IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-60367

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

United States Court of Appeals

Fifth Circuit

F I L E D

September 24, 2012

Lyle W. Cayce

Clerk

 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: 12-60367 Document: 00511996857 Page: 1 Date Filed: 09/24/2012
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

 Section 1631 provides: 1

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

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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

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