RODRIGO SOLANO-RIVERA V. ERIC HOLDER, JR., No. 09-70637 (9th Cir. 2015)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAR 19 2015 RODRIGO SOLANO-RIVERA, Petitioner, No. 09-70637 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS Agency No. A079-561-082 MEMORANDUM* v. ERIC HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of The Board of Immigration Appeals Argued September 11, 2013; submitted March 4, 2015 San Francisco, California Before: KOZINSKI and BERZON, Circuit Judges, and ZOUHARY,** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jack Zouhary, United States District Judge, Northern District of Ohio, sitting by designation. Petitioner Rodrigo Solano-Rivera challenges a February 2007 Board of Immigration Appeals (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of his requests for asylum, withholding of removal, and protection under the Convention Against Torture. As Petitioner recognized in his supplemental brief, we lack jurisdiction under 8 U.S.C. § 1252 to review either the February 2007 BIA decision, or the February 2009 BIA decision affirming denial of voluntary departure. See Pet’r Supp. Brief at 1. Our intervening en banc decision in Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014), does not disrupt our line of cases holding that a remand by the BIA to an IJ solely to consider voluntary departure does not affect the finality of the BIA’s decision for purposes of our review. See id. at 526 n.8; see also Pinto v. Holder, 648 F.3d 976, 986 (9th Cir. 2011). Petitioner asks that we transfer his case to the district court under 28 U.S.C. § 1631 so that he may challenge the order of removal under 28 U.S.C. § 2241. A habeas petition generally may not be used to contest an order of removal. See 8 U.S.C. § 1252(a)(5). Petitioner asserts his case is different because, under Molina-Camacho v. Ashcroft, 393 F.3d 937, 941 (9th Cir. 2004), overruled by Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc), had he petitioned for review of the February 2007 BIA decision within thirty days of its entry, we would 2 have dismissed his petition as premature. Because we have since overruled MolinaCamacho, and because his petition for review is now untimely, Petitioner argues that application of our shifting caselaw to these proceedings raises Suspension Clause concerns that only a § 1631 transfer can allay. Molina-Camacho held that an appeal from a BIA decision was premature where the BIA had reversed the IJ’s grant of relief from removal and issued an order of removal, rather than remanding to the IJ for issuance of the order. See MolinaCamacho, 393 F.3d at 941–42. Here, by contrast, the IJ denied all forms of relief from removal, and thus there was no occasion for the BIA to reverse any grant of relief. Under Castrejon-Garcia v. I.N.S., 60 F.3d 1359, 1361–62 (9th Cir. 1995), Petitioner could have sought review of the February 2007 BIA decision within thirty days of its entry. See also Pinto 648 F.3d at 979–80, 985. Because Petitioner was not denied an opportunity for judicial review of the BIA decision, we deny the § 1631 transfer request. PETITION DISMISSED. 3
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