Ali PARTOVI, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent, 239 F. App'x 397

MEMORANDUM Ali Partovi, a native and citizen of Iran, filed a habeas petition in district court challenging the decision of an Immigration Judge (IJ) denying his application for asylum, withholding of deportation, and relief under the Convention Against Torture (CAT). The district court denied the petition insofar as it sought relief from detention and transferred the remainder of the petition to this court under the REAL ID Act, which provides that we “treat the transferred case as if it had been filed pursuant to a petition for review.” Pub.L. No. 109-13, § 106(c), 109 Stat. 231 (2005).

Partovi applied for admission to the United States in 2001 under the Visa Waiver Permanent Program, 8 U.S.C § 1187. Visitors admitted under the program may enter the country without a visa and stay ninety days, in exchange for waiving their right to contest any removal action against them unless they challenge the removal based upon an application for asylum. See 8 U.S.C. § 1187(b)(2); 8 C.F.R. 1208.2(c)(l)(iii). Partovi was using a fraudulent passport and was immediately placed in immigration proceedings. He pled guilty to the offense of false use of passport under 18 U.S.C. § 1543.

Partovi applied for asylum, withholding of removal, and relief under the CAT. The IJ denied all relief and Partovi reserved his right to appeal. He never did, however, file an appeal with the Board of Immigration Appeals. Instead he filed his habeas petition in district court, where it was denied in part and transferred to this court under the REAL ID Act. The immigration law limits our power to review removal orders to those for which “the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1).

The exhaustion requirement applies to habeas petitioners as well as those seeking direct review. See Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir.2007). The statutory requirement is mandatory and jurisdictional. See id. Partovi’s failure to seek review from the BIA the IJ’s denial of his asylum application constitutes a failure to exhaust administrative remedies, and deprives this court of jurisdiction. See Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir.2004). DISMISSED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.