Rafaelano v. Wilson

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 (argued), Seattle, Washing-
ton, for the respondents-appellees.

OPINION

CLIFTON, Circuit Judge:

When Congress passed the REAL ID Act of 2005, it pro-
vided that the Act’s provisions would be effective immedi-
ately and would apply retroactively to cases then pending in
the courts. Among the provisions made immediately applica-
ble was the elimination of district court habeas corpus juris-
diction under 28 U.S.C. § 2241 for claims by aliens seeking
to avoid deportation or removal from the United States.1

1
The Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”) altered some of the terminology used in the immigration
field. The process called “deportation” was generally replaced by “remov-
al,” a form of proceeding which also covers the process previously called
 RAFAELANO v. WILSON 19641
Review of such orders was placed exclusively in the courts of
appeals, by way of petitions for review. Our court has con-
cluded that habeas petitions on appeal from district court deci-
sions 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 depart from the
United States within the following year, she was ordered to be
deported (the “1995 Order”). She contends, however, that the
1995 Order never converted into a final order of deportation
because she did depart from the United States within the one-
year time period, albeit not for very long. The Board of Immi-
gration Appeals (“BIA”) has never reviewed her case,
because neither Rafaelano nor the government appealed the
1995 Order to the BIA. She presented her current claim to the
district court in a habeas petition, which the district court
denied, and she then appealed to this court.

Following Alvarez-Barajas, we treat that appeal as if it
were a petition for review timely filed directly in this court.
Because the district court’s habeas jurisdiction was eliminated
by the REAL ID Act, we are precluded from relying upon the
record developed by the district court. As a result, we have no

“exclusion.” See Kalaw v. INS, 133 F.3d 1147, 1149 n. 2 (9th Cir. 1997).
There are important differences between the two processes, but they do
not matter in this case. Because the order at issue here was rendered prior
to the enactment of IIRIRA and provided for “deportation,” we will gener-
ally use that term throughout our discussion. As discussed below, the rele-
vant changes resulting from the REAL ID Act apply to both orders of
deportation and orders of removal.
19642 RAFAELANO v. WILSON
record from which we can determine whether the 1995 Order
did convert into a deportation order. That appears, in any
event, to be a factual decision properly assigned to the execu-
tive agency in the first instance. Thus, we grant the petition
for review and transfer the matter to the agency for further
proceedings.

I. Background

Rafaelano, a citizen and native of El Salvador, entered the
United States in 1988. In May 1990, she was arrested by the
Border Patrol and was granted administrative voluntary
departure, which required her to leave the United States
before June 9, 1990. It is not clear whether or not she did. In
July 1992, Rafaelano was detected in the United States a sec-
ond time. She was again granted administrative voluntary
departure, this time requiring that she depart by August 5,
1992. Again, we do not know whether Rafaelano left during
that time period. If she did, however, she did not remain out-
side of the United States for long.

Also in July 1992, Rafaelano married Eliseo Hercules, then
a U.S. lawful permanent resident. Hercules filed an I-130
Petition for Alien Relative on Rafaelano’s behalf in Septem-
ber 1993. The petition was approved later that year. The cou-
ple now has three minor children, all of whom are U.S.
citizens.

In June 1995, after the vehicle in which she was traveling
was stopped for a traffic violation, Rafaelano was again
detected in this country and placed in deportation proceed-
ings. She was charged with entering the United States without
inspection. After a hearing, the IJ entered the 1995 Order on
September 21, 1995, granting Rafaelano voluntary departure
in lieu of deportation, permitting her to depart on her own
within one year, or by September 21, 1996. It also provided
that if she failed to depart by that date, the right to depart vol-
untarily would be withdrawn and instead an order of deporta-
 RAFAELANO v. WILSON 19643
tion would automatically become effective.2 Neither
Rafaelano nor the government sought BIA review of the 1995
Order.

The parties dispute whether Rafaelano actually departed the
United States during this one-year period. Rafaelano main-
tains that she left several times, at least once in early 1996, on
brief social and shopping trips to Canada. Since she allegedly
departed the United States, albeit only for a brief time, Rafae-
lano argues that the departure requirement was fulfilled and
therefore the 1995 Order did not convert into a deportation
order. The government contends, however, that Rafaelano did
not depart during the relevant period, so a final order of
deportation against her became effective in September 1996
and remains outstanding.

