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LEBLANC v. HOLDER, NO. 13-2474

Decided: April 21, 2015

Ashton LeBlanc petitioned for a review of the denial of his motion to reopen the denial of an I-130 petition filed on behalf of his son, Robert LeBlanc.  The court dismissed LeBlanc’s petition for lack of jurisdiction over the petition.

Ashton LeBlanc worked in Nigeria from 1968 to 1978 on off-shore oil rigs.  While in Nigeria, he entered into a relationship, and his son, Robert LeBlanc, was born on September 6, 1970.  Ashton left Nigeria in 1978.  In 2001, Robert entered the United States to visit his father.  During Robert’s visit, both Ashton and Robert decided that Robert should stay in the US.  In 2002, Ashton’s attorney, Stuart Snyder, filed an I-130, which was denied in May 2007.  Thereafter, Ashton and Robert remained in contact with Snyder about the appeal, and Snyder assured them everything was moving forward.  Moreover, in 2011, Ashton contacted a second attorney to look into Robert’s citizenship status.  Snyder assured the attorney that everything had been handled properly.  However, upon hiring a third attorney in 2011, Ashton learned that Snyder had not been diligent in performing his duties.  Thereafter, that attorney moved to reopen the denial of the I-130 petition with the Board of Immigration Appeals (BIA).  The BIA denied the motion in November of 2013 because Ashton LeBlanc had not made a claim of ineffective assistance of counsel against the second attorney” and Ashton subsequently filed a petition for review.

The court determined that it lacked jurisdiction over Ashton LeBlanc’s petition for review.  In the immigration context, the court’s jurisdiction is limited to reviewing a final order of removal.  It was undisputed, however, that Robert was not and had never been in deportation proceedings.  Thus, the court had no jurisdiction over Ashton’s petition for review because the petition for review was from Ashton’s denied motion to reopen his visa petition, not an order of removal against Robert.

Additionally, the court determined that 28 U.S.C. § 1631 did not apply to this case.  This section provides that when 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.”  The court determined that the “interests of justice” did not require transfer because an I-130 could not have led to Robert gaining US citizenship.  Thus, the court dismissed Ashton LeBlanc’s petition.

Full Opinion

Charles Buist