United States 9th Circuit Court of Appeals Reports

RAFAELANO v. WILSON, 05-35025 (9th Cir. 12-20-2006) MARIA
RAFAELANO, Petitioner-Appellant, v. AARON G. WILSON,
District Director of Bureau of Immigration and Customs
Enforcement; TOM RIDGE, Secretary of Department of Homeland
Security; ALBERTO R. GONZALES, Attorney General,
Respondents-Appellees. No. 05-35025. United States Court
of Appeals, Ninth Circuit. Argued and Submitted January 23,
2006 — Seattle, Washington. December 20, 2006.

Appeal from the United States District Court for the
Western District of Washington Robert S. Lasnik, Chief
District Judge, Presiding, D.C. No. CV-03-02647-RSL.

COUNSEL Robert Pauw (argued), Gibbs Houston Pauw, Seattle,
Washington, for the petitioner-appellant.

John McKay, United States Attorney, Christopher L.
Pickrell, Assistant United States Attorney (argued),
Seattle, Washington, for the respondents-appellees.

Before: Johnnie B. Rawlinson and Richard R. Clifton,
Circuit Judges, and Consuelo B. Marshall,[fn*] District

Opinion by Judge Clifton; Dissent by Judge Rawlinson

[fn*] The Honorable Consuelo B. Marshall, Senior United
States District Judge for the Central District of
California, sitting by designation.


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. § 2241 for claims by
aliens seeking to avoid deportation or removal from the
United States.[fn1] Review of such orders was placed
exclusively in the courts of appeals, by way of petitions
for review. Our court has concluded that habeas petitions
on appeal from district court decisions that were pending
before us when the REAL ID Act was enacted would be treated
as timely-filed petitions for review from the BIA. See
Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052-53 (9th
Cir. 2005).

This case presents a variation of that situation.
Petitioner Maria Rafaelano alleges that the government is
seeking to expel her from the United States without a valid
order of deportation. She acknowledges that an immigration
judge (“IJ”) granted her voluntary departure in 1995 by
means of an order that stated that if she did not
voluntarily depart from the United States within the
following year, she was ordered to be deported (the “1995
Order”). She contends, however, that the 1995 Order never
converted into a final order of deportation because she did
depart from the United States within the one-year time
period, albeit not for very long. The Board of Immigration
Appeals (“BIA”) has never reviewed her case, because
neither Rafaelano nor the government appealed the 1995
Order to the BIA. She presented her current claim to the
district court in a habeas petition, which the district
court denied, and she then appealed to this court.

Following Alvarez-Barajas, we treat that appeal as if it
were a petition for review timely filed directly in this
court. Because the district court’s habeas jurisdiction was
eliminated by the REAL ID Act, we are precluded from
relying upon the record developed by the district court. As
a result, we have no record from which we can determine
whether the 1995 Order did convert into a deportation order.
That appears, in any event, to be a factual decision
properly assigned to the executive agency in the first
instance. Thus, we grant the petition for review and
transfer the matter to the agency for further proceedings.

I. Background

Rafaelano, a citizen and native of El Salvador, entered the
United States in 1988. In May 1990, she was arrested by the
Border Patrol and was granted administrative voluntary
departure, which required her to leave the United States
before June 9, 1990. It is not clear whether or not she
did. In July 1992, Rafaelano was detected in the United
States a second time. She was again granted administrative
voluntary departure, this time requiring that she depart by
August 5, 1992. Again, we do not know whether Rafaelano
left during that time period. If she did, however, she did
not remain outside of the United States for long.

Also in July 1992, Rafaelano married Eliseo Hercules, then
a U.S. lawful permanent resident. Hercules filed an I-130
Petition for Alien Relative on Rafaelano’s behalf in
September 1993. The petition was approved later that year.
The couple now has three minor children, all of whom are
U.S. citizens.

In June 1995, after the vehicle in which she was traveling
was stopped for a traffic violation, Rafaelano was again
detected in this country and placed in deportation
proceedings. She was charged with entering the United
States without inspection. After a hearing, the IJ entered
the 1995 Order on September 21, 1995, granting Rafaelano
voluntary departure in lieu of deportation, permitting her
to depart on her own within one year, or by September 21,
1996. It also provided that if she failed to depart by that
date, the right to depart voluntarily would be withdrawn
and instead an order of deportation would automatically
become effective.[fn2] Neither Rafaelano nor the government
sought BIA review of the 1995 Order.

