Arvayo Martinez v. Gonzales

132 F. App'x 696

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 16, 2005
• Docket: No. 04-70210
• Status: Published

Opinion

MEMORANDUM

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Gabriel Arvayo-Martinez and his wife Maria De Rosario Ruiz-Canizalez, natives and citizens of Mexico, petition for review of the decision of the Board of Immigration Appeals (“BIA”) sustaining the appeal of the Department of Homeland Security from the immigration judge’s decision which had granted petitioners’ application for cancellation of removal, and ordering the petitioners’ removal.

The BIA had no authority to issue an order removing petitioners to Mexico. See Molina-Camacho v. Ashcroft, 393 F.3d 937, 941 (9th Cir.2004). However, because 8 U.S.C. § 1252 gives us jurisdiction to review only final orders of removal, we lack jurisdiction to consider petitioners’ petition for review. We therefore treat the petition as a petition for writ of habeas corpus under 28 U.S.C. § 2241 and transfer it to the United States District Court for the District of Arizona, Phoenix Division. See 28 U.S.C. § 1631; Molina-Camacho, 393 F.3d at 942. Upon transfer, petitioners may make any necessary amendments to perfect the form of the petition. ‘We note that this decision will in no way inhibit full judicial review of [petitioners’] claim regarding cancellation of removal, [and] the district court should remand to the IJ for further proceedings.” Id., f.n. 4.

TRANSFERRED.

Tjjjg 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.