Rafaelano

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 *1099 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…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA RAFAELANO, 

Petitioner-Appellant, v. No. 05-35025 AARON G. WILSON, District Director of Bureau of Immigration  D.C. No.

CV-03-02647-RSL

and Customs Enforcement; TOM RIDGE, Secretary of Department of OPINION Homeland Security; ALBERTO R. GONZALES, Attorney General, Respondents-Appellees.  Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, Chief District Judge, Presiding

Argued and Submitted January 23, 2006—Seattle, Washington

Filed December 20, 2006

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

Opinion by Judge Clifton; Dissent by Judge Rawlinson

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

19637 19640 RAFAELANO v. WILSON

COUNSEL

Robert Pauw (argued), Gibbs Houston Pauw, Seattle, Wash- ington, for the petitioner-appellant.

John McKay, United States Attorney, Christopher L. Pickrell, Assistant United States Attorney…

Opinion by Judge CLIFTON; Dissent by Judge RAWLINSON.

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. 1 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…