The parties dispute whether Rafaelano actually departed the
United States during this one-year period. Rafaelano
maintains that she left several times, at least once in
early 1996, on brief social and shopping trips to Canada.
Since she allegedly departed the United States, albeit only
for a brief time, Rafaelano argues that the departure
requirement was fulfilled and therefore the 1995 Order did
not convert into a deportation order. The government
contends, however, that Rafaelano did not depart during the
relevant period, so a final order of deportation against
her became effective in September 1996 and remains

In 1998, Rafaelano’s husband became a U.S. citizen. Three
years later, Rafaelano filed an I-485 adjustment of status
application based on her husband’s citizenship status. In
March 2003, Rafaelano attended an interview before an
immigration officer regarding her I-485 application. While
Rafaelano alleges that she has never received a decision on
her I-485 application, the government contends that the
application was denied.

In August 2003, the Department of Homeland Security
(“DHS”)[fn3] issued and served upon Rafaelano a “bag and
baggage” departure letter[fn4] and warrant of deportation.
These documents, issued pursuant to the 1995 Order,
directed Rafaelano to report on a specified date for
immediate departure to El Salvador. The notice also
precluded further administrative relief, stating that
“review of your file indicates there is no administrative
relief which may be extended to you, and it now incumbent
upon this Service to enforce your departure from the United

Rafaelano reported as directed, but before doing so, she
filed in district court a petition for habeas corpus under
28 U.S.C. § 2241 contesting the departure order. In
her habeas petition, Rafaelano argued, among other things,
that because she had departed the United States prior to
September 21, 1996, the portion of the 1995 Order providing
for deportation did not become effective and therefore
could not be enforced against her. The district court
granted Rafaelano a stay of deportation pending further
proceedings, and she was released from DHS custody.

Soon thereafter, a magistrate judge conducted an
evidentiary hearing on the arguments raised in the habeas
petition and issued proposed findings of fact and
conclusions of law, which were subsequently adopted by the
district court. The court dismissed Rafaelano’s petition,
holding that Rafaelano did not depart the United States
prior to September 21, 1996, and was therefore subject to
an effective order of deportation. Rafaelano then appealed
to this court.

II. Discussion

This court reviews de novo questions of law, including due
process challenges to immigration decisions and statutory
interpretation questions. Perez-Gonzalez v. Ashcroft, 379
F.3d 783, 786 (9th Cir. 2004); Padilla v. Ashcroft, 334
F.3d 921, 923 (9th Cir. 2003).

A. Jurisdiction

This case arrived in our court on appeal from the district
court’s denial of the habeas petition in December 2004. The
jurisdictional landscape has changed significantly since
that time, however.

[1] Specifically, while this case was pending before our
court, Congress enacted the REAL ID Act of 2005. Pub.L. No.
109-13, 119 Stat. 231 (May 11, 2005). The Act intended to
“streamline what Congress saw as uncertain and piecemeal
review of orders of deportation, divided between the
district courts (habeas corpus) and the courts of appeals
(petitions for review)” by effectively “limit[ing] all
aliens to one bite at the apple with regard to challenging
an order of deportation.” Bonhometre v. Gonzales, 414 F.3d
442, 446 (3d Cir. 2005). This goal was accomplished by,
among other statutory changes, granting courts of appeals
exclusive jurisdiction to review challenges to deportation

Notwithstanding any other provision of law . . . a
petition for review filed with an appropriate court of
appeals in accordance with this section shall be the sole
and exclusive means for judicial review of an order of
removal entered or issued under any provision of this
chapter. . . .

8 U.S.C. § 1252(a)(5) (enacted by REAL ID Act
§ 106(a)(1)(B)) (emphasis added). The Act eliminated
the role of the district courts by eliminating habeas
jurisdiction over such orders:

Judicial review of all questions of law and fact,
including interpretation and application of constitutional
and statutory provisions, arising from any action taken or
proceeding brought to remove an alien from the United
States under this subchapter shall be available only in
judicial review of a final order under this section.
Except as otherwise provided in this section, no court
shall have jurisdiction, by habeas corpus under section
2241 of Title 28, or any other habeas corpus provision, by
section 1361 or 1651 of such title, or by any other
provision of law (statutory or nonstatutory), to review
such an order or such questions of law or fact.

