Jose Francisco Nunes v. John Ashcroft, United States Attorney General

375 F.3d 810 Jose Francisco NUNES, Petitioner-Appellant, v. John ASHCROFT, United States Attorney General, Respondent-Appellee. No. 02-55613. United States Court of Appeals, Ninth Circuit. July 8, 2004. Sylvia Baiz, San Diego, CA, for Petitioner-Appellant. Donald E. Keener, Michelle E. Gorden, Attorney, Washington, DC, for Respondent-Appellee. Before: RYMER and TALLMAN, Circuit Judges, and LEIGHTON, * District Judge. Order: Dissent by Judge TASHIMA; Dissent by Judge REINHARDT ORDER AND DISSENTS DENYING REHEARING EN BANC ORDER The opinion filed November 3, 2003, and appearing at 348 F.3d 815 (9th Cir.2003), is amended by the opinion filed simultaneously with this order. With these amendments, the panel has voted to deny the petition for rehearing. Judges Rymer and Tallman have voted to deny the petition for rehearing en banc and Judge Leighton so recommends. The full court was advised of the petition for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35. The petition for rehearing and petition for…

dissenting from the denial of rehearing en banc:

I fully join in Judge Tashima’s eloquent dissent and agree with him about the importance of the issue. As Judge Tashima points out, the panel’s opinion, contrary to our own well-established precedent, clear Supreme Court jurisprudence, and the “historical practice,” 1 dramatically constricts the availability of habeas review in immigration cases. In my view, the opinion is not only contrary to well-established precedent but is manifestly unjust.

As a matter of general principle, once we settle a particular legal issue by issuing an en banc decision, or even by determining not to consider a case en banc, we should not revisit that legal issue for at least a reasonable period of time, barring some significant change in the law. See Nordyke v. King, 364 F.3d 1025 (9th Cir.2004) (Kozinski, J., concurring). Occasionally, however, our en banc system does not work perfectly, see, e.g., Calderon v. *818 Thompson, 523 U.S. 538 , 118 S.Ct. 1489 , 140 L.Ed.2d 728 (1998), and, occasionally, the en banc vote does not reflect the true sentiment of the majority of the court. My impression is that in this case, notwithstanding the recorded vote…

ORDER AND DISSENTS DENYING REHEARING EN BANC

ORDER

The opinion filed November 3, 2003, and appearing at 348 F.3d 815 (9th Cir.2003), is amended by the opinion filed simultaneously with this order.

With these amendments, the panel has voted to deny the petition for rehearing. Judges Rymer and Tallman have voted to deny the petition for rehearing en banc and Judge Leighton so recommends.

The full court was advised of the petition for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonre-cused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for rehearing and petition for rehearing en banc are DENIED.

joined by PREGERSON, REINHARDT, HAWKINS, THOMAS, McKEOWN, WARDLAW, W. FLETCHER, FISHER, GOULD, PAEZ and BERZON, Circuit Judges, dissenting from the denial of rehearing en banc:

I regret that a majority of the active judges of this Court did not vote to rehear this case en banc, and respectfully dissent from that decision. In its original opinion, 348 F.3d 815 , the panel held that an immigration petition for habeas corpus was barred by res judicata because, in the course of the petitioner exhausting his direct review remedies, a motions panel implicitly found that he had committed an aggravated felony. That holding, that res judicata applies to immigration habeas cases, was directly contrary to longstanding, binding precedent. See Wong Doo v. United States, 265 U.S. 239, 240-41 , 44 S.Ct. 524 , 68 L.Ed. 999 (1924); Cruz-Sanchez v. Robinson, 249 F.2d 771, 774 (9th Cir.1957). Although the panel has now amended its opinion to rely on issue preclusion rather than claim preclusion, this change does not cure the fundamental flaw in the opinion.

Moreover, the combined effect of the panel’s novel application of issue preclusion and our prudential exhaustion requirements will all but…