Tuan Thai, Also Known as Anh Tuan Thai, Also Known as Anh Thai Tuan v. John Ashcroft, Attorney General

389 F.3d 967 Tuan THAI, also known as Anh Tuan Thai, also known as Anh Thai Tuan, Petitioner-Appellee, v. John ASHCROFT, Attorney General, Respondent-Appellant. No. 03-35626. United States Court of Appeals, Ninth Circuit. Filed November 24, 2004. Jay Warren Stansell, Federal Public Defender's Office Western District of Washington, Seattle, WA, for Petitioner-Appellee. Jacqueline Dryden, Washington, DC, for Respondent-Appellant. Before HUG, GRABER, and CLIFTON, Circuit Judges. 1 Order; Dissent by Judge KOZINSKI. ORDER 2 The panel has voted to deny the petition for rehearing. Judges Graber and Clifton have voted to deny the petition for rehearing en banc; and Judge Hug so recommends. 3 A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R.App. P. 35(f). 4 The petition for rehearing and the petition for rehearing en banc, filed on July 1, 2004, are DENIED. 5 KOZINSKI, Circuit Judge, with whom Judges TALLMAN, BYBEE, CALLAHAN and BEA join, dissenting from denial of rehearing en banc: 6 This is a case of exceptional importance. In rejecting the Attorney…

Order; Dissent by Judge KOZINSKI.

ORDER

The panel has voted to deny the petition for rehearing. Judges Graber and Clifton have voted to deny the petition for rehearing en banc; and Judge Hug so recommends.

A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R.App. P. 35(f).

The petition for rehearing and the petition for rehearing en banc, filed on July 1, 2004, are DENIED.

dissenting from denial of rehearing en banc:

This is a case of exceptional importance. In rejecting the Attorney General’s sincere effort to bring 8 U.S.C. § 1231 (a)(6) into compliance with Zadvydas v. Davis, 533 U.S. 678 , 121 S.Ct. 2491 , 150 L.Ed.2d 653 (2001), the panel seriously undermines the power of the executive branch as to immigration, an area within its peculiar authority. In so doing, the panel releases into the population of our circuit an individual who has been found, by clear and convincing evidence, to be mentally disturbed and dangerous. We should not let this happen.

1. A few years ago, we considered whether an alien who had been given permanent resident status, but had lost that status as a result of criminal misconduct, could be held in custody indefinitely because our government could not find a country to deport him to. See Ma v. Reno, 208 F.3d 815 (9th Cir.2000). The government claimed this authority based on 8 U.S.C. § 1231 (a)(6), which seems to give the AG such power. The statute provides:

8 U.S.C. § 1231 (a)(6) (as quoted with alterations in Zadvydas, 533 U.S. at 682 , 121 S.Ct. 2491 ). The government also relied on Shaughnessy v. United States ex…