8 U.S.C. § 1252(b)(9) (amended by REAL ID Act
§ 106(a)(2)); see Alvarez-Barajas, 418 F.3d at 1052.

These judicial review provisions apply immediately to cases
pending on the date of enactment, and Rafaelano’s habeas
petition is among those affected by the Act. Although the
statute, as quoted above, generally refers to an “order of
removal,” these changes also clearly apply to an order of
“deportation.” Section 106(b) of the REAL ID Act states
explicitly that the amendments “shall apply to cases in
which the final administrative order of removal,
deportation, or exclusion was issued before, on, or after
the date” the statute was enacted. (Emphasis added.)
Section 106(d) states that not-withstanding any other
provision of law, including any habeas corpus statute, a
petition for review to the court of appeals “shall be the
sole and exclusive means for judicial review of an order of
deportation” under the pre-IIRIRA immigration statute.
(Emphasis added.) See also REAL ID Act of 2005, §
106(c) (providing for transfer of any habeas corpus case
challenging, among other things, an order of deportation
that is pending in the district court on the date of
enactment to the court of appeals for treatment as a
petition for review).

[2] The jurisdictional provisions of 8 U.S.C. § 1252
apply to “all questions of law and fact . . . arising from
any action taken or proceeding brought to remove an alien
from the United States,” so judicial review of claims
arising from such actions is governed exclusively by that
section. 8 U.S.C. § 1252(b)(9) (emphasis added).
Rafaelano does not challenge the 1995 Order itself, but
rather contests the action the government intends to take
to remove or deport her from the United States. Since her
petition, in its entirety, resulted from the government’s
effort to expel her from the United States, her claim lies
within the purview of 8 U.S.C. § 1252, including the
changes made by the REAL ID Act. [3] We have decided that
habeas petitions on appeal from district court decisions
that are now pending before us will be treated as
timely-filed petitions for review from the BIA.
Alvarez-Barajas, 418 F.3d at 1053 (“[W]e hold that [the
petitioner’s] habeas petition should be construed as if it
were a timely filed petition for review with this court. .
. . Any other interpretation of the REAL ID Act would
create an absurd result where the circuit courts would lack
jurisdiction to review habeas petitions by aliens that were
pending before the circuits when the REAL ID Act passed, but
would allow such review if the petition was still pending
before a district court.”); see also Martinez-Rosas v.
Gonzales, 424 F.3d 926, 928-29 (9th Cir. 2005).

[4] Thus, although the district court properly exercised
jurisdiction when Rafaelano’s habeas petition was before
it, such habeas jurisdiction has been eliminated.
Accordingly, we treat the habeas petition as if it were a
timely-filed petition for review filed with this court in
the first instance.

[5] We clearly have jurisdiction over the claim made by
Rafaelano, now taken to be in the form of a petition for
review. Section 106(a)(1)(A)(iii) of the REAL ID Act, added
the following provision to 8 U.S.C. § 1252:

Nothing in . . . any . . . provision of this Chapter
(other than this section) which limits or eliminates
judicial review, shall be construed as precluding review
of constitutional claims or questions of law raised upon a
petition for review filed with an appropriate court of
appeals in accordance with this section.

8 U.S.C. § 1252(a)(2)(D). In arguing that the 1995
Order never became a deportation order, Rafaelano has
undoubtedly raised a constitutional due process argument,
that it would violate due process for the government to
expel her from the United States without a valid and
effective deportation order. Accordingly, under subsection
(a)(2)(D), Rafaelano’s claim is entitled to review by us.

