Planes v. Holder

(C.D.Cаl. Co., F.Supp.2d 766 Boeing that created Court 2006). the district court ordinary Schijndel, of ad- practice Van to our exception we before issues case on non conve dressing jurisdictional dismissed the forum claim, and it did of a the merits reversed reach Id. at 768. We grounds. niens on a ruling in the context specifically unpublished disposition, in an the dismissal non conveniens. assertion party’s again remand the district court and on forum 1184. Sinochem, 549 U.S. non based on the dismissed the ease forum in exception identified for the The reason light in of “substan doctrine conveniens courts district is clear—neither Sinochem Id. at changed circumstances.” tially when we of a case reach the merits nor we 769(“The concludes that the Ninth Court conveniens, non issues of decide forum in only that the Court erred held jurisdic- conduct the thus we need not analy manner in which it conducted its matter. preliminary analysis as tional sis, preclude did not intend but rehearing en from denial The dissent from further consideration of “cherry pick” that we also claims banc affirmed light ruling.”). of its We ignore the language from Sinochem dismissаl. the second particular, that: “In explanation Court’s faithfully panel opinion applies is- [jurisdictional need not resolve court opinion Sinochem Supreme Court’s event, that, if it determines sues] court’s non conve- verse the district forum suit- the more plainly tribunal foreign on the record before niens decision based the case.” the merits of arbiter of able “boot-strap” court. There was no This properly and our “overreach” why the explains in Sinochem not to rehear this en banc. decided jurisdiction court nеed not address district non conveniens it rules on forum address, motion, much less not but does dictate, proceed review must how court makes this election. a district

after Marinduque See, Gov’t e.g., Provincial Inc., Dome, 1087- Placer PLANES, Angelo Samonte Michael unan- some of the (noting Petitioner, appellate questions about swered court raised to state potential remands Attorney Jr., Eric H. HOLDER conveniens non by Sinochem’s forum General, Respondent. silent on how holding). Sinochem when a dis- proceed is to appellate сourt No. 07-70730. jurisdiction- address declines to trict court Appeals, Court of United States issues, non conve- errs al but forum Ninth Circuit. analysis. niens asser- contrary to the dissent’s Finally, 5, 2012. June trap Occi- tions, does panel opinion Martinez, Esquire, Law Of- Ines Elsa opinion court. Our in federal dental PLC, Martinez, Angeles, Los fices of Elsa renewing its from preclude Occidental CA, for Petitioner. motion should non conveniens forum Director, Bernal, Assistant David V. that Amazon Watch court rule district Counsel, Maride, Litigation Robert Senior under its claims standing to assert lacks Murciа, Oil, Department of Jus- See, Schijndel Liza e.g., Van California’s UCL. 1034 Ice, Servs., 324, (2d DC,

