Rita Zamora v. Eric Holder, Jr.

Case: 12-60367 Document: 00511996857 Page: 1 Date Filed: 09/24/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 24, 2012
No. 12-60367 Lyle W. Cayce
Clerk
RITA ZAMORA,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
The Respondent urges this Court to dismiss the petition for review filed
by Ms. Rita Zamora for lack of subject-matter jurisdiction because Zamora seeks
review of the U.S. Citizenship and Immigration Service’s denial of her I-130 visa
petition. We agree that we lack jurisdiction to hear this case as a petition for
review taken directly from the Board of Immigration Appeals. Cf. 8 U.S.C. §
1252. However, we have held that federal courts do have subject-matter
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-60367
jurisdiction “to review the determinations made with respect to [a petitioner’s]
I–130 petition.” Ayanbadejo v. Chertoff, 517 F.3d 273, 276 (5th Cir. 2008).
There, we held that “determinations pertaining to I–130 petitions are not
precluded from review by courts pursuant to § 1252(a)(2)(B)(ii)” because they are
not discretionary. Id. at 279.
However, this case must first be heard in the district court. See id. at 276
(noting a district court has jurisdiction to review I-130 visa petition
determinations). Because the denial of an I-130 visa petition is not a final
removal order, our jurisdiction is properly invoked on appeal from the district
court, not via a petition for review from the Board of Immigration Appeals. See
28 U.S.C. § 1291; 8 U.S.C. § 1252(a); 5 U.S.C. § 702 (judicial review of agency
action); accord Ruiz v. Mukasey, 552 F.3d 269, 274-75 & n.2 (2d Cir. 2009)
(following Ayanbadejo and observing that “the denial of an I-130 petition by the
BIA constitutes final agency action subject to judicial review as the agency has
completed its decisionmaking process and the result of that process will directly
affect the parties”) (internal citation, quotation marks, and alterations omitted).
Because we lack original jurisdiction over this matter but a district court
would have jurisdiction under Ayanbadejo, we transfer this to the appropriate
district court because we find it is in “the interest of justice.” 28 U.S.C. § 1631;1
1
Section 1631 provides:
Whenever a civil action is filed in a court as defined in section 610 of this title
or an appeal, including a petition for review of administrative action, is noticed
for or filed with such a court and that court finds that there is a want of
jurisdiction, the court shall, if it is in the interest of justice, transfer such action
or appeal to any other such court in which the action or appeal could have been
brought at the time it was filed or noticed, and the action or appeal shall
proceed as if it had been filed in or noticed for the court to which it is
transferred on the date upon which it was actually filed in or noticed for the
court from which it is transferred.
Section 610 defines those courts to include federal courts of appeals and district courts. Id.§ 610.
2
Case: 12-60367 Document: 00511996857 Page: 3 Date Filed: 09/24/2012
No. 12-60367
see Ruiz, 552 F.3d at 276-77 (transferring case). As the record reflects that
Zamora is a resident of Houston, Texas, the most appropriate district court is the
United States District Court for the Southern 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 28 U.S.C. § 1631 to the United
States District Court for the Southern District of Texas.
3