Benavides-Pina

MEMORANDUM ***

After a hearing before an IJ, Gabriel Benavides-Pina was denied discretionary relief from deportation under sections 212(c) and 241(a)(1)(H) of the Immigration and Nationality Act. 8 U.S.C. §§ 1182 (c), 1251(a)(1)(H) (1994). He filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 , asserting that he was denied due process because the IJ was biased against him. The district court denied the petition and Benavides-Pina appealed.

Because the appeal was pending in this court upon enactment of the REAL ID Act, we treat it as a timely filed petition for review. Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1053 (9th Cir.2005). As a petition for review, we review the agency’s decision, not the district court’s order. Id. Because the BIA affirmed the IJ’s decision without opinion, “we evaluate the IJ’s decision as we would that of the Board.” Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir.2004) (citation omitted).

This court lacks jurisdiction to review any discretionary “decision or action of the Attorney General or the Secretary of Homeland Security.” 8 U.S.C. § 1252 (a)(2)(B). However, we retain jurisdiction to review colorable constitutional claims or…