Diaz-Toscano v. Gonzales

127 F. App'x 376

Opinion

ORDER

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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.

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.