Victoria Tchoukhrova Dmitri Tchoukhrov Evgueni Tchoukhrov v. Alberto R. Gonzales, Attorney General Tom Ridge, Secretary of Homeland Security

430 F.3d 1222 Victoria TCHOUKHROVA; Dmitri Tchoukhrov; Evgueni Tchoukhrov, Petitioners, v. Alberto R. GONZALES, Attorney General; Tom Ridge, Secretary of Homeland Security, Respondents. No. 03-71129. United States Court of Appeals, Ninth Circuit. December 5, 2005. Jonathan D. Montag, Esq., Law Offices of Jonathan D. Montag the Chamber Building, San Diego, CA, for petitioners. Regional Counsel, Western Region Immigration & Naturalization Service, Laguna Niguel, CA, Ronald E. Lefevre, Chief Legal Officer, Office of the District Counsel Department of Homeland Security, San Francisco, CA, William Campbell Erb, Jr., Attorney, Mark C. Walters, Esq., Frances M. McLaughlin, DOJ-U.S. Department of Justice Civil Div./Office of Immigration Lit., Washington, DC, for respondents. Before REINHARDT, TASHIMA, and WARDLAW, Circuit Judges. ORDER 1 The panel has voted to deny the petition for panel rehearing and petition for rehearing en banc. 2 The full court was advised of the petition for rehearing en banc. A 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 reconsideration.…

*1223 ORDER

The panel has voted to deny the petition for panel rehearing and petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A 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 reconsideration. FED. R. APP. P. 35.

The petition for rehearing en banc is DENIED.

dissenting from denial of rehearing en banc:

This case presents a question of exceptional importance with profound implications for our nation’s immigration laws. The panel permits an applicant to claim asylum based on the harms suffered by her child. See Tchoukhrova v. Gonzales, 404 F.3d 1181, 1190 (9th Cir.2005) (“[T]he harms suffered by a disabled child [may] be taken into account when determining whether to grant his parent’s asylum application.”). By allowing the harms suffered by a child to be imputed to the parent, the panel in effect creates a reverse derivative asylum claim — something expressly barred by 8 C.F.R. § 207.7 (b)(6), which provides that “[t]he following relatives of refugees are ineligible for accompanying or following-to-join benefits ... [a] parent, sister, brother, grandparent, grandchild, nephew, niece,- uncle, aunt, cousin or in-law.” Id. (emphasis added).

This exotic reading of the immigration statute was never discussed by the IJ, the BIA or even the parties — rather, it is something the panel comes up with on its own. Whatever the merits of such an approach, the panel concedes that neither the IJ nor the BIA “discuss[ed] the question expressly.”…