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.
2

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.
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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] 
5

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 petition2 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)
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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. 
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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 
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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.
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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