Jameleddin Alsamhouri, Petitioner, v. Alberto R. Gonzales, Attorney General of the United States, Respondent, 471 F.3d 209 (1st Cir. 2006)

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U.S. Court of Appeals for the First Circuit - 471 F.3d 209 (1st Cir. 2006) December 7, 2006

Jose Espinosa, Jamaica Plain, MA, for Petitioner.

Michael J. Sullivan, U.S. Attorney's Office, John Joseph Moakley Courthouse, Neil Cashman, Immigration and Naturalization Service, JFK Federal Building Government Center, Nora Livers, Office of Immigration Litigation, William C. Erb, Office of Immigration Litigation Civil Division, Genevieve Holm, Dept. of Justice Office of Immigration Litigation, Washington, DC, for Respondent.

Before BOUDIN, Chief Judge, LYNCH and LIPEZ, Circuit Judges.


The panel opinion in this case was issued on August 14, 2006.

The petitioner, now in custody, has moved for a stay of removal, to expedite consideration, and to file a supplemental memorandum in support of the stay motion. In light of the nature of the arguments presented, the court treats the petitioner's papers as also presenting issues of whether mandate should be recalled, the panel opinion be withdrawn and the matter be reheard of whether there is jurisdiction over the petition for review of the denial of a continuance.

Recall of mandate is not to be done except in extraordinary circumstances. Calderon v. Thompson, 523 U.S. 538, 549, 118 S. Ct. 1489, 140 L. Ed. 2d 728 (1998). The rule is meant to protect interests in repose. Id. Here, those interests are minimal. The decision of this court, less than four months old, is the subject of a pending petition for certiorari and so is not final.

Petitioner's stay papers have presented serious arguments about the scope of the jurisdictional bar in 8 U.S.C. § 1252(a) (2) (B) (ii), relying upon arguments raised in his petition for certiorari. No such arguments were presented in this court when it heard this case on the merits, nor did petitioner seek panel or en banc rehearing.

In the orderly administration of justice this court should consider the newly presented arguments in the first instance. Accordingly, we sua sponte vacate mandate issued October 5, 2006, withdraw the panel opinion issued August 14, 2006, vacate the judgment entered August 14, 2006, and grant rehearing on the jurisdictional issue.

We shall consider the petitioner's present filings to constitute his brief on rehearing. The respondent shall file a responsive brief on or before December 21, 2006. Petitioner may file a reply brief on or before January 4, 2007.

The motion for stay of deportation is allowed until further order of this court.

So ordered.