tice, Washington, 511 Chief Counsel F.3d 331-32 Cir. 2007); Department Montenegro Ashcroft, Office of the Chief Counsel of v. 355 F.3d (7th Cir.2004) CA, curiam); Francisco, 1035, Security, (per Homeland San INS, (5th 994, Respondent. Moosa v. F.3d Cir.1999); INS, see also Griffiths (1st Cir.2001). 45, F.3d 50-51 PREGERSON, recently, HARRY Tenth ex Before: Most Circuit CALLAHAN, plained M. and in no terms CONSUELO uncertain that Con IKUTA, Judges. gress SANDRA defined S. Circuit “conviction” 1101(a)(48)(A) § “specifically to supplant Order; IKUTA; by Judge Concurrence prior interpretation required by Judge Dissent REINHARDT. deportation wait until direct review) (though never collateral ORDER the conviction was exhausted or waived.” deny The has voted to Petitioner’s Waugh, (quoting 642 F.3d at 1284 United Rehearing Petition En for Panel Banc. Adame-Orozco, States v. F.3d Judges and have Callahan Ikuta voted to — (10th denied, Cir.), U.S.-, cert. deny petition. Judge Preger- the en banc (2010)) (inter- 178 L.Ed.2d 238 grant son en peti- has voted banc omitted). nal quotation marks “From tion. this,” concluded, the Tenth Circuit “it fol- judge A this court lawfully called this case lows that an alien is as deportable taken, to be en A vote guilt reheard banc. soon as a formal judgment is en- majority and a judges the activе of the tered a trial (quoting court.” Adame-Orozco, 653) (internal rehearing did not vote for a en banc. 607 F.3d 35(f). R.App. quotation omitted); Fed. marks see also United Saenz-Gomez, States v. 472 F.3d rehearing en banc is (10th Cir.2007) (rejecting argument therefore DENIED. that Congress intended 1101(a)(48)(A) §in require “conviction” IKUTA, Judge, whom Circuit or O’SCANNLAIN, CALLAHAN, appeals, exhaustion waiver of in- BEA, relying stead on literal join, Circuit Judges, concurring in the filing hold that the rehearing judgment denial of of a written en banc: against petitioner constituted a “con- from of rehearing dissent the denial statute). viction” for en neglects point: Every banc a salient given circuit that Other circuits opinion reasoned have reached similar con- Puello, on the In interpretation “conviction” in clusions. the Second Circuit 1101(a)(48)(A) § did, however, U.S.C. has reached stated: “IIRIRA eliminate same conclusion as the panel appeals that all direct namely, “[t]he term ‘conviction’ or exhausted waived before conviction is means, alien, respect to an a formal final considered under the statute.” 511 guilt the alien entered directly 332. This conclusion is on court,” regardless point panel’s and identical to the conclu- waived. sion here. Two subsequent unpublished U.S.C. 1101(a)(48)(A); Waugh Holder, conclusion,1 opinions see have reiterated this Cir.2011); opinion Puel- no Second Circuit has disa- lo v. Citizenship Immigra- greed. Bureau & (2d order) See (summary Ramirez n. 1 statutory language preted ‍‌​‌‌‌‌​‌​​‌‌​‌​​‌​‌​‌‌​​‌‌‌​​‌​‌​‌‌‌​​‌​‌‌‌‌‌‌​​‍stat- same Montenegro, Seventh panel interpreted here. As the

