Espinoza-Gutierrez

Order; Dissent by Judge KOZINSKI

ORDER DENYING PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC AND DISSENT

The panel has unanimously voted to deny appellee’s petition for rehearing. A judge called for a vote on the suggestion for rehearing en banc, but the suggestion failed to obtain the votes of a majority of the active judges.

The petition for rehearing is therefore DENIED and the suggestion for rehearing en banc is REJECTED.

dissenting from the order rejecting the suggestion for rehearing en banc.

It is “unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid United States passport.” 8 U.S.C § 1185(b). The requirement that someone living in the United States must, before departure, obtain a document establishing his right to reenter applies not just to citizens but to aliens as well. Id. § 1181. 1 The Attorney General is authorized to waive this requirement-as she has with respect to citizens visiting Canada and Mexico by car-but no other circuit has impugned the Attorney General’s authority to impose reasonable administrative requirements, such as the obtaining of reentry authorization, as a condition for leaving and returning to the United States.

The panel achieves this remarkable feat by striking down two Justice Department regulations which (in tandem) require applicants for legalization under 8 U.S.C. § 1255a to obtain advance parole-the approval of the INS to return after a brief departure. Espinoza-Gutierrez v. Smith, 94 F.3d 1270, 1276-77 (9th Cir.1996). As a consequence of this ruling, applicants…