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The 9th U.S. Circuit Court of Appeals refused Thursday to order en banc review of a ruling that 12 dissenters said “will all but eliminate habeas review in immigration cases.” The dissenters fell just shy: It would have taken a majority of the court’s active judges to grant rehearing. The order came in the case of Jose Nunes, a Portuguese man facing deportation because of a 1998 conviction for aggravated burglary in San Jose. He was ordered to serve five years and then be deported. He is being held in San Diego. In a series of appeals following his conviction, Nunes argued that first-degree burglary is not a violent felony so he should not be deported. Nunes asked the district court for a habeas petition, but judges rejected the argument as groundless. Nunes then appealed the denial of his habeas petition to the 9th Circuit, arguing that the district court had erred. But the 9th Circuit’s ruling dismissed that argument. “The district court did not abuse its discretion when it denied Nunes’ motion for reconsideration. Nunes failed to introduce new evidence, show a change in controlling law, or show that the district court committed clear error when it dismissed his habeas petition,” Judge Ronald Leighton wrote in November in denying the appeal. But Judge A. Wallace Tashima, in an opinion signed by 11 other judges, said Leighton’s opinion was “wrong and contrary to binding precedent” because it essentially applied res judicata principles to a habeas petition. “Despite the Supreme Court’s recognition of the importance of preserving habeas relief,” Tashima wrote, “the panel’s decision will largely foreclose habeas review” in immigration cases. Nunes’ San Diego-based attorney, Sylvia Baiz, said Thursday’s decision will make it increasingly difficult for immigrants and refugees to seek legal relief. She is trying to keep Nunes in the country while considering an appeal to the U.S. Supreme Court with Washington, D.C.’s American Immigration Lawyers Association. “It’s already very difficult to defend yourself from the INS [even] if you have a good attorney,” Baiz said, adding that the decision essentially means immigrants can only appeal their cases in one court. “I’m really upset,” Baiz said. “My client is a good person who happens to have been born on the other side of the world and had problems growing up. [The judges] are tying my hands as an attorney and my ability to defend the rights of immigrants.” Baiz added that the ruling will overturn “hundreds of years” of immigration law, especially in habeas cases. Leighton, a district judge in western Washington, had reviewed the case with Judges Pamela Ann Rymer and Richard Tallman. Joining Tashima (who recently took senior status) in dissenting from the order denying en banc review were Judges Harry Pregerson, Stephen Reinhardt, Michael Daly Hawkins, Sidney Thomas, M. Margaret McKeown, Kim McLane Wardlaw, William Fletcher, Raymond Fisher, Ronald Gould, Richard Paez and Marsha Berzon. In a separate dissent, Reinhardt said the U.S. Supreme Court should take up the issue. He also predicted that his colleagues would soon recognize that they should have heard the case and hinted at a glitch in the en banc call. “My impression is that in this case, notwithstanding the recorded vote (under our rules a failure to vote counts as a negative vote), a majority of the judges on the circuit may not agree with, or may seriously question, the panel’s opinion,” he said.

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