(CN) – The 9th Circuit will not convene an 11-judge panel to review the deportation of a Filipino man with a criminal record, though several judges say the current decision “inexplicably” ignores the fact that the immigrant is still appealing his sentence.
“The consequence is that countless immigrants, including lawful permanent residents with young U.S. citizen children and other strong ties to the United States, are subject to immediate deportation should a trial court ever enter a judgment of guilt against them,” according to the dissent authored by Judge Stephen Reinhardt. “Such a rule deprives immigrants who are deported prior to appellate review of their due process rights when pursuing an appeal, including consulting with their counsel, should they even be able to obtain appellate counsel.”
Chief Judge Alex Kozinski and five other judges joined the dissent against their colleagues who voted against rehearing Michael Angelo Planes claims against Attorney General Eric Holder.
An immigration judge ruled the United States could remove the Philippines-born Planes, a lawful permanent resident who entered the country in 1981 and had been convicted of two “crimes involving moral turpitude” by 2005.
Planes took his case to the 9th Circuit after the Board of Immigration Appeals rejected his claims that the second conviction was not yet final because his sentence was still under appeal.
But a Pasadena, Calif.-based three-judge panel rejected the appeal in July 2011.
On Tuesday, the court voted 4-7 against rehearing.
Writing for the majority, Judge Sandra Ikuta said, “the panel decided the issue before it in a manner consistent with the plain language of the statute and with all other circuits that have ruled on the issue.”
But the dissent worried over far-reaching consequences for immigrants convicted of crimes.
“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,” Reinhardt wrote. “Reasoning, inexplicably, that the Illegal Immigration Reform and Immigrant Responsibility 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.”
Reinhardt added that even if immigrants’ convictions “are subsequently overturned, they remain ineligible to reenter the country without the permission of the Attorney General, and the only recourse available to them is most likely a request to the BIA for discretionary reopening of their immigration case, the denial of which the courts are powerless to review.” (Emphasis in original.)