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Michael Angelo Samonte Planes v. Holder, En Banc Order

With seven judges dissenting, the Ninth Circuit voted not to re-hear en banc the panel decision in Planes v. Holder (discussed in my previous blog post). Thus, the rule in the Ninth Circuit is that a noncitizen may be removed from the U.S. if found guilty of a crime even if the conviction is not final because there is a pending direct appeal as of right. And if the noncitizen wins his or her appeal of the criminal conviction after removal? The only apparent option is for the noncitizen, now outside of the U.S., to attempt to request discretionary reopening of the removal order, which the Board of Immigration Appeals may deny (and has denied in some cases).