Chong Shin Chen v. Alberto R. Gonzales, Attorney General

411 F.3d 1049 Chong Shin CHEN, Petitioner, v. Alberto R. GONZALES, * Attorney General, Respondent. No. 02-73473. United States Court of Appeals, Ninth Circuit. June 10, 2005. Allan A. Samson, San Francisco, CA, for Petitioner. Ronald E. LeFevre, Chief Counsel, Office of the District Counsel, San Francisco, CA, Donald E. Keener, Greg D. Mack, U.S. Department of Justice, Washington, DC, for Respondent. Before WALLACE, KOZINSKI, and THOMAS, Circuit Judges. 1 Order; Dissent by Judge BEA. ORDER 2 Judges Kozinski and Thomas have voted to deny the petition for rehearing. Judge Wallace has voted to grant the petition for rehearing. A judge of the Court sua sponte requested a vote on whether to rehear the case en banc. A vote was taken on the request, and it failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35. 3 The petition for panel rehearing is DENIED. 4 BEA, joined by O'SCANNLAIN and KLEINFELD, Circuit Judges, dissenting from denial of rehearing en banc. 5 In this case, the Panel Majority concludes that this court has jurisdiction to review the BIA's decision to streamline pursuant to 8 C.F.R. § 3.1…

dissenting from denial of rehearing en banc.

In this case, the Panel Majority concludes that this court has jurisdiction to review the BIA’s decision to streamline pursuant to 8 C.F.R. § 3.1 (a)(7)(ii)(A)(B)(2002), recodified at 8 C.F.R. § 1003.1 (a)(7)(ii)(A)-(B) (2003). 1 In my view, the Panel Majority errs in three respects. Accordingly, I respectfully dissent from our court’s order denying rehearing en banc for the following reasons:

First, the Panel Majority’s decision does not state a standard of review by which this court may (or may not) determine when the BIA action of affirmance-by-one judge is or is not permissible. This omission probably occurred because, as yet, no principled basis for the Panel Majority’s actions has been articulated.

Second, the ground stated by the Panel Majority for what is a “substantial” ques *1050 tion under the regulation, 8 C.F.R. § 1003.1 (a)(7)(ii)(B), is simply that the decision will affect many people. Chen v. Ashcroft, 378 F.3d 1081, 1086-87 (9th Cir.2004) (noting that “[rjesolution of the legal and factual issues raised by Chen affects every People’s Republic of China national who entered the United States illegally but was then…

Order; Dissent by

ORDER

Judges Kozinski and Thomas have voted to deny the petition for rehearing. Judge Wallace has voted to grant the petition for rehearing. A judge of the Court sua sponte requested a vote on whether to rehear the case en banc. A vote was taken on the request, and it 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 panel rehearing is DENIED.