Ehi Joseph Unuakhaulu v. Alberto R. Gonzales, Attorney General

ORDER

The panel judges have voted to grant the petition for rehearing of amicus curiae National Immigration Project of the National Lawyer’s Guild, filed May 2, 2005. The petition for rehearing en banc is therefore moot.

The amended opinion filed February 14, 2005, and reported at 398 F.3d 1085 , is withdrawn, and is replaced by the Second Amended Opinion.

No further petitions for rehearing or rehearing en banc will be considered.

OPINION

Ehi Joseph Unuakhaulu, a native and citizen of Nigeria, petitions for review of the Board of Immigration Appeal’s (“BIA”) summary affirmance of the Immigration Judge’s (“IJ”) decision denying him withholding of removal and relief under the Convention Against Torture (“CAT”). The central question is whether we lack jurisdiction to review his petition where the IJ found that Unuakhaulu was removable based on his aggravated felony conviction, but neither ordered him removed on that basis nor relied on the aggravated felony conviction in denying Unuakhaulu’s application for withholding of removal and for relief under CAT. We conclude that 8 U.S.C. § 1252 (a)(2)(C) divests us only of jurisdiction to review orders of removal that are actually…