Opinion
Submitted on briefs April 15, 2005.
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Walter Rafael Pineda, Esq., Law Offices of Walter Rafael Pineda, San Francisco, CA, for Petitioner.
Ronald E. LeFevre, Chief Counsel, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Linda S. Wendtland, Esq., Edward C. Durant, Esq., DOJ--U.S. Department of Justice, Civil Div./Office of Immigration Lit., Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-301-971.
Page 377.
Before: GOODWIN, BEEZER, and O'SCANNLAIN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Luis Diaz-Toscano, a native and citizen of Mexico, petitioned our court for review of the BIA's decision reversing the IJ's decision granting cancellation of removal. The IJ granted cancellation of removal after Diaz-Toscano conceded removability. The BIA vacated the IJ's decision, then granted voluntary departure, with an alternative order that Diaz-Toscano be removed to Mexico.
The BIA had no authority to issue an order removing Diaz-Toscano to Mexico. See Molina-Camacho v. Ashcroft, 393 F.3d 937, 941 (9th Cir.2004). As in Molina-Camacho, the BIA's act of issuing an ultra vires removal order "renders that portion of the proceedings a 'legal nullity.' " Id. (quoting Noriega-Lopez v. Ashcroft, 335 F.3d 874, 884 (9th Cir.2003)). Thus, we have no final order of removal before us, and we lack jurisdiction under 8 U.S. C.§ 1252 to review this petition. See Molina-Camacho, 393 F.3d at 942.
We therefore treat Diaz-Toscano's petition for review as a petition for habeas corpus under 28 U.S.C. § 2241 and transfer this petition to the United States District Court for the Northern District of California, San Francisco division. See Molina-Camacho, 393 F.3d at 941; 28 U.S.C. § 1631. Diaz-Toscano "may make any necessary amendments to perfect the form of the petition." See Molina-Camacho, 393 F.3d at 942.
TRANSFERRED.
The mandate shall issue forthwith.