Paul v. I.N.S., Docket No. 01-4027.

• Decision Date: 09 October 2003
• Docket Number: Docket No. 01-4027.
• Citation: 348 F.3d 43
• Parties: Richard A. PAUL, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE,<SMALL><SUP>*</SUP></SMALL> Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

348 F.3d 43

Richard A. PAUL, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE,^* Respondent-Appellee.

Docket No. 01-4027.

United States Court of Appeals, Second Circuit.

Submitted: June 3, 2003.

Decided: October 9, 2003.

Richard A. Paul, pro se, Batavia, New York, for Petitioner Richard A. Paul.

Edward J. McElroy, Esq., and Kathy Marks, Esq., New York, New York, for Respondent Immigration and Naturalization Service.

Before: SACK and SOTOMAYOR, Circuit Judges, DANIELS, District Judge.¹

SOTOMAYOR, Circuit Judge.

Petitioner Richard A. Paul moves for a stay of deportation and to proceed in forma pauperis in connection with his petition for review of a decision of the Board of Immigration Appeals ("BIA") finding him removable. Although petitioner's motion to this Court was untimely, we hold that the district court abused its discretion under 28 U.S.C. § 1631 by not docketing and transferring to this Court petitioner's original motion, which was filed with the district court within the statutory time limit and complied with all of the requirements of Fed. R.App. P. 15(a)(2). We therefore treat petitioner's original motion before the district court as if it had been properly transferred to us and hold that petitioner made a valid petition for review of the final order of the BIA within the statutory time limit. Respondent Immigration and Naturalization Service ("INS") is therefore ordered to respond to Paul's petition for review and to his pending motions for stay of removal and to proceed in forma pauperis.

BACKGROUND

On January 11, 2001, the BIA affirmed the decision of an Immigration Judge finding Paul, a Jamaican citizen, removable for having been convicted of second-degree robbery under N.Y. Penal Law § 160.10 (McKinney 2003), and ordering him deportable on that basis, see Immigration and Nationality Act ("INA") § 237(a)(2)(A)(iii) (codified at 8 U.S.C. § 1227(a)(2)(A)(iii)). Less than thirty days later, on February 4, 2001, Paul attempted to file what he styled as a motion for extension of time with the United States District Court for the Western District of New York. In that motion, Paul expressed an intent to appeal, inter alia, "each and every aspect of the decision handed down in the proceedings."

The district court, however, neither docketed Paul's motion nor transferred it to this Court. Instead, the district court issued a letter to Paul, dated February 9, 2001, informing him that his motion was improperly filed with the district court and that this Court was the proper forum. Paul did not file a motion for review of the BIA decision with this Court until March 12, 2001. As that motion was filed more than thirty days after issuance of the BIA decision, it was untimely. See 8 U.S.C. § 1252(b)(1). Thereafter, we ordered Paul to submit to us the original motion he attempted to file before the district court.

DISCUSSION

The INA establishes a thirty-day period in which a petition for review of a BIA determination must be filed, see 8 U.S.C. § 1252(b)(1); see also Malvoisin v. INS, 268 F.3d 74, 75-76 (2d Cir.2001) (noting untimely petition for review will deprive this Court of jurisdiction), and a petition for review of BIA determination must be filed in the court of appeals in the judicial circuit in which the immigration judge completed the proceedings. See 8 U.S.C. § 1252(b)(2); see also Henderson v. INS, 157 F.3d 106, 117 (2d Cir.1998) (noting permanent statutory changes set forth in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), of which § 1252(b)(2) is one, govern removal proceedings commenced after April 1, 1997). As Paul's proceeding before the Immigration Judge was conducted in Batavia, New York, any petition for review should have been filed with this Court within thirty days of the date the BIA determination was issued, or, by February 10, 2001.

