
    Hardeep SINGH, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.
    No. 03-70327.
    Agency No. [ AXX-XXX-XXX ].
    United States Court of Appeals, Ninth Circuit.
    Submitted Feb. 7, 2005.
    
    Decided Feb. 14, 2005.
    Christine Troy, San Francisco, CA, for Petitioner.
    Regional Counsel, Western Region Immigration & Naturalization Service, Laguna Niguel, CA, OIL, Susan C. Lynch, U.S. Department of Justice Civil Div./Offiee of Immigration Lit., Washington, DC, for Respondent.
    Before FERNANDEZ, GRABER, and GOULD, Circuit Judges.
    
      
       Alberto Gonzales is substituted for his predecessor, John Ashcroft, as Attorney General of the United States, pursuant to Fed. R.App. P. 43(c)(2).
    
    
      
       The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Hardeep Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from an Immigration Judge’s (“IJ”) denial of his application for adjustment of status under Immigration and Nationality Act (“INA”) § 245 (8 U.S.C. § 1255). Because the transitional rules apply, Kalaw v. INS, 138 F.3d 1147, 1150 (9th Cir.1997), we have jurisdiction under former 8 U.S.C. § 1105a(a). We vacate and remand.

Because we are unable to determine whether the BIA’s final order dismissing Singh’s appeal from the IJ’s decision was based on an exercise of discretion, and therefore unreviewable, Dillingham v. INS, 267 F.3d 996, 1003 (9th Cir.2001), or based on his statutory eligibility for adjustment of status, and therefore suitable for review, id., we vacate and remand for clarification. See Lanza v. Ashcroft, 389 F.3d 917, 932 (9th Cir.2004).

VACATED AND REMANDED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     