B. Subject of Review

[6] Treating Rafaelano’s habeas petition as a petition for
review presents us with a unique complication that this
court has not yet faced. When converting habeas petitions
into petitions for review, we have consistently reviewed
the administrative record and applicable BIA decision,
rather than those of the district court. Our case law
explicitly precludes us from reviewing the district court
decision. Under 8 U.S.C. § 1252(b)(4)(A), the
district court record and proceedings are treated as if
non-existent. See 8 U.S.C. § 1252(b)(4)(A) (“[T]he
court of appeals shall decide the petition [for review] only
on the administrative record on which the order of removal
is based.”); Alvarez-Barajas, 418 F.3d at 1053 (“The
conversion, however, changes the decision we review, and we
now review the BIA’s decision, not the district court’s
orders.”); see also Bonhometre, 414 F.3d at 446 (“[W]e will
consider the District Court’s opinion to be non-existent,
and will address the procedural due process claims raised
by [the petitioner] in his opening brief to the District
Court as if they were raised in a petition for review
before us in the first instance.”); Cordes v. Gonzales, 421
F.3d 889, 892 (9th Cir. 2005). Similarly, we apply the
standards of review and jurisdictional scope of petitions
for review, rather than those of habeas petitions. Thus,
for all practical purposes, such habeas petitions are
treated, in their entirety, as timely-filed petitions for

[7] Until now, this transition has been relatively
seamless. In every case in which we have converted a
pending habeas petition into a petition for review under
the REAL ID Act, the petitioner had previously appealed to
the BIA and we were thereby able to review the BIA’s
decision and factual findings. Here, however, we have
neither a BIA decision nor a comprehensive administrative
record to review. Neither Rafaelano nor the government
contested or sought BIA review of the 1995 Order. Her
current claim centers on something entirely different.
Instead, Rafaelano argues that she timely departed under,
and thereby fulfilled, the requirements of the 1995 Order.
No further proceedings occurred until 2003, when Rafaelano
received a notice barring any further administrative
review. Thus again, her case did not — and by the
terms of the 2003 notice, could not — continue to the

[8] We cannot resolve the issues by relying solely on the
existing administrative record, because resolution of the
issues requires determinations of fact that have not been
made. Specifically, resolution of Rafaelano’s claim
requires a factual determination regarding whether she left
the United States during her 1995-96 voluntary departure
period. If Rafaelano did depart, she is not subject to an
effective deportation order.[fn5] If Rafaelano did not
depart, however, she remains subject to an outstanding
final order of deportation. As discussed above, even though
a magistrate judge has already conducted a comprehensive
evidentiary hearing on these contested factual issues and
prepared thorough proposed findings of fact and conclusions
of law, which were adopted by the district court in denying
the habeas petition, we cannot provide these factual
findings any deference or regard.

[9] Accordingly, we are left in a situation where we cannot
review the decision of the district court and yet have no
BIA decision to review nor any administrative record
regarding the relevant factual issue: whether Rafaelano
departed the country during the one-year period up to
September 21, 1996. Further, we cannot adjudicate
Rafaelano’s claims in the first instance, as our review is
generally limited to what is contained in the
administrative record. Absent such a record, we are unable
to resolve the contested factual accounts which form the
basis of the issues now before us. See Fisher v. INS, 79
F.3d 955, 963 (9th Cir. 1996) (en banc); see also 8 U.S.C.
§ 1252(b)(4)(A)

(“[T]he court of appeals shall decide the petition only on
the administrative record on which the order of removal is
based.”); Azanor v. Ashcroft, 364 F.3d 1013, 1021 (9th Cir.
2004) (“[W]e must decide whether to grant or deny the
petition for review based on the Board’s reasoning rather
than our independent analysis of the record.”).

