s, and the court dismisses the petition for review.
In 2001, the son entered the U.S. on a visitor’s visa to see his father. During this visit, and in light of civil strife in Nigeria, the father and son decided the son should remain in the U.S. The father hired an attorney to file the paperwork to have the son declared a U.S. citizen. The father completed and submitted to his attorney a Form N-600, Application for Certificate of Citizenship. Instead, the lawyer filed a Form I-130, a petition for adjustment of status for an alien relative. The I-130 was filed in 2002 and denied in May 2007 for failure to submit further documentation. The lawyer filed an appeal of the denial but never filed a brief of any further materials. The Board of Immigration Appeals denied the appeal without opinion in November 2007.
From 2007 to 2012, the father and son stayed in touch with the lawyer about the appeal. In 2011, the father contacted another lawyer, who contacted the first lawyer and then assured the father everything was being handled properly. The father, who by this time was in his 80s, grew more frustrated and hired a third lawyer, the current lawyer. She quickly uncovered the first lawyer’s deficient performance and moved to reopen the denial of the I-130 petition with the BIA, claiming ineffective assistance of counsel. The BIA denied the motion to reopen.
Our jurisdiction is strictly constrained and generally limited to reviewing a final order of removal. It is undisputed that the son is not now and has never been in deportation proceedings. We lack jurisdiction over the petition for review.
We further hold that 28 U.S.C. § 1631 cannot be applied to allow transfer, as in Ruiz v. Mukasey, 552 F.3d 269 (2d Cir. 2009). Several circuits, albeit in unpublished decisions, have followed Ruiz’s lead and applied § 1631 to petitions of review in immigration cases. We adopt the approach employed by the Ruiz court. However, we do not believe the “interests of justice” require transfer in this case.
To date, no fact finder has ever reviewed the son’s claim of citizenship because he has never filed the appropriate forms. To the extent the father wants his son to gain citizenship while the father is alive, the interests of justice are best served by terminating this litigation because its continuation wastes judicial resources while moving the father and son no closer to their goal.
Petition dismissed.
