Food Fight at the Fifth: Rodriguez v. Garland (9-8)(Niz-Chavez; Pereira)

Rodriguez v. Garland

"The petition for panel rehearing is DENIED. Additionally, the court having been polled at the request of one of the members of the court and a majority of the judges who are in active service not having voted in favor, rehearing en banc is DENIED. In the en banc poll, eight judges voted in favor of rehearing (Chief Judge Richman and Judges Jones, Smith, Elrod, Haynes, Ho, Oldham, and Wilson), and nine judges voted against rehearing (Judges Stewart, Dennis, Southwick, Graves, Higginson, Costa, Willett, Duncan, and Engelhardt).

Stuart Kyle Duncan, Circuit Judge, joined by Higginbotham, Senior Circuit Judge, and Southwick, Higginson, and Willett, Circuit Judges, concurring in denial of en banc rehearing: The court has declined to rehear this case en banc. That’s the right call. The panel’s decision was compelled by Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), and has since been joined by the Ninth Circuit. See Singh v. Garland, 24 F.4th 1315, 1319 (9th Cir. 2022). Our en banc resources are rarely well spent stirring up circuit splits. A few responses to my esteemed dissenting colleagues. ... "

[Immigration law and administrative law scholars will be parsing this one for some time, I predict.]