In 1998, Rafaelano’s husband became a U.S. citizen. Three
years later, Rafaelano filed an I-485 adjustment of status
application based on her husband’s citizenship status. In
March 2003, Rafaelano attended an interview before an immi-
gration officer regarding her I-485 application. While Rafae-
lano alleges that she has never received a decision on her I-
485 application, the government contends that the application
was denied.
2
Specifically, the 1995 Order stated, in relevant part:
It is HEREBY ORDERED that the respondent be GRANTED
voluntary departure in lieu of deportation, without expense to the
Government on or before 9/21/96 or any extensions as may be
granted by the District Director, Immigration and Naturalization
Service, and under whatever conditions the District Director may
direct.
It is FURTHER ORDERED that if respondent fails to depart as
required, the above order shall be withdrawn without notice or
proceedings and the following order shall thereupon become
immediately effective: respondent shall be deported to El Salva-
dor on the charge(s) in the Order to Show Cause.
19644 RAFAELANO v. WILSON
In August 2003, the Department of Homeland Security
(“DHS”)3 issued and served upon Rafaelano a “bag and bag-
gage” departure letter4 and warrant of deportation. These doc-
uments, issued pursuant to the 1995 Order, directed Rafaelano
to report on a specified date for immediate departure to El
Salvador. The notice also precluded further administrative
relief, stating that “review of your file indicates there is no
administrative relief which may be extended to you, and it
now incumbent upon this Service to enforce your departure
from the United States.”

Rafaelano reported as directed, but before doing so, she
filed in district court a petition for habeas corpus under 28
U.S.C. § 2241 contesting the departure order. In her habeas
petition, Rafaelano argued, among other things, that because
she had departed the United States prior to September 21,
1996, the portion of the 1995 Order providing for deportation
did not become effective and therefore could not be enforced
against her. The district court granted Rafaelano a stay of
deportation pending further proceedings, and she was released
from DHS custody.
3
When Rafaelano’s immigration proceedings commenced the relevant
agency was the Immigration and Naturalization Service (“INS”). The INS
officially ceased to exist on March 1, 2003, and its functions were trans-
ferred to the Department of Homeland Security.
4
Rafaelano’s bag and baggage letter noted her deportability and pro-
vided instructions regarding her scheduled August 28, 2003, deportation:
As you know, following a hearing in your case you were found
deportable and the hearing Officer has entered an order of depor-
tation. . . . [I]t is now incumbent upon this Service to enforce
your departure from the United States. Arrangements have been
made for your departure to El Salvador on 8/28/2003 from Seattle
Washington VIA COMMERCIAL TRANSPORTATION. You
should report to a United States Immigration Officer at . . . 9:30
a.m. on 8/28/2003. You should be completely ready for deporta-
tion. At the time of your departure . . . you will be limited to 44
(forty-four) pounds of baggage.
 RAFAELANO v. WILSON 19645
Soon thereafter, a magistrate judge conducted an evidenti-
ary hearing on the arguments raised in the habeas petition and
issued proposed findings of fact and conclusions of law,
which were subsequently adopted by the district court. The
court dismissed Rafaelano’s petition, holding that Rafaelano
did not depart the United States prior to September 21, 1996,
and was therefore subject to an effective order of deportation.
Rafaelano then appealed to this court.

II. Discussion

This court reviews de novo questions of law, including due
process challenges to immigration decisions and statutory
interpretation questions. Perez-Gonzalez v. Ashcroft, 379 F.3d
783, 786 (9th Cir. 2004); Padilla v. Ashcroft, 334 F.3d 921,
923 (9th Cir. 2003).

A. Jurisdiction

This case arrived in our court on appeal from the district
court’s denial of the habeas petition in December 2004. The
jurisdictional landscape has changed significantly since that
time, however.

