Rusu

MEMORANDUM *

Elvys Rusu and his minor daughter, Rahela, who are natives and citizens of Romania, appeal the district court’s denial of their habeas petition challenging the Board of Immigration Appeals’ (“BIA”) denial of their petition for asylum. Although the BIA found that Mr. Rusu was more likely than not to be persecuted on account of his religion if returned to Romania and, accordingly, granted him withholding of removal, the BIA denied the petition for asylum because it was untimely and no “exceptional circumstances” justified the late filing. The Rusus argue that the BIA erred as a matter of law by requiring them to show exceptional, rather than extraordinary, circumstances that would permit the late filing of their asylum application.

While this case was pending on appeal, Congress passed the REAL ID Act of 2005. Section 106(c) of the REAL ID Act *685 provides that habeas petitions brought under 28 U.S.C. § 2241 “and challenging a final administrative order of removal, deportation, or exclusion, [that were] pending in a district court on the date of the enactment” should be transferred to the appropriate court of appeals and treated as a petition for review. REAL ID Act,…