                                                                              FILED
                             NOT FOR PUBLICATION                               JUL 19 2010

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


JUAN MACHUCA-TELLEZ,                             No. 06-71620

               Petitioner,                       Agency No. A035-939-897

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


              On Order of Transfer from the United States District Court
                             for the District of Arizona
                     Susan K. Bolton, District Judge, Presiding

                             Submitted July 15, 2010**
                             San Francisco, California

Before: TALLMAN and BYBEE, Circuit Judges, and BURGESS, United States
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Timothy M. Burgess, United States District Judge for
the District of Alaska, sitting by designation.
      Petitioner Juan Machuca-Tellez requests that we treat his petition for a writ

of habeas corpus, originally filed in the district court pursuant to 28 U.S.C. § 2241

and subsequently transferred here on motion of the Attorney General, as a petition

for review. We cannot construe the underlying petition as a petition for review of

the Board of Immigration Appeals’s 2000 order of removal because it was filed

after the effective date of the REAL ID Act of 2005. See Iasu v. Smith, 511 F.3d

881, 888–89 (9th Cir. 2007) (finding it “improper to allow a habeas petition that

was not pending on or before May 11, 2005, to be treated as a petition for

review”). The Attorney General concedes that it erroneously obtained the transfer

order because it now realizes Petitioner’s habeas corpus petition was not pending at

the time the REAL ID Act went into effect. See id. at 888 (stating that the

petitioner could not use the “statutory replacement” of direct review of a

transferred habeas petition because no habeas petition was pending on the REAL

ID Act’s effective date).

      To the extent that the § 2241 petition challenged the conditions of Machuca-

Tellez’s detention in 2005, it is dismissed as moot because he was removed to

Mexico on or about January 23, 2006.

      DISMISSED.




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