[1] Specifically, while this case was pending before our
court, Congress enacted the REAL ID Act of 2005. Pub. L.
No. 109-13, 119 Stat. 231 (May 11, 2005). The Act intended
to “streamline what Congress saw as uncertain and piecemeal
review of orders of deportation, divided between the district
courts (habeas corpus) and the courts of appeals (petitions for
review)” by effectively “limit[ing] all aliens to one bite at the
apple with regard to challenging an order of deportation.”
Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005).
This goal was accomplished by, among other statutory
changes, granting courts of appeals exclusive jurisdiction to
review challenges to deportation orders:

Notwithstanding any other provision of law . . . a
petition for review filed with an appropriate court of
19646 RAFAELANO v. WILSON
appeals in accordance with this section shall be the
sole and exclusive means for judicial review of an
order of removal entered or issued under any provi-
sion of this chapter . . . .

8 U.S.C. § 1252(a)(5) (enacted by REAL ID Act
§ 106(a)(1)(B)) (emphasis added). The Act eliminated the role
of the district courts by eliminating habeas jurisdiction over
such orders:

Judicial review of all questions of law and fact,
including interpretation and application of constitu-
tional and statutory provisions, arising from any
action taken or proceeding brought to remove an
alien from the United States under this subchapter
shall be available only in judicial review of a final
order under this section. Except as otherwise pro-
vided in this section, no court shall have jurisdiction,
by habeas corpus under section 2241 of Title 28, or
any other habeas corpus provision, by section 1361
or 1651 of such title, or by any other provision of
law (statutory or nonstatutory), to review such an
order or such questions of law or fact.

8 U.S.C. § 1252(b)(9) (amended by REAL ID Act
§ 106(a)(2)); see Alvarez-Barajas, 418 F.3d at 1052.

These judicial review provisions apply immediately to
cases pending on the date of enactment, and Rafaelano’s
habeas petition is among those affected by the Act. Although
the statute, as quoted above, generally refers to an “order of
removal,” these changes also clearly apply to an order of “de-
portation.” Section 106(b) of the REAL ID Act states explic-
itly that the amendments “shall apply to cases in which the
final administrative order of removal, deportation, or exclu-
sion was issued before, on, or after the date” the statute was
enacted. (Emphasis added.) Section 106(d) states that not-
withstanding any other provision of law, including any habeas
 RAFAELANO v. WILSON 19647
corpus statute, a petition for review to the court of appeals
“shall be the sole and exclusive means for judicial review of
an order of deportation” under the pre-IIRIRA immigration
statute. (Emphasis added.) See also REAL ID Act of 2005,
§ 106(c) (providing for transfer of any habeas corpus case
challenging, among other things, an order of deportation that
is pending in the district court on the date of enactment to the
court of appeals for treatment as a petition for review).

[2] The jurisdictional provisions of 8 U.S.C. § 1252 apply
to “all questions of law and fact . . . arising from any action
taken or proceeding brought to remove an alien from the
United States,” so judicial review of claims arising from such
actions is governed exclusively by that section. 8 U.S.C.
§ 1252(b)(9) (emphasis added). Rafaelano does not challenge
the 1995 Order itself, but rather contests the action the gov-
ernment intends to take to remove or deport her from the
United States. Since her petition, in its entirety, resulted from
the government’s effort to expel her from the United States,
her claim lies within the purview of 8 U.S.C. § 1252, includ-
ing the changes made by the REAL ID Act.

[3] We have decided that habeas petitions on appeal from
district court decisions that are now pending before us will be
treated as timely-filed petitions for review from the BIA.
Alvarez-Barajas, 418 F.3d at 1053 (“[W]e hold that [the peti-
tioner’s] habeas petition should be construed as if it were a
timely filed petition for review with this court . . . . Any other
interpretation of the REAL ID Act would create an absurd
result where the circuit courts would lack jurisdiction to
review habeas petitions by aliens that were pending before the
circuits when the REAL ID Act passed, but would allow such
review if the petition was still pending before a district
court.”); see also Martinez-Rosas v. Gonzales, 424 F.3d 926,
928-29 (9th Cir. 2005).

[4] Thus, although the district court properly exercised
jurisdiction when Rafaelano’s habeas petition was before it,
19648 RAFAELANO v. WILSON
such habeas jurisdiction has been eliminated. Accordingly, we
treat the habeas petition as if it were a timely-filed petition for
review filed with this court in the first instance.

