Nkele v. Gonzales

128 F. App'x 667

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 13, 2005
• Docket: No. 03-73443
• Status: Published

Opinion

MEMORANDUM

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Onyemaechi Aluma Knele and his family, natives and citizens of Nigeria, petition for review of the Board of Immigration Appeals’ decision (1) vacating an immigration judge’s decision granting cancellation of removal, asylum, and withholding of removal and (2) ordering them removed if they did not voluntarily depart. The Board acted ultra vires in issuing a removal order instead of remanding to the immigration judge, and so there is no final order of removal providing this court with jurisdiction. See Molina-Camacho v. Ashcroft, 393 F.3d 937, 941 (9th Cir.2004); Salvatierra-Cermeno v. Gonzales, 404 F.3d 1119 (9th Cir.2005). We therefore treat the petition for review as a petition for habeas corpus and order it transferred to the United States District Court for the Central District of California. Upon transfer, the Rneles 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 their claims. See Molina-Camacho, 393 F.3d at 942 n. 4. The district court should remand to the immigration judge for further proceedings. See id.

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.