ed: held, unanimously the same words IIRIRA, the enactment Before have the same mean in the same statute deporta- that a required Supremе Court regardless of the context. See Leocal ing, aon conviction proceeding be based tion 1, 8, 125 Ashcroft, U.S. 12 n. S.Ct. v. ‘finality,’ which we sufficient that had (2004). 377, 160 L.Ed.2d the alien no to mean that interpreted any persua- dissent offer Nor appeal pending. longer had however, justification rejecting the reasoned sive IIRIRA, an alien as treats of our sister circuits. The dis- decisions enters a once a court ‘convicted’ formal on BIA primarily sent relies decision eliminated guilt. IIRIRA judgment of Congress the cur- issued before enacted for a сonvic- finality requirement 1101(a)(48)(A), § in version of which therefore, rent IIRIRA, .... Under that conviction stated April in 1996 of Montenegro’s conviction “until final review of the rendered him re- aggravated felony an conviction has been exhausted waived.” movable. Ozkok, 546, I. & N. Dec. See Montenegro, (empha- at 1037-38 355 F.3d (B.I.A.1988). According n. 7 to omitted). added) (internal citations sis dissent, the panel should have followed Moosa, the Fifth considered any express because the lack of to retain Congress intended legislative history in the that that the BIA had “finality requirement” Congress rejected finality require- “con- on the definition of “superimposed” means that the should read it ment Moosa, 1000, viction,” at into the amended statute. Dissental at requirement concluded that on 1039-40. The dissent’s reliance Con- statutory by the new had been eliminated silence to construe a statute is gressional at 1001-02 language of IIRIRA. clearly wrong: plain language when (quoting current version clear, improper it is look the statute is to 1101(a)(48)(A) concluding that meanings legislative within the for hidden finality requirement). history, much less within the silences of that singlе to cite a circuit court history. Cmty. Unable legislative See adopted interpretation, Reid, their proposed has v. Creative Non-Violence 2166, argues that we should the dissent instead L.Ed.2d reasoning ignore interpretation and (rejecting argument Con- statutory reject judicial expressly our sister circuits because gress’s failure in interpretations in those cases arose of an earlier version of a construction issue at n. 4. meant that Congress contexts. Dissental statute intended different circuits, however, in the incorporate interpretation Each of inter- our sister (internal omitted) ("This suggested original) (quoting citation court 'conviction,' Fuello, 332)); Alejo Mukasey, added to the laws 511 F.3d 1996, requirement that all 'eliminate[d] (2d Cir.2008) (sum- appeals be or waived before order) ("As mary explained, we have is considered final under the a conviction Congress 'eliminate[d] petition with- Ramirez’s statute.' Because appeals be exhausted or waived all direct ” under more favorable defi- out merit even (al- is considered final.' we applied nition of conviction Fuello, (quoting original) 511 F.3d teration con- here decide whether Fuello's need not 332)). (alteration in struction should followed.” statute, noting statutory amended “[o]rdi issues construction and must narily, just reject Congress’ silence is that —si administrative which constructions Airlines, Inc. (quoting lence” Alaska contrary congressional to clear in- Brock, 686, 107 tent.”); Federiso (1987)) (internal (9th Cir.2010) quotation L.Ed.2d 661 (“Only if we determine omitted)). marks that a statute is ambiguous do we defer interpretation. may the [BIA’s] We Moreover, might the extent accept interpretation clearly cоntrary to say, consider what chose not text.”) plain meaning of a statute’s it would recognize when Con- (internal omitted). citations Because the gress “adopted almost verbatim the defini- (a)(48)(A) plain §of language unam- is tion set out the in BIA Matter Oz- biguous, panel the was correct to address kok,” 1039, Congress dissental at chose not this in issue the first instance.2 very to include the in on Ozkok Similarly, which the dissent relies. Con- sum, In the decided the be- gress also decided not include Ozkok’s fore it in a manner consistent the with adjudication conclusion that deferred plain language the statute and all counts as a “conviction” if is not other circuits that have ruled on the issue. subject proceedings. or other panel’s approach and conclusion were I. light See 19 & N. at 552. Dec. In correct, as was the decision of the court silences, of these it most is reasonable to not to the rehear case en banc. infer that intentionally omitted REINHARDT, any Judge, finality requirement from its definition Judge whom Chief KOZINSKI and of “conviction.” And if even it was Con- Judges PREGERSON, THOMAS, gress’s to import the Ozkok WARDLAW, FLETCHER, W. statute, and PAEZ into the therе is a join, dissenting from straightforward the denial of remedy: Congress may rehearing en banc: plain revise the the statute. in three-judge panel this

