
    Miguel DIAZ-ORDAZ; et al., Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent.
    
    No. 02-74353.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Jan. 14, 2005.
    Decided June 1, 2005.
    Kim D. Pederson, Rhoda Wilkinson Domingo, Esq., Law Office of Rhoda Domingo, San Francisco, CA, for Petitioners.
    Ronald E. LeFevre, Chief Counsel, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Linda S. Wendtland, Esq., Edward C. Durant, Esq., Jason S. Patil, DOJ-U.S. Department of Justice, Civil Div./Office of Immigration Lit., Washington, DC, for Respondent.
    Before: BRIGHT, TASHIMA, and CALLAHAN, Circuit Judges.
    
      
       Alberto R. Gonzales is substituted for his predecessor, John Ashcroft, as Attorney General. See Fed. R.App. P. 43(c)(2).
    
    
      
       The Honorable Myron H. Bright, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation.
    
   MEMORANDUM

The Board of Immigration Appeals (“BIA”) acted ultra vires in issuing an order of removal in the first instance. See Molina-Camacho v. Ashcroft, 393 F.3d 937, 939 (9th Cir.2004). Because the BIA did not remand this matter to the Immigration Judge to issue a removal order, no valid final order of removal exists, and we therefore lack jurisdiction over this petition for review. See 8 U.S.C. § 1252; Molina-Camacho, 393 F.3d at 942.

In the interests of justice, however, we treat the petition for review as a petition for writ of habeas corpus under 28 U.S.C. § 2241 and transfer the petition to the United States District Court for the Northern District of California. See 28 U.S.C. § 1631; Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 919 (9th Cir.2004). Upon transfer, the district court should remand to the agency for further proceedings. See Molina-Camacho, 393 F.3d at 942 n. 4.

PETITION TRANSFERRED. 
      
       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.
     