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Cabantac v. Holder

United States Court of Appeals, Ninth Circuit

August 23, 2012

Randy Penaranda CABANTAC, aka Randy Reyes, Petitioner,
v.
Eric H. HOLDER Jr., Attorney General, Respondent.

Argued and Submitted Aug. 9, 2011.

Amended Aug. 9, 2013.

Page 788

Kara L. Hartzler, Florence Immigrant and Refugee Rights Project, Florence, AZ; Kari Elisabeth Hong, Law Offices of Kari E. Hong, Oakland, CA, for Petitioner.

Linda Y. Cheng, Francis William Fraser, Gary J. Newkirk, Aaron R. Petty, United States Department of Justice, Civil Division/Office of Immigration Litigation, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A045-078-802.

Before: ALEX KOZINSKI, Chief Judge, DIARMUID F. O'SCANNLAIN, and CARLOS T. BEA, Circuit Judges.

ORDER

The opinion filed on August 23, 2012, and appearing at 693 F.3d 825, is amended as follows:

At slip opinion page 9632, 693 F.3d at 827, replace < Finally, it bears emphasizing that the amended abstract does not necessarily establish that Cabantac pleaded guilty only to the general state offense.> with < The amended abstract is not properly before this court because it was not part of the administrative record on which the order of removal is based. See 8 U.S.C. § 1252(b)(4)(A) (" [T]he court of appeals shall decide the petition only on the administrative record on which the order of removal is based." ). However, it bears emphasizing that even the amended abstract does not necessarily establish that Cabantac pleaded guilty only to the general state offense.>

With this amendment, the panel has unanimously voted to deny Petitioner's petition for rehearing and petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on en banc rehearing. A majority of the non-recused active judges did not vote in favor of rehearing en banc.

The petition for rehearing and the petition for rehearing en banc are DENIED. Judge Murguia's dissent from the denial of en banc rehearing is filed concurrently herewith.

Page 789

No further petitions shall be entertained.

MURGUIA, Circuit Judge, with whom PREGERSON, REINHARDT, WARDLAW, W. FLETCHER, PAEZ, CHRISTEN and HURWITZ, Circuit Judges, join, dissenting from the denial of rehearing en banc:

Immigration judges are often asked to determine whether a person has been previously convicted of a crime that fits into a certain category, e.g., a " controlled substance offense" or an " aggravated felony." [1] In turn, non-citizen criminal defendants contemplating a plea offer must predict how an immigration judge could later categorize the conviction. The impact of this categorization can be profound— in this case, it determines whether a 34-year-old lawful permanent resident who has lived in the United States since he was 17 will be deported to a country in which he has no family, or whether he will remain in this country with his father. Unfortunately, we have provided incoherent guidance to the immigration judges making these important decisions ...


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