Diaz-Ordaz v. Gonzales

132 F. App'x 738

Opinion

MEMORANDUM

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The Board of Immigration Appeals (“BIA”) acted ultra vires in issuing an order of removal in the first instance. See Molina-Camacho v. Ashcroft, 393 F.3d 937, 939 (9th Cir.2004). Because the BIA did not remand this matter to the Immigration Judge to issue a removal order, no valid final order of removal exists, and we therefore lack jurisdiction over this petition for review. See 8 U.S.C. § 1252; Molina-Camacho, 393 F.3d at 942.

In the interests of justice, however, we treat the petition for review as a petition for writ of habeas corpus under 28 U.S.C. § 2241 and transfer the petition to the United States District Court for the Northern District of California. See 28 U.S.C. § 1631; Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 919 (9th Cir.2004). Upon transfer, the district court should remand to the agency for further proceedings. See Molina-Camacho, 393 F.3d at 942 n. 4.

PETITION TRANSFERRED.

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.