[10] As noted earlier, if Rafaelano’s 1995 voluntary
departure order did not convert into a deportation order
— which we cannot determine through the existing
record — she has presented a constitutional due
process argument deserving of review and potential remedy.
We are not equipped or permitted to provide this review
ourselves. In light of these unusual circumstances, we find
it necessary and appropriate to transfer this matter to the
BIA to permit the executive agency to consider the
contested issues and conduct any necessary fact-finding.
See INS v. Ventura, 537 U.S. 12, 16 (2002) (quoting Florida
Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)) (“A
court of appeals `is not generally empowered to conduct a
de novo inquiry into the matter being reviewed and to reach
its own conclusions based on such an inquiry.’ . . .
Rather, `the proper course, except in rare circumstances,
is to remand to the agency for additional investigation or
explanation.’ “). Considering the case’s current procedural
posture and the need for fact-finding, the agency is best
suited to make this determination in the first instance.
See Gonzales v. Thomas, 126 S.Ct. 1613, 1615 (2006);
Ventura, 537 U.S. at 17 (“The agency can bring its own
expertise to bear upon the matter; it can evaluate the
evidence; it can make an initial determination; and, in
doing so, it can, though informed discussion and analysis,
help a court later determine whether its decision exceeds
the leeway that the law provides.”). To be sure, it may
seem a bit unusual to transfer the matter to the BIA when it
has never been before the Board, but the Board is our
court’s usual point of contact with the relevant executive
agency and thus seems to be the logical place for us to
direct it.[fn6] We infer such deference to the executive
agency to be the intent of the immigration laws generally
and the REAL ID Act in particular.

III. Conclusion

We conclude that we must transfer this matter to the BIA to
determine whether the 1995 Order became an effective order
of deportation because Rafaelano failed to depart the
United States on or before September 21, 1996.


[fn1] The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”) altered some of the
terminology used in the immigration field. The process
called “deportation” was generally replaced by “removal,” a
form of proceeding which also covers the process previously
called “exclusion.” See Kalaw v. INS, 133 F.3d 1147, 1149 n.
2 (9th Cir. 1997). There are important differences between
the two processes, but they do not matter in this case.
Because the order at issue here was rendered prior to the
enactment of IIRIRA and provided for “deportation,” we will
generally use that term throughout our discussion. As
discussed below, the relevant changes resulting from the
REAL ID Act apply to both orders of deportation and orders
of removal.

[fn2] Specifically, the 1995 Order stated, in relevant part:

It is HEREBY ORDERED that the respondent be GRANTED
voluntary departure in lieu of deportation, without
expense to the Government on or before 9/21/96 or any
extensions as may be granted by the District Director,
Immigration and Naturalization Service, and under
whatever conditions the District Director may direct.

It is FURTHER ORDERED that if respondent fails to depart
as required, the above order shall be withdrawn without
notice or proceedings and the following order shall
thereupon become immediately effective: respondent shall
be deported to El Salvador on the charge(s) in the Order
to Show Cause.

[fn3] When Rafaelano’s immigration proceedings commenced the
relevant agency was the Immigration and Naturalization
Service (“INS”). The INS officially ceased to exist on
March 1, 2003, and its functions were transferred to the
Department of Homeland Security.

[fn4] Rafaelano’s bag and baggage letter noted her
deportability and provided instructions regarding her
scheduled August 28, 2003, deportation:

As you know, following a hearing in your case you were
found deportable and the hearing Officer has entered an
order of deportation. . . . [I]t is now incumbent upon
this Service to enforce your departure from the United
States. Arrangements have been made for your departure to
El Salvador on 8/28/2003 from Seattle Washington VIA
COMMERCIAL TRANSPORTATION. You should report to a United
States Immigration Officer at . . . 9:30 a.m. on
8/28/2003. You should be completely ready for deportation.
At the time of your departure . . . you will be limited to
44 (forty-four) pounds of baggage.

[fn5] The government has not contested the legal premise of
Rafaelano’s argument, that a departure during the one-year
period prior to September 21, 1996, even if it was only
brief, satisfied the voluntary departure requirement such
that the deportation order did not become effective.

The laws and procedures governing voluntary departure have
changed significantly since 1995, when Rafaelano was
granted such relief, such that this situation is unlikely
to arise under existing law. For example, Congress has
since enacted a reinstatement provision applicable to
aliens who have been granted voluntary departure, which
reinstates prior orders of removal upon the alien’s illegal
reentry into the United States. See 8 U.S.C. §
1231(a)(5) (“If the Attorney General finds that an alien
has reentered the United States illegally after having been
removed or having departed voluntarily, under an order of
removal, the prior order of removal is reinstated from its
original date and is not subject to being reopened or
reviewed, the alien is not eligible and may not apply for
any relief under this chapter, and the alien shall be
removed under the prior order at any time after the
reentry.”). The government has not argued that this
provision, or any similar or predecessor provision, applies
to Rafaelano.