[5] We clearly have jurisdiction over the claim made by
Rafaelano, now taken to be in the form of a petition for
review. Section 106(a)(1)(A)(iii) of the REAL ID Act, added
the following provision to 8 U.S.C. § 1252:

Nothing in . . . any . . . provision of this Chapter
(other than this section) which limits or eliminates
judicial review, shall be construed as precluding
review of constitutional claims or questions of law
raised upon a petition for review filed with an appro-
priate court of appeals in accordance with this sec-
tion.

8 U.S.C. § 1252(a)(2)(D). In arguing that the 1995 Order
never became a deportation order, Rafaelano has undoubtedly
raised a constitutional due process argument, that it would
violate due process for the government to expel her from the
United States without a valid and effective deportation order.
Accordingly, under subsection (a)(2)(D), Rafaelano’s claim is
entitled to review by us.

B. Subject of Review

[6] Treating Rafaelano’s habeas petition as a petition for
review presents us with a unique complication that this court
has not yet faced. When converting habeas petitions into peti-
tions for review, we have consistently reviewed the adminis-
trative record and applicable BIA decision, rather than those
of the district court. Our case law explicitly precludes us from
reviewing the district court decision. Under 8 U.S.C.
§ 1252(b)(4)(A), the district court record and proceedings are
treated as if non-existent. See 8 U.S.C. § 1252(b)(4)(A)
(“[T]he court of appeals shall decide the petition [for review]
only on the administrative record on which the order of
 RAFAELANO v. WILSON 19649
removal is based.”); Alvarez-Barajas, 418 F.3d at 1053 (“The
conversion, however, changes the decision we review, and we
now review the BIA’s decision, not the district court’s
orders.”); see also Bonhometre, 414 F.3d at 446 (“[W]e will
consider the District Court’s opinion to be non-existent, and
will address the procedural due process claims raised by [the
petitioner] in his opening brief to the District Court as if they
were raised in a petition for review before us in the first
instance.”); Cordes v. Gonzales, 421 F.3d 889, 892 (9th Cir.
2005). Similarly, we apply the standards of review and juris-
dictional scope of petitions for review, rather than those of
habeas petitions. Thus, for all practical purposes, such habeas
petitions are treated, in their entirety, as timely-filed petitions
for review.

[7] Until now, this transition has been relatively seamless.
In every case in which we have converted a pending habeas
petition into a petition for review under the REAL ID Act, the
petitioner had previously appealed to the BIA and we were
thereby able to review the BIA’s decision and factual find-
ings. Here, however, we have neither a BIA decision nor a
comprehensive administrative record to review. Neither
Rafaelano nor the government contested or sought BIA
review of the 1995 Order. Her current claim centers on some-
thing entirely different. Instead, Rafaelano argues that she
timely departed under, and thereby fulfilled, the requirements
of the 1995 Order. No further proceedings occurred until
2003, when Rafaelano received a notice barring any further
administrative review. Thus again, her case did not — and by
the terms of the 2003 notice, could not — continue to the
BIA.

[8] We cannot resolve the issues by relying solely on the
existing administrative record, because resolution of the
issues requires determinations of fact that have not been
made. Specifically, resolution of Rafaelano’s claim requires a
factual determination regarding whether she left the United
States during her 1995-96 voluntary departure period. If
19650 RAFAELANO v. WILSON
Rafaelano did depart, she is not subject to an effective depor-
tation order.5 If Rafaelano did not depart, however, she
remains subject to an outstanding final order of deportation.
As discussed above, even though a magistrate judge has
already conducted a comprehensive evidentiary hearing on
these contested factual issues and prepared thorough proposed
findings of fact and conclusions of law, which were adopted
by the district court in denying the habeas petition, we cannot
provide these factual findings any deference or regard.

