332 F.3d 1205: Virginia Dumlao Taniguchi, Petitioner-appellant, v. John Paul Schultz; Kathleen Hawy Sawyer; Doris Meissner; John Ashcroft, Attorney General, Respondents-appellees.virginia Agustin Taniguchi, Petitioner, v. John Ashcroft, Attorney General, Respondent
United States Court of Appeals, Ninth Circuit. - 332 F.3d 1205
Filed June 18, 2003
Virginia Dumlao Taniguchi, Marysville, CA, pro se.
Jocelyn Burton, Robert Yeargin, USSF — Office of the U.S. Attorney, San Francisco, CA, Linda S. Wernery, DOJ — U.S. Department of Justice, Civil Div./Office of Immigration Lit., for Respondent-Appellee.
Before RONEY,* HUG, THOMAS, Circuit Judges.
Order; Dissent by Judge PREGERSON.
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.
The majority assumes in its holding, and I agree, that § 212(h) applies to aliens both within the United States and aliens seeking admission into the United States
By upholding § 212(h) on the basis that Congress could have believed that LPRs were more likely to be recidivists than non-LPRs because LPRs have more substantial family ties to the United States, the panel contravenes our rule that courts examining equal protection challenges must be "careful not to attribute to the government purposes which it cannot reasonably be understood to have entertained."Wauchope v. United States Dept. of State, 985 F.2d 1407, 1415 (9th Cir.1993) (internal citations and brackets omitted). The plain language of § 212(h) illustrates that it is inconceivable that Congress barred LPRs from § 212(h) discretionary relief because Congress believed that LPRs were less deserving of relief because of their family ties to the United States; family ties are a statutory prerequisite for non-LPRs to obtain relief under § 212(h). Thus, Congress could not have believed that family connections rendered LPRs less worthy of relief because Congress explicitly conditioned eligibility under § 212(h) to non-LPRs who have substantial family ties to a United States citizen or LPR parent, spouse, or child.