Hernandez-Gallardo

MEMORANDUM *

Cesar Hernandez-Gallardo, a citizen of Mexico, petitions for review of a Board of Immigration Appeals (“BIA”) decision affirming an Immigration Judge’s denial of his appeal of a removal order by way of a habeas corpus petition in the district court. 1 We dismiss the petition in case number 04-56996, grant the petition in case number 04-75406 and remand to the BIA for further proceedings.

The petitions are properly before us. Hernandez-Gallardo petitioned in district court for a writ of habeas corpus challenging the BIA removal order. Certain non-exhausted issues were transferred to us by the district court as a petition for review (No. 04-75406). As to those, we have jurisdiction pursuant to 8 U.S.C. § 1252 . The district court denied the habeas petition over which it retained jurisdiction, rejecting the remaining issues, and Hernandez-Gallardo appealed that denial (No. 04-56996). Hernandez-Gallardo’s appeal of the denial of the habeas corpus petition was pending when the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (2005), was enacted. “[W]e construe [an alien’s] habeas petition as if it were a timely filed petition of review with this court. We therefore…