Finally, case decid- dissent is in as- mistaken a question ed serting exceptional that the panel by failing importance: erred immigrants remand to interpreta- country, to obtain its our lawful 1101(a)(48)(A) unlawful, §of can be deported immediately first. It is well court, BIA, that ‍‌​‌‌‌‌​‌​​‌‌​‌​​‌​‌​‌‌​​‌‌‌​​‌​‌​‌‌‌​​‌​‌‌‌‌‌‌​​‍after a established not trial court a judgment enters responsible statutory case, for interpretation. guilt against them in a criminal be- Chevron, U.S.A., See they Inc. v. fore opportunity Natural Res. have had the to ob- Inc., Council, appellate n. tain review of their convictions. Def. 81 L.Ed.2d 694 Reasoning, inexplicably, Illegal that (“The judiciary is authority the final Immigration on Reform and Immigrant Re- us, 2. The legal dissent’s claim decided issue before we concluded this case on a basis not petition- raised determining BIA did not err in that Planes’s er is baseless. Planes stated the issue before 2004 conviction was a "conviction" for immi- opening the court in his brief: gration purposes though, whether "the even as the BIA nоted, determining petitioner's BIA erred in proceedings fed- pending. further were § eral 18 qualified U.S.C. agreed offense as a We with the BIA's conclusion immigration (which 'conviction' proceedings be- these also included fur- yet cause he had not right appeal) received sentence on ther did not relate to whether crime, require- his thus it did meet not Planes stood convicted crime. In re Planes, ments (B.I.A. under INA 2007 WL 416855 Jan. 101(a)(48)(A).” 2007) § response In (unpublished). to the (“IIRIRA”), appellate enacting able to obtain counsel. addi- sponsibility Act tion, their evеn if convictions subse- of conviction 8 U.S.C. the definition overturned, they quently ineligible remain 1101(a)(48)(A), permis- country reenter the without deportations pending rule which barred General, Attorney sion of review, panel held that such likely recourse available to them is most now lawful. It practice unreasonable request discretionary to the BIA for the Board of did fact that despite case, opening of their the de- (“BIA”) did not men- Immigration Appeals nial powerless of which courts are opinion, in its tion or consider the issue immigrants deported review.1 As to it either parties did brief before their direct have been com- court, and, the BIA or before pleted, the as a result of the decision ex- important, Congress clearly most review, may we decline to still enter a final long- pressed intent to them, deportation against regard- order of standing that a conviction is not final pendency appeal. less of the their immi- immigration purposes until the order, Upon entry an immi- of such those grant has or waived his direct grants stripped legal would be whatever right. they previously enjoyed, status be unable countless immi- consequence The is that to and left employment, obtain lawful be resi- including lawful grants, permanent only a the BIA for request with to discre- with citizen children and young dents U.S. tionary reopening should their convictions States, strong ties to the United other expiration be overturned after the deportation to should a subject immediate 90-day period timely file a which to guilt enter a trial ever reopen. motion to Should the BIA refuse deprives a rule immi- against them. Such discretion, to exercisе its unreviewable to grants deported prior who are they deportation will face an order of rights when process of their due Department review can be enforced whenever the (“DHS”) pursuing appeal, including consulting an to Security of Homeland decides counsel, they deport them.2 with their should even be actually if BIA which return has been accom- 1. Even exercises its discretion order, already deportation plished.” an de- reverses immigrant may returning ported have trouble Recently, the United States. the U.S. De- tо appeal may 2. Even a an not be reversal of that, despite partment of Justice admitted reopen persuade the to sufficient to BIA gov- misleading representations by made deportation or the DHS to cancel a or- case Court in Nken v. ernment See, Steven, e.g., WL der. Matter not, recently, a written there until (BIA 2011) (denying motion policy to facilitate the return of aliens who open after be- conviction had been vacated pending judicial review of had been removed agency not determine frоm cause could April See Letter of BIA orders. vacating convic- the record the reason for General, Deputy Solicitor Nken v. Hold- from er, tion, although the the mo- record contained 1749, 173 L.Ed.2d 129 08-681), attorney explaining filed the criminal (2009) (No. http:// available so); seeking to do Matter Este- reasons online.wsj.com/public/resources/documents/ vez, (BIA 2011) (denying 2011 WL 3889669 government plain- noted that return.PDF. because, although reopen motion convic- in a of Information Act case in tiffs Freedom vacated, tion was the reason could not declarations district court had submitted record); Matter discerned from Gonza- showing they signifi- had "encountered (BIA 2010) lez-Ramirez, 2010 WL 3355098 returning” impediments and that cant (same); Spencer, WL questions these