Nathaniel Flores Pazcoguin v. Donald A. Radcliffe, District Director Immigration and Naturalization Service

Dissent by

ORDER

The opinion in this case, filed June 25, 2002 and published at 292 F.3d 1209 (9th Cir.2002), is amended by striking therefrom the dissent of Judge Berzon, and substituting in its place Judge Berzon’s dissent filed contemporaneously with this order. No change is made in the majority opinion.

Judges Thompson and O’Scannlain have voted to deny the Petition for Rehearing. Judge O’Scannlain has voted to deny the Petition for Rehearing En Banc, and Judge Thompson has recommended denial of that petition. Judge Berzon has voted to grant the Petition for Rehearing and the Petition for Rehearing En Banc.

The full court has been advised of the Petition for Rehearing En Banc, and no judge of the court has requested a vote on that petition. See Fed. R.App. P. 35(b).

The Petition for Rehearing and the Petition for Rehearing En Banc are DENIED.

DISSENTING OPINION

dissenting.

By applying burden of proof concepts applicable at trial, the majority interprets INA § 212(a)(2)(A)®, 8 U.S.C. § 1182 (a)(2)(A)®, to exclude from this country individuals who have not actually admitted committing any crime. Under the majority’s approach, for example, someone who assaulted another in self-defense could be excluded, as long as the law of the country where the assault occurred made self-defense an affirmative defense at trial. Because Pazeoguin did not admit to using marijuana without authorization of law, and therefore may not have committed any crime, I respectfully dissent from the majority’s conclusion that he is excludable.

Additionally, the BIA’s decisions permit the use of only those admissions made after an alien has been fully informed about the legal requirements governing conviction of the crime to which he then admits. I would hold that the BIA abused its discretion by relying on an uninformed admission in violation of its own precedent.

1. “Essential Elements”

Section 212(a)(2)(A)® classifies as “inadmissible” (with certain exceptions and discretionary waivers not relevant here):

Id. The majority bases its holding…

308 F.3d 934 Nathaniel Flores PAZCOGUIN, Petitioner, v. Donald A. RADCLIFFE, District Director; Immigration and Naturalization Service, Respondents. No. 00-70595. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 5, 2001. Filed June 25, 2002. Amended October 25, 2002. James A. Stanton, Honolulu, HI, for the petitioner. Jeffrey J. Bernstein, United States Department of Justice, Washington, D.C., for the respondents. Petition to Review a Decision of the Board of Immigration Appeals. I & NS No. Atk-ffh-sjc. Before: THOMPSON, O'SCANNLAIN, BERZON, Circuit Judges. 1 Dissent by Judge BERZON. ORDER 2 The opinion in this case, filed June 25, 2002 and published at 292 F.3d 1209 (9th Cir.2002), is amended by striking therefrom the dissent of Judge Berzon, and substituting in its place Judge Berzon's dissent filed contemporaneously with this order. No change is made in the majority opinion. 3 Judges Thompson and O'Scannlain have voted to deny the Petition for Rehearing. Judge O'Scannlain has voted to deny the Petition for Rehearing En Banc, and Judge Thompson has recommended denial of that petition. Judge Berzon has voted to grant the Petition for Rehearing and…