LIVINGSTON, Circuit Judge:
Respondents move to dismiss for lack of jurisdiction the petition filed by Jeanette and Benicio Ruiz ("Petitioners") for review of a November 30, 2007, decision of the Board of Immigration Appeals ("BIA") dismissing Petitioners' appeal from the January 3, 2007, decision of District Director Christina Poulos denying the I-130 petition filed by Benicio Ruiz, a citizen of the United States, for classification of Jeanette Ruiz as his spouse pursuant to 8 U.S.C. § 1154(a). As we have previously concluded that we do not have jurisdiction to review the Ruizes' petition, we must consider whether transfer to an appropriate district court pursuant to 28 U.S.C. § 1631 is permissible and would better serve the interest of justice than dismissal. Because we determine that a district court does possess jurisdiction to entertain a petition for review of the denial of an I-130 petition and that the interest of justice is best served by transfer, we deny the motion and transfer the petition for review to the United States District Court for the District of Connecticut.
In February 2001, Benicio Ruiz, a citizen of the United States and a resident of
In September 2006, the United States Citizenship and Immigration Services ("USCIS") denied Jeanette's I-485 application. The adjudicating officer determined that Jeanette had demonstrated a lack of credibility by presenting conflicting accounts of her manner of entry into the United States and had been involved with Benicio Ruiz in a marriage fraud scheme. In support of the second conclusion, the adjudicating officer noted that Gabriel Pardo, a United States citizen, had previously filed an I-130 petition on Jeanette's behalf, that Jeanette had been unable to present evidence demonstrating that her marriage to Pardo was bona fide, that a subsequent investigation had revealed evidence that she was in fact the common law wife of Benicio Ruiz, and that she had confessed to having married Pardo for the sole purpose of obtaining entry to the United States. Drawing upon these conclusions, he exercised the discretion delegated to him by the Attorney General and refused to grant Jeanette lawful permanent resident status.
Also in September 2006, USCIS notified Benicio that, as a result of Jeanette's sham marriage to Pardo, it intended to deny Benicio's I-130 petition. See 8 U.S.C. § 1154(c) (barring approval of petition for immediate relative status submitted by alien who "has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States ... by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws"). In January 2007, the District Director did in fact deny Benicio's I-130 petition on behalf of Jeanette, again citing her sham marriage to Pardo as the reason behind the denial.
Petitioners appealed only the District Director's denial of Benicio's I-130 petition, and not USCIS's denial of Jeanette's I-485 application, to the BIA, arguing that it was a denial of due process for the District Director to reject the petition without allowing them to view or rebut the evidence upon which she relied, that Jeanette's marriage to Pardo was bona fide, and that the petitioners never engaged in a scheme to obtain entry into the United States. The BIA dismissed Petitioners' appeal in November 2007, finding that the District Director's decision applied the correct legal standard, was supported by substantial evidence in the administrative record, and involved no deprivation of due process.
Petitioners filed the present petition in this Court for review of the BIA's decision to deny the I-130 petition in December 2007. Respondents moved to dismiss the petition for lack of jurisdiction, arguing
Our prior determination that we lack jurisdiction over this case does not obligate us to grant the Government's motion to dismiss the petition. Pursuant to 28 U.S.C. § 1631, we may be required to transfer the matter to another court which may properly exercise jurisdiction over it. That section states:
Id. As a result, we are required to transfer a case to another court when: (1) we lack jurisdiction over the case; (2) the transferee court would have possessed jurisdiction over the case at the time it was filed; and (3) transfer would be in the interest of justice. See id.; see also Paul v. INS, 348 F.3d 43, 46 (2d Cir.2003) (holding that transfer is mandatory when all conditions are met). As we have already determined that we lack jurisdiction over the case, the first of these conditions is obviously satisfied.
The second condition for transfer, which requires that another court was capable of exercising jurisdiction at the time of filing, is more complicated.
The authority of a court to review agency decisions in the immigration context, however, is expressly limited by 8 U.S.C. § 1252(a)(2)(B).
8 U.S.C. § 1154(a)(1)(A)(i), pursuant to which Benicio Ruiz filed his I-130 petition on behalf of Jeanette Ruiz, states that "any citizen of the United States claiming that an alien is entitled ... to an immediate relative status ... may file a petition with the Attorney General for such classification." 8 U.S.C. § 1154(b) further provides:
Section 1154 is not one of the provisions enumerated in clause (i) of Section 1252(a)(2)(B). It is, however, included within "this subchapter," as that term is used in clause (ii). See Guyadin v. Gonzales, 449 F.3d 465, 468 (2d Cir.2006) ("The phrase `this subchapter' refers to subchapter II of Chapter 12 of Title 8 of the United States Code, which includes §§ 1151-1381."). The question, then, is whether a decision to grant relief under Section 1154 is "specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security." 8 U.S.C. § 1252(a)(2)(B)(ii).
