Taniguchi

Order; Dissent by Judge PREGERSON.

ORDER

The panel has voted to deny the petition for panel rehearing. Judge Thomas has voted to reject the suggestion for rehearing en banc and Judges Roney and Hug have so recommended.

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 consideration. Fed. R.App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are denied.

dissenting from our court’s denial of rehearing en banc.

I respectfully dissent from the order denying rehearing en banc. It is a bedrock principle of our law “that all individuals in the United States — citizens and aliens alike — are protected by the Due Process Clause of the Constitution.” Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir.1994) (citing Mathews v. Diaz, 426 U.S. 67, 77 , 96 S.Ct. 1883 , 48 L.Ed.2d 478 (1976)). Furthermore, “[i]t is equally well established that the Due Process Clause incorporates the guarantees of equal protection.” Id. (citing Johnson v. Robison, 415 U.S. 361 , 364 n. 4, 94 S.Ct. 1160 , 39 L.Ed.2d 389 (1974)). In my view, INA § 212(h), 8 U.S.C. § 1182 (h), which denies discretionary relief from removal to Legal Permanent Residents (LPRs) convicted of an aggravated felony, but makes such relief available to illegal aliens (non-LPRs) who are convicted of an aggravated felony, violates the equal protection guarantees afforded all aliens under the Fifth Amendment. Not only does § 212(h) irrationally discriminate against LPRs, but the rationale the panel attributes to Congress to defend § 212(h) against an equal protection challenge is illogical and…