[9] Accordingly, we are left in a situation where we cannot
review the decision of the district court and yet have no BIA
decision to review nor any administrative record regarding the
relevant factual issue: whether Rafaelano departed the country
during the one-year period up to September 21, 1996. Further,
we cannot adjudicate Rafaelano’s claims in the first instance,
as our review is generally limited to what is contained in the
administrative record. Absent such a record, we are unable to
resolve the contested factual accounts which form the basis of
the issues now before us. See Fisher v. INS, 79 F.3d 955, 963
(9th Cir. 1996) (en banc); see also 8 U.S.C. § 1252(b)(4)(A)
5
The government has not contested the legal premise of Rafaelano’s
argument, that a departure during the one-year period prior to September
21, 1996, even if it was only brief, satisfied the voluntary departure
requirement such that the deportation order did not become effective.
The laws and procedures governing voluntary departure have changed
significantly since 1995, when Rafaelano was granted such relief, such
that this situation is unlikely to arise under existing law. For example,
Congress has since enacted a reinstatement provision applicable to aliens
who have been granted voluntary departure, which reinstates prior orders
of removal upon the alien’s illegal reentry into the United States. See 8
U.S.C. § 1231(a)(5) (“If the Attorney General finds that an alien has reen-
tered the United States illegally after having been removed or having
departed voluntarily, under an order of removal, the prior order of removal
is reinstated from its original date and is not subject to being reopened or
reviewed, the alien is not eligible and may not apply for any relief under
this chapter, and the alien shall be removed under the prior order at any
time after the reentry.”). The government has not argued that this provi-
sion, or any similar or predecessor provision, applies to Rafaelano.
 RAFAELANO v. WILSON 19651
(“[T]he court of appeals shall decide the petition only on the
administrative record on which the order of removal is
based.”); Azanor v. Ashcroft, 364 F.3d 1013, 1021 (9th Cir.
2004) (“[W]e must decide whether to grant or deny the peti-
tion for review based on the Board’s reasoning rather than our
independent analysis of the record.”).

[10] As noted earlier, if Rafaelano’s 1995 voluntary depar-
ture order did not convert into a deportation order — which
we cannot determine through the existing record — she has
presented a constitutional due process argument deserving of
review and potential remedy. We are not equipped or permit-
ted to provide this review ourselves. In light of these unusual
circumstances, we find it necessary and appropriate to transfer
this matter to the BIA to permit the executive agency to con-
sider the contested issues and conduct any necessary fact-
finding. See INS v. Ventura, 537 U.S. 12, 16 (2002) (quoting
Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744
(1985)) (“A court of appeals ‘is not generally empowered to
conduct a de novo inquiry into the matter being reviewed and
to reach its own conclusions based on such an inquiry.’ . . .
Rather, ‘the proper course, except in rare circumstances, is to
remand to the agency for additional investigation or explana-
tion.’ ”). Considering the case’s current procedural posture
and the need for fact-finding, the agency is best suited to
make this determination in the first instance. See Gonzales v.
Thomas, 126 S.Ct. 1613, 1615 (2006); Ventura, 537 U.S. at
17 (“The agency can bring its own expertise to bear upon the
matter; it can evaluate the evidence; it can make an initial
determination; and, in doing so, it can, though informed dis-
cussion and analysis, help a court later determine whether its
decision exceeds the leeway that the law provides.”). To be
sure, it may seem a bit unusual to transfer the matter to the
BIA when it has never been before the Board, but the Board
is our court’s usual point of contact with the relevant execu-
tive agency and thus seems to be the logical place for us to
direct it.6 We infer such deference to the executive agency to
6
That does not mean that the BIA itself is expected to conduct any nec-
essary factfinding. The BIA serves an appellate function and does not cus-
19652 RAFAELANO v. WILSON
be the intent of the immigration laws generally and the REAL
ID Act in particular.

III. Conclusion

We conclude that we must transfer this matter to the BIA
to determine whether the 1995 Order became an effective
order of deportation because Rafaelano failed to depart the
United States on or before September 21, 1996.

PETITION FOR REVIEW GRANTED; MATTER
TRANSFERRED TO THE BOARD OF IMMIGRATION
APPEALS.

