United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-1851

___________

Hyun Min Park, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the

Michael Heston, District Director, * Eastern District of Missouri. 

Immigration and Naturalization *

Service; Janet Reno, Attorney General *

of the United States, *

*

Appellees. *

___________

Submitted: February 13, 2001

Filed: April 3, 2001 

___________

Before WOLLMAN, Chief Judge, BOWMAN, and MORRIS SHEPPARD ARNOLD,

Circuit Judges.

___________

WOLLMAN, Chief Judge.

On August 14, 1998, the Immigration and Naturalization Service (INS)

determined that Hyun Min Park, a South Korean national in the United States on a

temporary visa, was working without authorization. Park appeared at a removal

hearing on October 1, 1998, in Las Vegas, Nevada. She was granted voluntary

departure in lieu of removal until November 2, 1998, and an alternate order of removal
-2-

was entered should she fail to depart. On October 31, 1998, new counsel entered an

appearance for Park and filed a notice of appeal with the Board of Immigration

Appeals, listing Park’s residence as Manchester, Missouri. The BIA returned the

notice to Park for failure to comply with the applicable filing rules, and on November

12, 1998, Park filed a proper notice of appeal, which the INS dismissed on October 12,

1999, because she had affirmatively waived her appeal, rendering the immigration

judge’s determination final. On November 5, 1999, the INS issued a warrant of

removal directing INS officers to take Park into custody and remove her from the

United States, and issued a “bag and baggage” letter directing Park to report to the INS

office in Las Vegas in preparation for removal to South Korea on November 29, 1999.

On November 26, 1999 Park filed a petition purporting to request a writ of

habeas corpus based on due process violations and arguing the merits of the INS’s

determination in district court in the Eastern District of Missouri. Thereafter, she failed

to report as ordered. After preliminarily enjoining the removal, the district court denied

the petition on February 22, 2000, and Park appealed to this court. 

At oral argument, Park’s counsel, abandoning any argument that a writ of habeas

corpus should have issued, argued only the merits of the INS’s deportation actions.

Pursuant to 8 U.S.C. § 1252(b)(1-2), however, review of such deportation

determinations is available only if notice of appeal is filed within thirty days of the

issuance of the final order of removal in “the court of appeals for the judicial circuit in

which the administrative proceedings were completed,” in this case the Ninth Circuit.

We choose not to dismiss Park’s petition for direct review, however, because we

find that the interests of justice warrant transfer of this action to the United States Court

of Appeals for the Ninth Circuit. 28 U.S.C. § 1631; Gunn v. Dep’t of Agric., 118 F.3d

1233, 1240 (8th Cir. 1997). Section 1631 authorizes federal courts to transfer actions

in order to cure a want of jurisdiction.
-3-

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

of 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 or noticed for the court from which it is transferred.

§ 1631.

“Section 1631 was enacted so that parties confused about which court has

subject-matter jurisdiction would not lose an opportunity to present the merits of a

claim by filing in the wrong court and then, upon dismissal, having the claim barred by

a statute of limitations.” Gunn, 118 F.3d at 1240. We recognize, however, that “[a]

transfer can remedy the mistake of filing in the wrong court, but not the mistake of

filing in an untimely manner.” Billops v. Department of the Air Force, 725 F.2d 1160,

1163 (8th Cir. 1984). “[Section 1631] grants this court power to transfer a case in

which it lacks jurisdiction to the proper federal court provided that had the case been

filed in the proper court on the date it was filed in this court, the filing would have been

timely.” Billops, 725 F.2d at 1163 (emphasis in original). The notice of appeal filed

in this court on March 22, 2000, would have been untimely according to § 1252(b)(1)

had it been filed with the correct court, and we therefore lack authority to order transfer

under § 1631. Park’s petition for review in the district court, however, may have been

timely, depending on the resolution of an open question of which of the INS’s actions

constitutes the relevant “final order of removal” for purposes of § 1252(b)(1)’s thirtyday time limit. We do not have jurisdiction to consider this question, nor does the

district court. We conclude, therefore, that the interests of justice and the underlying

purpose of § 1631 are best served by reading that section to authorize the district court

to transfer the petition to the Ninth Circuit to cure the jurisdictional defect.
-4-

Consequently, Park’s petition for direct review of the INS’s actions is remanded

to the district court, which is directed to transfer it to the United States Court of

Appeals for the Ninth Circuit. The district court’s denial of Park’s petition for habeas

relief, however, is affirmed on grounds of abandonment. See Dewey v. Lutz, 930 F.2d

597, 599 (8th Cir. 1991).

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.