Cordes v. Mukasey

517 F.3d 1094, 2008 WL 482838

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 25, 2008
• Docket: 04-15988
• Status: Published

Opinions

ORDER

On June 30, 2005, the BIA sua sponte reopened the underlying proceeding, vacated its order of removal, and remanded the matter to the Immigration Judge. This stripped us of jurisdiction to enter our opinion, filed on August 24, 2005. See Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir.2002). This case is different from Lolong v. Gonzales, 484 F.3d 1173, 1177 (9th Cir.2007), because, here, the BIA remanded to the IJ for “further proceedings” and to enter a “new decision” regarding removal, whereas in Lolong, “[t]he BIA reversed, but rather than remanding Lolong’s case to the IJ for entry of an order of removal, the BIA itself granted her voluntary departure.” The remand for further proceedings is what caused us to lose jurisdiction. Otherwise, this court and the IJ would both have been considering the same thing at the same time: Cordes’s removal. Although we didn’t know it, this happened before the panel published its opinion. Accordingly, we now vacate our August 24, 2005 opinion and deny the pending petition for rehearing en banc as moot.