RAWLINSON, Circuit Judge, 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 depar-
ture. I agree with the majority that the lack of a decision by
the BIA results in de novo review by this court. However, I

tomarily engage in factfinding. It does, though, possess the power to
remand any and all proceedings to an IJ or to the relevant executive
agency, now within the Department of Homeland Security, for further
factfinding. See 8 C.F.R. § 1003.1(d)(3)(iv) (2006) (“If further factfinding
is needed in a particular case, the Board may remand the proceeding to the
immigration judge or, as appropriate, to the Service.”). The BIA may be
better equipped than we are to determine how the required facts can best
be determined within the executive branch, so we will direct the matter
there.
 RAFAELANO v. WILSON 19653
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 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 court’s factual
findings, see Alvarez-Barajas v. Gonzales, 418 F.3d 1050,
1053 (9th Cir. 2005). However, that does not mean that we
are without recourse in performing our required review.

Rule 48 of the Federal Rules of Appellate Procedure specif-
ically provides for the appointment of a special master “to
recommend factual findings and disposition . . .” Fed. R. App.
P. 48(a). The rule provides in pertinent part:

(a) Appointment; Powers. A court of appeals
may appoint a special master to hold hearings, if
necessary, and to recommend factual findings and
disposition in matters ancillary to proceedings in the
court . . . .

...

(b) Compensation. If the master is not a judge or
court employee, the court must determine the mas-
ter’s compensation and whether the cost is to be
charged to any party.

It could be argued that referral of this matter would not
comport with the language of the rule that refers to “ancillary
matters.” However, the Advisory Committee Notes clarify
this point, stating that:
19654 RAFAELANO v. WILSON
. . . There are instances when the question before a
court of appeals requires a factual determination . . . .

Ordinarily when a factual issue is unresolved, a
court of appeals remands the case to the district court
or agency that originally heard the case . . . How-
ever, when factual issues arise in the first instance
in the court of appeals . . . it would be useful to have
authority to refer such determinations to a master for
a recommendation.

Fed. R. App. P. 48, Advisory Committee Notes, 1994 Amend-
ments (emphasis added).

I read Rule 48 as authorizing us to appoint a special master,
including a magistrate judge, see Fed. R. App. P. 48(b), to
“recommend factual findings and disposition” in this matter.
Fed. R. App. P. 48(a). I am aware of no authority that would
permit us to satisfy our obligation to conduct a de novo
review by transferring this petition to the BIA, and the major-
ity opinion cites none. Indeed, the cases cited by the majority
refer to a remand to the BIA, rather than a transfer. See INS
v. Ventura, 537 U.S. 12, 15-16 (2002) (discussing remand
when the Court of Appeals is “review[ing] a decision of the
BIA”) (emphasis added); see also Gonzales v. Thomas, 126
S. Ct. 1613, 1614-15 (same). A remand is not appropriate in
this case because the function of a remand is to return a case
to the decisionmaker to permit that decisionmaker to correct
an error, or otherwise perform an adjudicatory function that
was neglected or overlooked. See N.L.R.B. v. Enterprise Ass’n
of Steam Pipefitters, 429 U.S. 507, 522 n.9 (1977); see also
Black’s Law Dictionary 1319 (8th ed. 1999) (defining “re-
mand” as: “[t]o send (a case or claim) back to the court or tri-
bunal from which it came for some further action.”)
(emphasis added).

Without citing any supporting authority, the majority
blithely transfers this case to the BIA for initial consideration,
 RAFAELANO v. WILSON 19655
even though the BIA performs an appellate function rather
than a factfinding one. Matter of Fedorenko, 19 I. & N. Dec.
57, 74 (BIA 1984) (“The Board is an appellate body whose
function is to review, not to create, a record.”) (citation omit-
ted); see also 8 C.F.R. § 1003.1(d)(1) (designating the BIA’s
function as an appellate body) and (d)(3)(i) (“The Board will
not engage in de novo review of findings of fact determined
by an immigration judge.”).

I cannot agree that an unauthorized transfer to the BIA is
appropriate. Rather, I would appoint the magistrate judge who
prepared the report and recommendation as a special master
in this case, and have her submit her findings and recommen-
dations directly to this Court pursuant to Fed. R. App. P. 48.
We would then be able to conduct de novo review, using the
magistrate judge’s report as the starting point.

Because the majority opinion transfers this petition to the
BIA without authority to do so, I respectfully dissent.