Diaz-Toscano v. Gonzales

127 F. App'x 376

Opinion

ORDER ***

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 Molinar-Camacho v. Ashcroft, 393 F.3d 937, 941 (9th Cir.2004). As in Molinar-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 Molinar-Camacho, 393 F.3d at 942.

We therefore treat Diaz-Toseano’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 Molinar-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 Molino-Camacho, 393 F.3d at 942.

TRANSFERRED.

The mandate shall issue forthwith.

Footnotes

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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 3'6-3.