Although we have not previously had cause to consider this exact matter, the Fifth Circuit has done so. Prior to its case addressing Section 1154, the Fifth Circuit considered in Yu Zhao v. Gonzales, 404 F.3d 295 (5th Cir.2005), whether a decision to deny a motion to reopen removal proceedings under 8 U.S.C. § 1229a(c) came within the ambit of 8 U.S.C. § 1252(a)(2)(B)(ii). Noting that Section 1252(a)(2)(B)(ii) "is uncharacteristically pellucid" in precluding jurisdiction only
Our own case law strongly supports the Fifth Circuit's approach. In Nethagani v. Mukasey, 532 F.3d 150 (2d Cir.2008), we considered whether 8 U.S.C. § 1252(a)(2)(B)(ii) relieved us of jurisdiction to review an agency determination that an alien was ineligible for relief from removal under 8 U.S.C. §§ 1158(b)(2)(A)(ii) and 1231(b)(3)(B)(ii) because he had been convicted of a "particularly serious crime." Nethagani, 532 F.3d at 152. We initially turned to the text of the relevant statutory provisions, which require respectively that the Attorney General "`determine'" and "`decide'" whether an alien "`has been convicted by a final judgment of a particularly serious crime.'" See id. (quoting 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii)). Considering this language, we stated that "[t]he question is not whether these inquiries require an exercise of discretion. They probably do." Id. at 154. Rather, the important question is "whether the text of the subchapter in which [the relevant provisions] appear `specifie[s]' that the `decision' is `in the discretion of the Attorney General.'" Id. (second alteration in original) (quoting 8 U.S.C. § 1252(a)(2)(B)(ii)). We determined that Sections 1158(b)(2)(A)(ii) and 1231(b)(3)(B)(ii) do not so specify because they lack "additional language specifically rendering that determination to be within [the agency's] discretion (e.g., `in the discretion of the Attorney General,' `to the satisfaction of the Attorney General,' etc.)." Id. at 154-55. In Nethagani, then, we articulated a standard for determining whether Section 1252(a)(2)(B)(ii) precludes review of a particular decision that is substantially similar to that adopted by the Fifth Circuit in Yu Zhao.
Like the provisions at issue in Nethagani, Section 1154 does not specify that a determination as to whether an alien is eligible for classification as an immediate relative of a United States citizen is "in the discretion of the Attorney General," or that an applicant must prove eligibility for classification "to the satisfaction of the Attorney General." See Nethagani, 532 F.3d at 154-55. Rather, it merely requires the Attorney General to "determine" whether the facts alleged in a petition are true, and to "determine" whether, based on those facts, an alien meets the legal definition of "immediate relative." 8 U.S.C. § 1154(b). As such, it does not contain "additional language specifically rendering [these] determination[s] to be within [the Attorney General's] discretion."
Even though a district court would have possessed jurisdiction over this case at the time of filing, however, it is still necessary for transfer that the third condition imposed by Section 1631, that any transfer be "in the interest of justice," be satisfied. When considering whether a transfer would serve the interest of justice, we must weigh "the equities of dismissing a claim when it could be transferred." Liriano v. United States, 95 F.3d 119, 122 (2d Cir.1996). "Factors militating for a transfer include a finding that a new action filed by the litigant would be barred as untimely, and a finding that the original action was filed in good faith." Id. (citations omitted). Here, the record contains no indication whatsoever that Petitioners acted in bad faith by asserting their claims in this Court instead of in a district court. Additionally, although Petitioners' claims likely would be timely if filed anew in the district court, a transfer would expedite their review, thereby furthering the interest of justice. See id. at 122-23 (employing transfer to avoid delay in resolution of successive habeas corpus petitions); see also Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir.1990) ("Normally transfer will be in the interest of justice because normally dismissal of an action that could be brought elsewhere is `time-consuming and justice-defeating.'" (quoting Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962))). Furthermore, likely as a result of these considerations, the parties are in agreement that transfer would be desirable here. Given each of these factors, we conclude that the interest of justice is better served by transfer to an appropriate district court than by dismissal.
Each of the three conditions for transfer is therefore satisfied, making transfer to an appropriate district court, rather than dismissal, mandatory. See Paul, 348 F.3d at 46. As Petitioners are residents of Connecticut, the most appropriate district court is the United States District Court for the District of Connecticut. See 28 U.S.C. § 1391(e).
For all of the foregoing reasons, Respondents' motion to dismiss is