[fn6] That does not mean that the BIA itself is expected to
conduct any necessary factfinding. The BIA serves an
appellate function and does not customarily 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. §
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

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 part company with the majority’s
conclusion that our de novo review consists of transferring
the matter to the BIA. In my view, de novo consideration
requires us to apply governing law to the facts of the
case. See Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th
Cir. 2001); see also Freeman v. DirecTV, Inc., 457 F.3d
1001, 1004 (9th Cir. 2006) (defining de novo review to mean
that this court “review[s] the matter anew, the same as if
it had not been heard before, and as if no decision
previously had been rendered”) (citation omitted).
Admittedly, in this case the facts were not developed before
the BIA, and we cannot rely on the district court’s factual
findings, see Alvarez-Barajas v. Gonzales, 418 F.3d 1050,
1053 (9th Cir. 2005). However, that does not mean that we
are without recourse in performing our required review.

Rule 48 of the Federal Rules of Appellate Procedure
specifically provides for the appointment of a special
master “to recommend factual findings and disposition . .
.” Fed.R.App.P. 48(a). The rule provides in pertinent part:

(a) Appointment; Powers. A court of appeals may appoint a
special master to hold hearings, if necessary, and to
recommend factual findings and disposition in matters
ancillary to proceedings in the court

. . . .

(b) Compensation. If the master is not a judge or court
employee, the court must determine the master’s
compensation and whether the cost is to be charged to any

It could be argued that referral of this matter would not
comport with the language of the rule that refers to
“ancillary matters.” However, the Advisory Committee Notes
clarify this point, stating that:

. . . There are instances when the question before a
court of appeals requires a factual determination. . . .

Ordinarily when a factual issue is unresolved, a court of
appeals remands the case to the district court or agency
that originally heard the case . . . However, when factual
issues arise in the first instance in the court of
appeals . . . it would be useful to have authority to
refer such determinations to a master for a

Fed.R.App.P. 48, Advisory Committee Notes, 1994 Amendments
(emphasis added).

I read Rule 48 as authorizing us to appoint a special
master, including a magistrate judge, see Fed.R.App.P.
48(b), to “recommend factual findings and disposition” in
this matter. Fed.R.App.P. 48(a). I am aware of no authority
that would permit us to satisfy our obligation to conduct a
de novo review by transferring this petition to the BIA,
and the majority opinion cites none. Indeed, the cases cited
by the majority refer to a remand to the BIA, rather than a
transfer. See INS v. Ventura, 537 U.S. 12, 15-16 (2002)
(discussing remand when the Court of Appeals is
“review[ing] a decision of the BIA”) (emphasis added); see
also Gonzales v. Thomas, 126 S. Ct. 1613, 1614-15 (same). A
remand is not appropriate in this case because the function
of a remand is to return a case to the decisionmaker to
permit that decisionmaker to correct an error, or otherwise
perform an adjudicatory function that was neglected or
overlooked. See N.L.R.B. v. Enterprise Ass’n of Steam
Pipefitters, 429 U.S. 507, 522 n. 9 (1977); see also Black’s
Law Dictionary 1319 (8th ed. 1999) (defining “remand” as:
“[t]o send (a case or claim) back to the court or tribunal
from which it came for some further action.”) (emphasis

Without citing any supporting authority, the majority
blithely transfers this case to the BIA for initial
consideration, even though the BIA performs an appellate
function rather than a factfinding one. Matter of
Fedorenko, 19 I. & N. Dec. 57, 74 (BIA 1984) (“The Board is
an appellate body whose function is to review, not to
create, a record.”) (citation omitted); see also 8 C.F.R.
§ 1003.1(d)(1) (designating the BIA’s function as an
appellate body) and (d)(3)(i) (“The Board will not engage
in de novo review of findings of fact determined by an
immigration judge.”).

I cannot agree that an unauthorized transfer to the BIA is
appropriate. Rather, I would appoint the magistrate judge
who prepared the report and recommendation as a special
master in this case, and have her submit her findings and
recommendations directly to this Court pursuant to
Fed.R.App.P. 48. We would then be able to conduct de novo
review, using the magistrate judge’s report as the starting

Because the majority opinion transfers this petition to the
BIA without authority to do so, I respectfully dissent.