Glory Edokpayi v. William Barr, U. S. Atty Gen ( 2019 )

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
2