Paul did not file a petition for review with this Court until March 12, 2001, over thirty days after the BIA determination. Were that the whole story, we would have no basis for jurisdiction over his appeal as we may not extend the thirty-day deadline for such petitions even upon a showing of good cause. See Fed. R.App. P. 26(b)(2); see also Malvoisin, 268 F.3d at 76. Paul, however, did attempt to file a motion for extension of time within the thirty-day deadline but improperly submitted this motion to the district court, and the district court neither docketed the motion nor transferred it to this Court. If the motion Paul called a motion for an extension of time that he filed with the district court is adequate to serve as a petition for review, and if the district court was under a legal obligation to transfer it to us, there would be no impediment to our asserting jurisdiction over his appeal from the BIA decision. We therefore must address two questions: (i) whether Paul's motion for extension of time met the requirements of Fed. R.App. P. 15(a)(2) and thus should be regarded as a proper petition for review; and (ii) whether it was an abuse of discretion for the district court not to transfer Paul's timely motion to this Court pursuant to 28 U.S.C. § 1631. As we answer both questions in the affirmative, we deem Paul's petition for review to have been properly filed with this Court within the statutory time limit.

The first issue is easily resolved as Paul's motion for an extension of time unquestionably met the requirements of Fed. R.App. P. 15(a)(2) (stating petition for review must name each party seeking review either in the caption or body of the petition, name the agency as respondent, and specify the order or part thereof to be reviewed). In the subject line of the motion, Paul wrote "Richard Paul (pet.) V. INS; et al (resp.)," satisfying the rule's first two requirements. Paul satisfied the third requirement by indicating that he intended to challenge "each and every aspect of the decision handed down in the [BIA and Immigration Judge] proceedings, including but not limited to my finding of ineligibility for relief pursuant to IIRIRA, my adjudication as an aggravated felon, the application of § 236(c) against me, and in general, the totality of the proceedings leading up to my order of removal." We therefore construe Paul's motion for an extension of time as a proper petition for review and treat it as such.

We turn to the second issue. Whenever a civil action or appeal, including a petition for review of administrative action such as Paul's petition for review of the BIA decision, is filed in a court that lacks jurisdiction to review it, the court in which the action or appeal was filed

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.

28 U.S.C. § 1631 (emphasis added). As we read this statute, the district court was required to transfer Paul's petition for review to us unless it was not in the interest of justice to do so.

We review a district court's refusal to transfer an action or appeal pursuant to § 1631 for abuse of discretion.² Taylor v. Social Sec. Admin., 842 F.2d 232, 232 (9th Cir.1988); Hill v. United States Air Force, 795 F.2d 1067, 1070 (D.C.Cir.1986).

In Liriano v. United States, 95 F.3d 119 (2d Cir.1996), we reviewed the legislative history of § 1631 and found that Congress intended the provision to aid litigants who were confused as to the proper forum for review. Id. at 122. We indicated that a district court should carefully weigh the equities of choosing to dismiss rather than to transfer. Id. Whether a new action filed by the litigant would be barred as untimely is one of the factors we identified as militating in favor of transfer. Id. As there is no evidence in this case that Paul filed with the district court in bad faith, we hold that it was an abuse of discretion under § 1631 for the district court not to transfer the petition to this Court since the strict thirty-day statutory deadline would normally make it in the interests of justice to do so. See 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.") (internal quotation marks and citation omitted).

We treat Paul's petition for review, which was timely filed with the district court, as if it had been properly transferred to this Court. Pursuant to § 1631, we proceed as if it were filed with us on the date on which the district court should have docketed and transferred the petition. In doing so, we join the Ninth Circuit which recently invoked § 1631 to assert jurisdiction over an appeal from a BIA determination that had been erroneously filed in the district court.³ See Baeta v. Sonchik, 273 F.3d 1261 (9th Cir.2001) (asserting jurisdiction over petitioner's appeal of a BIA final removal order where petitioner gave his appeal to INS officials at his detention center in time to meet the statutory deadline but petition was erroneously filed in the district court and filed after the time limit had lapsed).

CONCLUSION

As we deem Paul's petition for review to have been timely filed, responden...