declarations "have raised (BIA 2009) (same). consistency promptness and about the (internal requires, cy not given”) This is what itself has not quotation omitted); what intended. The marks citations Azanor v. holding only arrived at its disregarding (9th Ashcroft, 364 F.3d Cir Congress’ asserting intent and .2004)(“[W]e grant must decide whether to clear, language of the statute is all while deny for review based on (in fact, not ignoring mentioning) even reasoning the Board’s rather than our own fact that this same long (em record.”) independent analysis of the interpreted to include the rule. added); phasis Ashcroft, Andia v. 359 F.3d all egregious decision is the more because curiam) (“In (per panel expressly beyond reached reviewing the decision of the we con- power adopt providing a rule grounds sider upon by relied such treatment immi- unconscionable added); agency.”) (emphasis Navas v. our grants country, including longtime INS, (9th Cir.2000) 658 n. 16 permanent lawful residеnts citi- (“[T]his court cannot affirm the on a BIA zen children. Because this ground upon rely.”); which it did Mar- exceptional importance that was errone- INS, tinez-Zelaya ously decided, wrongly reached and I (9th Cir.1988) (“[0]ur review is confined to regret strongly our failure rehear the upon BIA’s decision and the bases case en banc and must respectfully dissent. relied.”). which Dispositively, time since the (Or I. The BIA Did Not Decide Even enactment of the IIRIRA that BIA the Mention), the Parties Did Not actually considered the question of the fi- Brief, the of Elimination the Finali- rule, nality it did en banc a two ty case Rule years it appeal decided the in the after panel The three-judge overstepped ‍‌​‌‌‌‌​‌​​‌‌​‌​​‌​‌​‌‌​​‌‌‌​​‌​‌​‌‌‌​​‌​‌‌‌‌‌‌​​‍its case, now before us. In that Mat- authority and decided the petition for re Abreu, ter ultimately the BIA deter- of ground view on upon a by relied the necessary mined that it was not to rule on Nowhere, BIA. passing, not even in is the (BIA the issue. I. N.& Dec. finality rule by ever mentioned agency. the 2009), by Holder, vacated Abreu v. Nor was the issue briefed before the (2d Cir.2010). Nevertheless, panel, by or the party.3 either In ignoring seven of out fоurteen members of the en facts, these ignored the also the banc BIA court would explicitly held clear mandate from the enacting that in Congress IIRIRA did not and our ease that we “must judge the finality eliminate the for ap- rule direct propriety [agency of solely by action] 802-03, 811-21, peals right, as of id. five grounds by agency.” invoked SEC recognized other members the argument Chenery Corp., one, as a “forceful” id. at two 91 L.Ed. (emphasis add ed); members would have finality see also held that the Hernandez-Cruz (not rule was for appeals, 1109-10 such id. at ing then, that “supply we cannot 803-11. reasoned Since the BIA has contin- basis for the agency’s agen- action that the ued to apply finality rule to direct 3. The issue before the notwithstanding BIA was different: the affirmance of the convic- following an affirmance of con- appeal pending tion a direct still remained appeal viction on direct and an Ameline Implicit further review of the sentence. resentencing, mand appeal for the direct of parties’ positions assumption both conviction had been еxhausted and finality unchanged. rule remained remained, proceeding collateral or whether de- a sufficient not attain deci- unpublished right of as appeals purposes immigration for of gree [be- “conviction that a sions, recognizing convic- direct until purposes immigration final comes] or waived.” exhausted has been tion convic- his appeal failed [alien] when enacting the Congress, in 7.n. & 552 lapse, period appeal tion, allowed in 8 U.S.C. of conviction definition or appeal, right his waived verbatim 1101(а)(48)(A),adopted almost convic- of his appeal exhausted in Matter BIA by the out set WL McLarty, Matter tion.” as “a formal Ozkok, defining a conviction 2011); also Matter (BIA see by a entered the alien guilt of 2012); judgment Mat- (BIA Evans, WL legisla- or its in IIRIRA Nothing court.” Guevara-Medina, WL ter of intend- Congress history suggests tive 2011). (BIA guilt” “formal phrase ed the Fi- Eliminate Not Did how differently IIRIRA from II. interpreted to be nality Rule to the prior interpreted always Certainly, noth- the statute. enactment of overstep its au- only did the Not intended suggests ing not relied ground on a rule thority and longstanding eliminatе wrong on BIA; it is also upon ap- of direct for exhaustion provided by the this decision Up until merits.4 be- a conviction right as of peals a convic- long been rule had panel, purposes. immigration final for came purposes immigration final is not the defi- verbatim fact, adopting almost defendant until Ozkok, Congress ex- from nition right. See his waived long- pressed 551- N. Dec. I. &19 Matter of finality for direct Ozkok, standing 1988). In Matter (BIA n. 7 the words right. “When existed a conviction held gov- statute in a later used the Court has ad- the court “if matter, is re- subject the same erning or has guilty immigrant] judicated [the of