Jaswant Lal Shakuntla Lal Rikesh Lal v. Immigration and Naturalization Service ( 2001 )

268 F.3d 1148 (9th Cir. 2001)

JASWANT LAL; SHAKUNTLA LAL; RIKESH LAL, PETITIONERS,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.

No. 98-71087

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted December 9, 2001
Filed: July 3, 2001
Amended October 22, 2001

William Roman Gardner and Miguel D. Gadda, San Francisco, California, for the petitioners.

David W. Ogden, Acting Attorney General, Civil Division; Kirsten A. Giuffreda, Senior Litigation Counsel; and John P. Moran, Attorney, Office of Immigration Litigation, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. I & NS Nos Aaz-oww-vts, Atw-hgx-tgk, Azn-mgh-fsh.

Before: B. Fletcher,*, O'Scannlain, and Hawkins, Circuit Judges.

1

Prior Report: 255 F.3d 998.

ORDER

2

The Government's petition for rehearing is granted to the extent set forth following. We amend the Opinion filed July 3, 2001, and appearing at page 998.

3

Add a footnote at p. 1003 at the end of the last sentence before section "a." ("Such a requirement is an untenable interpretation of the exception."):

4

"The government in its petition for rehearing before the panel states '[W]e do not seek to disturb the relief that this court awarded to petitioners, nor do we seek to disturb the essential judicial underpinnings for that relief (supra note 3).' Petition for Rehearing at 7. It requests simply that we not hold that the BIA has changed its interpretation of 8 C.F.R. &#167 208.13(b)(i)(ii) (1999) to require that ongoing disability be shown. Rather, the BIA continues to see it as a factor to be considered as part of the totality of the circumstances and simply should have granted relief in this case after reviewing all the factors. We accept the government's view that the BIA did not interpret the regulation to require ongoing disability.

5

Add a footnote to p. 1019 of Judge O'Scannlain's dissent, at the end of the sentence beginning "Rather than establishing...," as follows:

6

"Indeed, the government states precisely this view in its petition for rehearing, as the majority acknowledges. Maj. op. at n.3."No further petition for rehearing will be entertained.

Notes:

*

Following the death of Judge Williams, Judge B. Fletcher was drawn to replace him. She has listened to the tape of the argument and read the briefs and the administrative record.