Planes

The dissent from the denial of rehearing en banc neglects a salient point: Every circuit that has given a reasoned opinion on the interpretation of “conviction” in 8 U.S.C. § 1101 (a)(48)(A) has reached the same conclusion as the panel does here, namely, that “[t]he term ‘conviction’ means, with respect to an alien, a formal judgment of guilt of the alien entered by a court,” regardless whether appeals have been exhausted or waived. 8 U.S.C. § 1101 (a)(48)(A); see Waugh v. Holder, 642 F.3d 1279, 1284 (10th Cir.2011); Puello v. Bureau of Citizenship & Immigration Servs., 511 F.3d 324, 331-32 (2d Cir.2007); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir.2004) (per curiam); Moosa v. INS, 171 F.3d 994, 1009 (5th Cir.1999); see also Griffiths v. INS, 243 F.3d 45, 50-51 (1st Cir.2001).

Most recently, the Tenth Circuit explained in no uncertain terms that Congress defined “conviction” in § 1101(a)(48)(A) “specifically to supplant a prior BIA interpretation that had required deportation to wait until direct appellate review (though never collateral review) of the conviction was exhausted or waived.” Waugh, 642 F.3d at 1284 (quoting United States v. Adame-Orozco, 607 F.3d 647, 653…

The three-judge panel in this case decided a question of exceptional importance: whether immigrants in our country, lawful and unlawful, can be deported immediately after a trial court enters a judgment of guilt against them in a criminal case, before they have had the opportunity to obtain appellate review of their convictions. Reasoning, inexplicably, that the Illegal Immigration Reform and Immigrant Re *1037 sponsibility Act (“IIRIRA”), in enacting the definition of conviction in 8 U.S.C. § 1101 (a)(48)(A), eliminated the finality rule which barred deportations pending appellate review, the panel held that such an unreasonable practice is now lawful. It did so despite the fact that the Board of Immigration Appeals (“BIA”) did not mention or consider the issue in its opinion, that the parties did not brief it either before the BIA or before this court, and, most important, that Congress clearly expressed its intent to preserve the longstanding rule that a conviction is not final for immigration purposes until the immigrant has exhausted or waived his direct appeal as of right.

The consequence is that countless immigrants, including lawful permanent residents with young U.S.…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL ANGELO SAMONTE PLANES, 

Petitioner, No. 07-70730 v.  Agency No.

A037-329-028

ERIC H. HOLDER Jr., Attorney General, ORDER Respondent.  Filed June 5, 2012

Before: Harry Pregerson, Consuelo M. Callahan, and Sandra S. Ikuta, Circuit Judges.

Order; Concurrence by Judge Ikuta; Dissent by Judge O’Scannlain

ORDER

The panel has voted to deny Petitioner’s Petition for Panel Rehearing En Banc. Judges Callahan and Ikuta have voted to deny the en banc petition. Judge Pregerson has voted to grant the en banc petition.

A judge of this court called for this case to be reheard en banc. A vote was taken, and a majority of the active judges of the court did not vote for a rehearing en banc. Fed. R. App. 35(f).

The petition for rehearing en banc is therefore DENIED.

6275 6276 PLANES v. HOLDER IKUTA, Circuit Judge, with whom O’SCANNLAIN, CALLAHAN, and BEA, Circuit Judges, join, concurring in the denial of rehearing en banc:

The dissent from the denial of rehearing en banc neglects a salient point: Every circuit that has given a…