the Court’s and Congress of spectful stat- guilt,” of judgment formal a entered same the the words give processes a own established well is “[i]t ing which, in explained as adjudications, “join the purports to Although panel the deferred 1039-41, intent agree was the all Fifth, Second, pages of the opinions fra well-reasoned did not unquestionably Congress. Moosa Circuits,” of of Seventh, each Tenth and right. In the appeals as of deal distinguishable, by the cited cases Circuit, Ashcroft, 355 Montenegro v. Seventh Circuit by the Tenth decided the one only and curiam), in (7th (per 1035 F.3d not enti- petitioner a hold purports to to the certiorari petition for a right prior to volved of a tled to conviction, aon attack a collateral and regarding deported. The being right appeal as of is a direct which of Citizenship neither v. Bureau in Fuello finality rule of finality of a affected (2d of which neither Services, F.3d 324 511 Immigration & even un purposes immigration for dicta, recognized Cir.2007), as later Finally, Tenth case law. pre-IIRIRA See, der v. e.g., Ramirez itself. Circuit the Second Saenz-Gоmez, case, v. States United Cir.2011). Circuit (2d In Holder, Cir.2007), (10th was decided (2d F.3d Fed.Appx. 59 fact, v. in Abreu reentry subsequent criminal Puello, of a context after Cir.2010), years two decided proceeding not in an proceeding, case to remanded Second deported can an alien deciding whether question in the very of this for determination a enters trial immediately after the Moosa Circuit in Fifth The first instance. him, of whether regardless against Cir.1999), held INS, pending. appeal is a direct as to finality had been rule that the meaning in specific Congress’ the absence of di finality intent retain the contrary.” Tay rection to the Williams category appeals. for the latter of lor, S.Ct. panel completely disregarded this (2000); L.Ed.2d 435 see also Alaska It history. on the supposed “plain relied Gov’t, Village Native Tribal of Venetie statute,” of language without acknowl- 520, 530-31, edging that this same language long had (1998) (finding Congress L.Ed.2d interpreted for immigra- requirements finding incorporated finality include the rule. It a “dependent community” Indian set out in ignored Congress clear intent of previous text case law where the tаking from Matter Ozkok subsequent virtually statute “is taken ver and codifying statutory it in the precedent batim” from Histori respect conviction with to cases includ- cal and Revision Notes the statute indi ing right ig- as of it—and codify precedent). cated an nored fact Congress, in that same contrast, IIRIRA, Congress did statute, finality requirement omitted the finality requirement eliminate the con- category cases, different deferred as to victions which there is no entitlement adjudications. also ignored the to an appeal. immediate direct Such cоn- that, fact when the the agency victions are known as adjudica- deferred charged statute, interpreting con- tions. The BIA in Matter Ozkok held banc, sidered the matter en it held that it that, for immigration purposes, deferred issue, need although not reach the seven adjudication would be considered a convic- out of its fourteen members would have met, tion if three elements were the third held intended to finality which consisted of require- Abreu, finality rule, 24 I. & ment.5 Congress adopted, again almost 802-03, 811-21, N. Dec. at five other mem- verbatim, that definition frоm Matter of recognized bers argument aas “force- Ozkok, except that it omitted the third one, ful” id. at two members element, thereby eliminating held, out of fourteen would have as the adjudications, ‍‌​‌‌‌‌​‌​​‌‌​‌​​‌​‌​‌‌​​‌‌‌​​‌​‌​‌‌‌​​‌​‌‌‌‌‌‌​​‍as to deferred three-judge panel did that Congress provided and thus that a conviction exists eliminated the rule for direct ap- for immigration purposes is a once there peals right, id. at I 803-11. believe finding guilt and imposition of pun- that the majority the BIA it right, ishment such proceedings. See 8 U.S.C. hold, and that it would if to allowed decide 1101(a)(48)(A). The eliminatiоn of the the case finality rule still finality provision for adjudica- deferred applies appeals direct to as of right. tions, along with the failure to make change in least, At language regarding very court, this like the appeals right, as of further Circuit, demonstrates Second should returned the ...; (3) Matter imposed defined a liberty conviction in judg- Ozkok be adjudication deferred context as follows: adjudication guilt may ment or be en- adjudication guilt "Where has been with- person tered if the violates the terms of his held,” if probation comрly or fails to with the re- (1) judge jury or has found the alien order, quirements of the court's without guilty or plea he has guilty entered availability proceedings regard- of further nolo contendere or has admitted sufficient ing person's guilt or innocence of the finding facts to guilty; warrant original charge. judge has punish- ordered some form 19 1. Dec. &N. at 551-52. ment, penalty, or person's restraint on the in a it could decide BIA so that case to the important issue opinion the

