Diaz-Toscano v. Gonzales

ORDER ***

Luis Diaz-Toscano, a native and citizen of Mexico, petitioned our court for review of the BIA’s decision reversing the IJ’s decision granting cancellation of removal. The IJ granted cancellation of removal after Diaz-Toscano conceded removability. The BIA vacated the IJ’s decision, then granted voluntary departure, with an alternative order that Diaz-Toscano be removed to Mexico.

The BIA had no authority to issue an order removing Diaz-Toscano to Mexico. See Molinar-Camacho v. Ashcroft, 393 F.3d 937, 941 (9th Cir.2004). As in Molinar-Camacho, the BIA’s act of issuing an ultra vires…