The Ninth Circuit Court of Appeals today released an opinion in RAFAELANO v. WILSON, No. 05-35025, a habeas corpus appeal. The panel consisted of Johnnie B. Rawlinson and Richard R. Clifton, Circuit Judges, and Consuelo B. Marshall, District Judge.
CLIFTON, Circuit Judge:
When Congress passed the REAL ID Act of 2005, it provided that the Act’s provisions would be effective immediately and would apply retroactively to cases then pending in the courts. Among the provisions made immediately applicable was the elimination of district court habeas corpus jurisdiction under 28 U.S.C. Â§ 2241 for claims by aliens seeking to avoid deportation or removal from the United States. . . .
RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent. I agree that this case has come to us in a way that presents a procedural conundrum. However, I do not agree that we may resolve our dilemma by transferring this petition to the Board of Immigration Appeals (BIA). The BIA has issued no decision on the Petitioner’s claim that she was illegally removed because she departed the United States in accordance with the grant of voluntary departure. I agree with the majority that the lack of a decision by the BIA results in de novo review by this court. However, I tomarily engage in factfinding. It does, though, possess the power to remand any and all proceedings to an IJ or to the relevant executive agency, now within the Department of Homeland Security, for further factfinding. See 8 C.F.R. Â§ 1003.1(d)(3)(iv) (2006) (”If further factfinding is needed in a particular case, the Board may remand the proceeding to the immigration judge or, as appropriate, to the Service.”). The BIA may be better equipped than we are to determine how the required facts can best be determined within the executive branch, so we will direct the matter there. . . .