published MINING, MONARCH BULLION already asked it has Circuit Second Plaintiff-Appellant, INC., (see Abreu v. Fed.Aрpx. decide 59): fi applicability continued MINES, right, appeals nality rule BARRICK GOLDSTRIKE recog overwhelmingly Defendant-Appellee. BIA has INC., which the opinions in a manner unpublished nized in No. 11-15479. three-judge to what the directly contrary of Appeals, United States bypassing Rather than here. panel holds Ninth Circuit. deciding question our the BIA now issue must selves, if we think that the 13, 2012. June decided, afforded we should have Brust, Robison, Belaustegui, Clayton in a P. formal opportunity do BIA the NV, Low, Reno, plaintiff- Sharp & opinion of Board. published appellant. Wikstrom, Michael P. Pet- Francis M. authority sum, its exceeded Mark, Parsons, rogeorge, Brandon J. for review on deciding UT; Latimer, City, & Salt Lake Behle that IIRIRA ground Latim- Kealy, Parsons Behle & Michael R. That is right. Reno, NV, defendants-appel- er, for the decided; instead, the the BIA ‍‌​‌‌‌‌​‌​​‌‌​‌​​‌​‌​‌‌​​‌‌‌​​‌​‌​‌‌‌​​‌​‌‌‌‌‌‌​​‍not what lees. pro- pending characterized the simply pro- case as “collateral in Planes’

ceedings affecting only his sentence.

ceedings” mer- wrong case on the got also THOMAS, M. R. Before: SIDNEY verbatim the defi- By adopting almost its. McKEOWN, and MARGARET from nition of conviction FLETCHER, A. WILLIAM Congress expressed Judges. regret- It is rule. longstanding rehear our court refused

table that ORDER the over- en banc to correct this case holding by the misguided reaching certify to the Nevada respectfully We hope can three-judge panel. One questions set Supreme Court error. not make same others will order, pursuant III forth Section Procedure 5. Appellate Rule of to Nevada I dissent. of an will be determinative The answer court, and there pending before this in the controlling precedent clearly no Supreme Court. Nevada decisions Background I. Monarch Bullion Plaintiff-Appellant (“Bullion”) alleges that Bar- Mining, Inc. (“Barrick”) Mines, Inc. rick Goldstrike payments royalty mineral Bullion owes

Case Details

Case Name: Planes v. Holder

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 5, 2012

Citation: 686 F.3d 1033

Docket Number: 07-70730

Court Abbreviation: 9th Cir.